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Employee acquitted of criminal and disciplinary charges entitled to back pay

By Harvey Randall, Esq.

Employee acquitted of criminal and disciplinary charges entitled to back pay
Bullock v Kelly, 17 Misc.3d 862

In this Article 78 proceeding, Clayton Bullock asked the court to annul the determination of New York City Police Commissioner Raymond W. Kelly denying his request for back pay and to award him such back pay and other benefits.

Bullock was appointed as a police officer with NYPD in July 1986. On October 17, 2002, Bullock was arrested on charges of second-degree murder in connection with the death of a woman, Donna Towe. Bullock was also suspended from the NYPD without pay.

Bullock retained Dr. Charles Wetli, the chief medical examiner of Suffolk County as an expert. Dr. Wetli conducted a review of the forensic and medical findings regarding the charges against Bullock and determined that the findings resulting from the original autopsy conducted by the New York City Medical Examiner?s Office were incorrect. On October 9, 2003, based on Dr. Wetli expert opinion, the District Attorney?s Office consented to Bullock being released from prison on his own recognizance. On October 27, 2003, NYPD reinstated Bullock and placed him on modified duty with full pay and benefits.

On February 9, 2004, after a jury trial in the Supreme Court, Bronx County, Bullock was acquitted of all the criminal charges related to Towe?s death. Subsequently Bullock was found not guilty of two of the three administrative disciplinary charges filed against him and the third charge was dismissed.

In response to Bullock?s request that the Police Department reimburse him for the time, pay and benefits he lost while he was suspended without pay, the Department said:

?Since Police Officer Bullock could not be relieved from suspension as he was not available for assignment [because of his then incarceration] to any duty status, he is not entitled to be paid for the time in question. Indeed, once Police Officer Bullock was released from incarceration and available for assignment, he was restored to modified duty status without delay and with full pay and benefits.?

The question to be resolved by Judge Madden: Is the City required to give Bullock back pay and benefits in accordance with Section 14-123 of the New York City Administrative Code?
Section 14-123 provides:

Suspension of members of force. The commissioner shall have power to suspend, without pay, pending the trial of charges, any member of the force, If any member so suspended shall not be convicted by the commissioner of the charges so preferred, he or she shall be entitled to full pay from the date of suspension, notwithstanding such charges and suspension.

Judge Madden said that ?the unambiguous language of Section 14-123 indicates that when, as here, a member of the police force is not convicted of the departmental charges preferred against him, he is entitled to full pay, which would presumably include benefits, from the date of suspension, notwithstanding the charges and suspension.?

The Department contended that since Bullock was unable to work while incarcerated and was placed on modified duty and restored to full pay when he was able to return to duty, Bullock should not be awarded back pay and accompanying benefits as this would constitute an unlawful giving of public funds in violation of Article VII, Section 1 of the New York Constitution. The court rejected this argument, ruling that it was without legal support.

Judge Madden ruled that as Bullock was not found guilty of any of the departmental charges against him, he was entitled to back pay and benefits for the full period of his suspension in accordance with the unambiguous language of City?s Administrative Code, Section 14-123.
Accordingly, the City was ordered to provide Bullock with 376 days of back pay and benefits.

A related issue is addressed by the Public Officers Law -- the reinstatement of a public officer removed from his or her office upon his or her conviction of a crime by operation of law pursuant to Section 30.1(e) of the Public Officers Law.

In the event a public officer has been removed from public officer pursuant to Section 30.1(e), if the conviction is reversed or vacated after the individual has been removed from his or her public office, Section 30.1(e) permits a non-elected official to apply for reinstatement.

Specifically, Section 30.1(e), in pertinent part, provides that the individual may apply to the appointing officer for reinstatement: ? upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy [emphasis supplied].

Section 30.1(e) further provides that upon receiving the individual?s application, the appointing authority shall hold a hearing to determine whether reinstatement of the individual is warranted.

The record of the Section 30.1(e) hearing is to include the final judgment of the court that reversed or vacated such conviction and may also include the individual?s entire employment history of the applicant and any other submissions that may form the basis of the grant or denial of reinstatement notwithstanding the reversal or vacating of such conviction.

After reviewing the Section 30.1(e) hearing record, the appointing authority may, as a matter of discretion, reappoint the non-elected official to his or her former office, or to a similar office if his or her former office is no longer available.

In contrast to the mandate set out in Section 14-123 of the City Code with respect to back pay relied upon by Judge Madden, Section 30.1(e) provides that in the event the individual is so reinstated, the appointing authority may, as a matter of discretion, award the individual salary or compensation in full or in part for the period from the date such office became vacant to the date of the individual?s reinstatement [emphasis supplied].

Full post as published by New York Public Personnel Law on April 30, 2008 (boomark / email).