Foley v. Bratton, 1999 N.Y. Int. 0019 (Feb. 18, 1999).

POLICE OFFICERS - TERMINATION - OATH OF OFFICE CRIME - FELONY

ISSUE & DISPOSITION

Issue

Whether an administrative hearing is required for the termination of a tenured police officer convicted of a felony or an "oath-of-office" crime.

Disposition

No. A tenured police officer is subject to automatic expulsion if convicted of a felony or "oath-of-office" crime. An administrative hearing is required for the dismissal of a tenured police officer for other convictions.

SUMMARY

Two off-duty police officers, Foley and Griffin, in two separate incidents, were convicted of a class B misdemeanor and violation in one case, and two class A misdemeanors in the other. Both officers were summarily dismissed by the Police Commissioner in accordance with section 14-115 of the New York City Administrative Code. Both officers independently commenced article 78 proceedings to annul their respective dismissals. In Defendant Foley's case the Supreme Court initially granted his petition, but dismissed it on re-argument; in Defendant Griffin's case the Supreme Court dismissed his petition. In both cases the Appellate Division affirmed.

The Court of Appeals granted leave to resolve the interplay and apparent discord between New York City Administrative Code § 14-115, Public Officers Law § 30(1)(e), and Unconsolidated Laws § 891, which are three statutory provisions governing summary removal and hearing-based removal of police officers.

The Court concluded that the statutory provisions could be reconciled. They determined that the legislature chose to draft the statutes to provide for the automatic removal of a tenured police officer when a conviction was sufficiently serious. Conviction of a felony or an oath-of-office crime is sufficiently serious for automatic removal under the statutes. For off-duty misdemeanor conduct to qualify as an oath-of-office crime, the Court relied on Duffy v. Ward, 81 N.Y.2d 127 (1993). Under Duffy, the violation must be apparent from the Penal Law's definition of the crime in order to qualify as an oath-of-office crime. The Court held that administrative hearings are always required as a predicate for termination of tenured police officers convicted of non-oath-of-office crimes.

The Court of Appeals declined to decide whether the misdemeanors for which either officer was convicted qualified as an "oath-of-office" crime. Accordingly, they ordered the Appellate Division rulings reversed with costs, and the cases remitted and remanded to the Supreme Court for further proceedings.

Prepared by the liibulletin-ny Editorial Board.