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Automatic removal of a public officer upon conviction of a crime
Public Officers Law Section 30.1(e)

In some instances it is not necessary for the appointing authority to hold a disciplinary hearing in order to terminate an individual. Section 30.1(e) of the Public Officers Law, in pertinent part, provides that a public officer shall be removed from office upon ?? his [or her] conviction of a felony, or a crime involving a violation of his [or her] oath of office?.?

Typically such termination is ?by operation of law? and all that is required is the appointing authority determination that Section 30.1(e) applies with respect to the individual involved.

In Bowman v Kerik, 271 A.D.2d 225, the court said that Section 30.1(e) of the Public Officers Law provides that a public office becomes vacant upon the conviction of the incumbent "of a felony, or a crime involving a violation of his oath of office." The significance of this provision is that no "pre-termination hearing" that may otherwise be mandated by law such as Section 75 of the Civil Service Law or a Taylor Law disciplinary grievance procedure is required to effect the termination.

As the plea of guilty or nolo contender* has the same effect as a conviction, Section 30.1(e) of the Public Officers Law is operative respect to declaring the position vacant in the event the public enters such a plea with respect to "of a felony, or a crime involving a violation of his oath of office."

As an example, a trustee of the State University pleaded guilty of attempted grand larceny in the fourth degree, a Class A misdemeanor. Holding that the trustee was a public officer, the Attorney General said that her conviction based on her plea of guilty would automatically result in her removal from officer "if the misdemeanor involved a violation of her oath of office." In this instance he decided that the guilty plea to the misdemeanor resulted in the vacating of the position "by operation of law." [Formal opinions of the Attorney General, 97-F7].

In the event an individual is convicted of a crime but his or her position is not vacated pursuant to Section 30.1.e, he or she may be served with disciplinary charges involving the same event or events. However, as his or her conviction is "res judicata"** -- the only issue to be resolved in the administrative disciplinary proceeding is the penalty to be imposed, which penalty must be consistent with the Pell doctrine [Matter of Pell, 34 NY2d 222].

As the court held in Kelly v Levin, 440 NYS2d 424, if a jury finds a person guilty beyond a reasonable doubt of, say, larceny, or the individual enters a plea of guilty to the larceny, a disciplinary hearing officer need hear no other evidence to render a verdict of guilty regarding a parallel charge of theft in an administrative disciplinary proceeding.

Further, a finding of ?not guilty? in a criminal proceeding does not prevent the appointing authority from going forward with an administrative disciplinary hearing. Although and individual may have been be found not guilty beyond a reasonable doubt in a criminal action, he or she may still be found guilty of parallel charges in an administrative disciplinary proceeding under the standard of substantial evidence or preponderance of the evidence tests used in such disciplinary proceedings.

On a related point, the appointing authority has no obligation to postpone taking administrative disciplinary action against an employee even if a county District Attorney requests that the administrative disciplinary action be postponed until the criminal action is completed. This was the point made by the court in Levine v New York City Transit Authority, 70 AD2d 900, affirmed 49 NY2d 747.

NB: Section 30.1(e) also sets out proceeds for the reinstatement of a public officer, other than to a public office to which he or she had been elected, if the conviction was the sole basis for the position being declared vacant and such conviction is overturned on appeal.

* A plea in a criminal case by which the defendant answers the charges made in the indictment by declining to dispute or admit the fact of his or her guilt.

** "The thing has been judged" meaning that the issue before the tribunal -- i.e., guilt of the charge -- had already been decided at an earlier tribunal of competent jurisdiction.

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