Labor & Employment Law

Police officers? applications for reinstatement after conviction reversed rejected

By Harvey Randall, Esq.

Police officers? applications for reinstatement after conviction reversed rejected
Bruder v Kelly, 17 Misc.3d 372

The Public Officers Law Section 30.1(e)¹ provides for the removal of public officers upon their conviction of a felony or a crime involving a violation of their oath of office.

Two New York City police officers, Thomas Bruder and Thomas Wiese, were convicted in connection with the assault of Abner Louima on August 9, 1997 by police officers. When their convictions were overturned by the U.S. Circuit Court of Appeals, Second Circuit, they asked to be reinstated to their former positions.

Judge Branstein upheld the Police Department?s rejection of their respective applications for reinstatement with back pay retroactive to the date of their convictions in 2006 ?on the strength of the findings of the hearing officer? who reviewed their administrative petitions.

The Commissioner refused to reinstate these police officers based on the thorough report indicating that these officers? "otherwise fine records" and 82 letters attesting to their good character were considered. Reinstatement was denied after consideration of the "final judgment" of the reversing court and all of the parties' submissions, based on evidence that the officers impeded law enforcement authorities' investigation of one of the most notorious cases of police brutality in New York history.

The court said that the officers were not reinstated because they themselves relayed inconsistent accounts of the events of August 9, 1997 and "remain tainted." It does not matter that they are conviction free "given the lingering doubts about their credibility." Regardless of whether they ultimately would have been convicted of other crimes, there was a rational basis for the Commissioner, as a matter of discretion, refusing to return them to NYPD service in view of the importance of the public trust in police officers.

Finding that the two officers had ?a full and fair opportunity to be heard with respect to their reinstatement application,? the decision indicates that the Police Commissioner was not arbitrary or capricious, nor did he abuse his discretion in determining that doubts about their credibility outweighed their otherwise good records as the basis for denying their applications for reinstatement.

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¹Section 30.1(e) of the Public Officers Law provides as follows:

§ 30. Creation of vacancies. 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 a violation of his oath of office, provided, however, that a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted. The record of the hearing shall include the final judgment of the court which reversed or vacated such conviction and may also include the entire employment history of the applicant and any other submissions which may form the basis of the grant or denial of reinstatement notwithstanding the reversal or vacating of such conviction. Notwithstanding any law to the contrary, after review of such record, the appointing authority may, in its discretion, reappoint such non-elected official to his former office, or a similar office if his former office is no longer available. In the event of such reinstatement, the appointing authority may, in its discretion, award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement or any part thereof.

Full post as published by New York Public Personnel Law on April 16, 2008 (boomark / email).