13.9 - (1) Generally

• Jurisdiction: New York

(1) Generally

There is an 18-month statute of limitations, beginning on the date of the occurrence of the act in question, within which disciplinary or removal proceedings must be commenced.⁶²⁰⁰ An exception exists where the employee’s actions, if proven, would constitute a crime, in which case charges concerning such actions may be brought at any time.⁶²⁰¹

Section 75 provides certain basic rights to an employee against whom disciplinary action is proposed. These include a right to written notice of the action and the reasons for it, a copy of the charges and a minimum of eight days within which to file a written response.⁶²⁰² Bills of particulars are also available pursuant to the Civil Service Law,⁶²⁰³ but they are not required and may prove unnecessary given the circumstances.⁶²⁰⁴ There is no right to discovery.⁶²⁰⁵

An employee who has been served with charges may be suspended without pay for a period not exceeding 30 days pending the hearing and determination of charges.⁶²⁰⁶ An employee can only be suspended without pay for a period in excess of 30 days where there is a negotiated collective bargaining agreement authorizing it⁶²⁰⁷ or a statute existing prior to the 1958 enactment of Civil Service Law § 75 providing for pre-hearing suspensions for longer than 30 days and which was not repealed or modified by § 75.⁶²⁰⁸ However, the federal courts have found that the suspension without pay, without a pre-suspension due process hearing, of a permanent employee who has a property right in continued employment is a violation of the employee’s due process rights. In one case, a federal court noted that, while the due process need not be elaborate, it must include notice and the opportunity to respond to present reasons why the suspension should not be imposed.⁶²⁰⁹

Where a tenured police officer is convicted of a crime specified in Public Officers Law § 30(1)(e), the officer may be terminated pursuant to that section.⁶²¹⁰ The Court of Appeals reversed Griffin v. Bratton,⁶²¹¹ holding that “an administrative hearing is required as a predicate for termination of a tenured police officer, unless the officer is convicted of a crime specified in Public Officers Law § 30(1)(e).”⁶²¹² Section 30(1)(e) provides: “(1) Every office shall be vacant upon the happening of one of the following events before the expiration of the term thereof: * * * (e) His conviction of a felony or a crime involving his oath of office.” In so holding, the Court of Appeals rejected the contention of the New York City Police Commissioner that the administrative hearing requirement in New York City Administrative Code § 14-115 was automatically satisfied by the misdemeanor convictions of the two police officers at issue, Foley and Griffin.⁶²¹³ The Court stated, “If the Commissioner claims that a particular crime falls under the ‘oath of office’ category, he may proceed under Public Officers Law § 30(1)(e).”⁶²¹⁴ For other convictions, an administrative hearing is required pursuant to Administrative Code § 14-115(b) as a basis for dismissal of a tenured police officer. At least one court has held, however, that termination pursuant to Public Officers Law § 30(1)(e) may not be invoked after a § 75 disciplinary proceeding has been commenced. In Whitfield v. Fraser,⁶²¹⁵ the U.S. District Court for the Southern District of New York discussed the need for the employer to decide whether to proceed under Public Officers Law § 30(1)(e) or the disciplinary process available pursuant to Civil Service Law § 75. The court held that, by failing to invoke Public Officers Law § 30(1) immediately upon Whitfield’s criminal conviction and, instead, electing a disciplinary process pursuant to Civil Service Law § 75, the employer essentially conceded that the criminal offense was insufficient to support automatic termination pursuant to Public Officers Law § 30(1)(e) and that a factual hearing would be necessary.

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Notes:

^[6200] . Civ. Serv. Law § 75(4); see Mikoleski v. Bratton, 249 A.D.2d 83, 671 N.Y.S.2d 75 (1st Dep’t 1998) (relevant date for determining whether charges were timely commenced is date of service of first set of charges and specifications) (citing Nagle v. Bratton, 245 A.D.2d 122, 665 N.Y.S.2d 886 (1st Dep’t 1997)); see...