Labor & Employment Law

Police officer removed from his position following is conviction of a crime involving conduct in violation of his oath of office

Police officer removed from his position following is conviction of a crime involving conduct in violation of his oath of office
Matter of Feola v Carroll, 2008 NY Slip Op 04948, Decided on June 5, 2008, Court of Appeals

City of New Rochelle police officer Donald Feola, was terminated from his position pursuant to Section 30.1(e) of the Public Officers Law following his conviction of convicted of violating Penal Law § 260.10(1) -- endangering the welfare of a child. The underlying incident that resulted in Feola?s conviction occurred ?outside the line of duty.?

Feola sued, seeking reinstatement to his former position and a pre-termination hearing pursuant to Civil Service Law §75.

New Rochelle asked Supreme Court to dismiss Feola?s Article 78 petition, arguing that Feola's conviction involved conduct in violation of his oath of office and therefore his position as a police officer automatically became vacant upon his conviction on that charge. Supreme Court granted the City?s motion, ruling that Feola's conviction for endangering the welfare of a child constituted an oath of office violation, rendering a pre-termination hearing unnecessary.

The Appellate Division reversed the Supreme Court?s decision, (see 25 AD3d 697) and granted Feola's petition. It also remitted the matter to Supreme Court for a calculation of back pay and interest Feola claimed was due him. The court decided that Feola was entitled to a due process hearing because Penal Law §260.10(1) ?could not be construed, on its face, as constituting a crime involving 'willful deceit or calculated disregard for honest dealings' or 'an intentional dishonesty or corruption of purpose' . . . as that crime is not limited to conduct likely to be injurious to the moral welfare of a child."

The Court of Appeals granted leave to appeal and after hearing the arguments of the parties, in a 5 to 2 decision reverse the Appellate Division?s ruling.

The court said that the Public Officers Law § 30(1)(e) is a self-executing statute which provides that an office is deemed vacant upon an officer's "conviction of . . . a crime involving a violation of his oath of office." Citing Duffy, 81 NY2d at 134, the Court of Appeals said that a misdemeanor conviction for conduct outside the line of duty will be considered a crime involving a violation of one's oath of office under Public Officers Law §30(1)(e) only if the violation is apparent from the Penal Law's definition of the crime.

The proper inquiry under Duffy, said the court, ?is whether petitioner was convicted of a misdemeanor which, on its face, demonstrates a lack of moral integrity, not whether the prohibited conduct may have had a particular effect, in this case, on a particular child victim.? A facial review of the elements of the crime of endangering the welfare of a child under Penal Law § 260.10(1) indicates clearly that it is a "crime involving a violation of [an officer's] oath of office."

The decision notes that ?When a public officer's interest in employment is weighed against the interest of this State's citizens in having public officers possessed of moral integrity, "the balance must be struck in favor of the public."

Full post as published by New York Public Personnel Law on June 06, 2008 (boomark / email).