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Statute of limitations for filing Section 75 disciplinary charges

Statute of limitations for filing Section 75 disciplinary charges
Wade v Ticonderoga Town Board, 256 AD2d 860, motion for leave to appeal denied, 93 NY2d 804

Section 75 disciplinary charges were brought against John K. Wade, then serving as the Town of Ticonderoga?s chief of police. The charges alleged that Wade had engaged in sexual misconduct directed at town employees or former town employees. Wade was found guilty of the charges and the penalty imposed was dismissal.

Wade appealed, contending that certain charges filed against him were barred by the statute of limitations as they were brought more than 12 months after the relevant incident. He argued that Section 75.4?s 18-month statute of limitation for bring such charges did not apply in his case because he was a ?managerial employee? and the statute of limitations for such employees is one-year after the occurrence of the alleged incompetency or misconduct occurred.

The Appellate Division, however, pointed out that Wade?s theory overlooked one critical phrase contained in Section 75.4: a ?state employee who is designated managerial or confidential? within the meaning of the Taylor Law. The court said ?the simple answer is that, as Chief of a Town police force, [Wade] was not a State employee.?

Accordingly, the court ruled, Section 75.4?s ?general 18-month Statute of Limitations will govern all of the specifications against [Wade] except those which, ?if proved in a court of appropriate jurisdiction, [would] constitute a crime, in which case no limitations period applies.?

Apparently some of the charges were brought more than 18 months after the underlying incident. The Appellate Division commented that such charges, ?if established at trial, have made out either the crime of sexual abuse in the third degree [Penal Law Section 130.55] or the crime of aggravated harassment in the second degree [Penal Law Section 240.30(1)] or both.?

As to the penalty imposed, dismissal, the court said that Wade?s ?unprovoked, unwelcome and unwarranted sexual advances, sexual contact and demeaning comments of a sexual nature directed to female employees were entirely inappropriate and constitute conduct unbecoming a police officer.?

Finding that the penalty was ?by no means so disproportionate as to shock our sense of fairness,? the Appellate Division pointed out that in Petties v NYS Department of Mental Retardation and Development Disabilities, 93 AD2d 960, it held that ?sexual harassment in the work place is among the most offensive and demeaning torments an employee can undergo.?
NYPPL

Full post as published by New York Public Personnel Law on November 22, 2010 (boomark / email).