Labor & Employment Law

: New York Public Personnel Law

Termination by operation of law

Termination by operation of law
Maldarelli v Doherty, 7 A.D.3d 384

In some instances a public officer or employee otherwise entitled to a pretermination hearing before he or she may be dismissed is automatically removed from his or her position by operation of law without being given any "notice and hearing."

For example, Section 30(1)(e) of the Public Officers Law provides that a public officer, such as a police officer, automatically vacates his or her position if he or she is convicted of a felony or a crime involving a violation of the individual's oath of office. Here, however, Justice Lippman held that the New York City Department of Sanitation [DOS] removing Louis Maldarelli from his position by "operation of law" because he had been convicted of a crime without his first being served with Section 75 disciplinary charges and without being given a pretermination hearing was unlawful.

DOS's justification for its action: when Maldarelli entered a plea of guilty to the crime of insurance fraud in the third degree, he forfeited his position as a sanitation worker pursuant to New York City Charter Section 1116(a).

Maldarelli, on the other hand, argued that because he was a tenured employee he could not be removed from his position without first being given a hearing upon stated charges pursuant to Civil Service Law Section 75.

Justice Lippman ruled that DOS could not invoke Section 1116(a) and thus deprive Maldarelli of a Section 75 hearing. Accordingly, the court held that Maldarelli's termination was improper because it violated his right to a hearing under the Civil Service Law.

Addressing DOS's alternate grounds for declaring that Maldarelli's position became automatically vacant upon his being convicted of a felony -- Section 30(1)(e) of the Public Officers Law -- Justice Lippman, citing Tepidino v City of New York, 50 Misc2d 324, said that:

It has long been the rule that sanitation workers are not public officers but public employees.

As it has often been observed, although all public officers are public employees, not all public employees are public officers.

Where, however, the enabling statute does not itself declare the individual to be a public officer, the courts have viewed a public officer as one "whose position is created, and whose powers and duties are prescribed, by statute and who exercises a high degree of initiative and independent judgment." Justice Lippman said that "clearly" the position of sanitation worker does not fall within that definition.

The Appellate Division agreed and dismissed the Sanitation Department?s appeal.

[Note: That branch of the Department?s appeal from the Supreme Court?s order fixing the amount of back pay due Maldarelli was unanimously dismissed, without costs, as abandoned.]

Full post as published by New York Public Personnel Law on August 20, 2009 (boomark / email).