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Official misconduct

Official misconduct
People v Lynch, Rockland County Court, [Not selected for publication in the Official Reports]

Kevin Lynch, a member of a school board, was charged with ?Official Misconduct? [Penal Law Section 195 et seq] as the result of his voting in favor of the district?s purchasing health insurance policy recommended by a consultant hired by the school district. Lynch allegedly had a ?secret arrangement? with the consultant and his employer, the court said. After the district had accepted the health insurance plan recommended by the consultant, Lynch ?received approximately $107,000 in commissions....?

Section 195.02 provides that a public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit he or she knowingly refrains from performing a duty that is imposed upon him or her by law or is clearly inherent in the nature of his or her office.

Lynch contended that Section 195.02 was unconstitutionally vague because there the law did not set out a standard that could be used to determine conduct that was ?clearly inherent in the nature of an office.?

Essentially Lynch argued that the Section 195.02 ?fails to provide a clear and unmistakable warning as to the acts which will subject one to criminal punishment.? Judge Kelly, however, said ?the essential characteristic of official misconduct is that public servants are under an inescapable obligation to serve the public with the highest fidelity.?

Did Lynch?s vote on the health insurance contract constitute ?official misconduct?? Judge Kelly thought it did, noting that ?... the object of the official misconduct statute is to punish a breach of duty committed with the requisite culpable state of mind ....? Here, said the Court, the evidence reasonably supports the charge that Lynch failed to perform a ?duty clearly inherent in the nature of his office.? In addition, said the Court, Lynch had an ethical obligation to perform said his duties free from conflicts and to disclose such conflicts.

According to the Court, Lynch took an oath of office and was provided with an ethics policy enacted pursuant to General Municipal Law Section 806(a). This policy required that, ?[i]f [Lynch] participates in the discussion or gives official opinion on any legislation before the Board he will publicly disclose on the official record the nature and extent of any direct or indirect financial or other private interest he has in such legislation.? The policy also prohibited Lynch from ?solicit[ing] or accept[ing] any commission, expense, paid trips, or anything of value from individuals or companies who are vendors or potential vendors to the district....?

Judge Kelly concluded that a school board trustee has a duty to procure insurance for the school district "free from conflict? and dismissed Lynch?s motion seeking to have the criminal action against him quashed.

The full text of the ruling is at:
http://nypublicpersonnellawarchives.blogspot.com/

Full post as published by New York Public Personnel Law on August 24, 2010 (boomark / email).