MICHAEL D. STALLMAN, J.
In this CPLR article 78 proceeding, petitioner, a former veteran police officer, seeks to annul respondents' determination that he was automatically terminated as a police officer by operation of law due to his guilty plea to the class A misdemeanor of offering a false instrument for filing in the second degree; that he was not entitled to a hearing; and that he was therefore not eligible to retire and collect his pension.
Petitioner Richard Depamphilis was a member of the New York City Police Department (NYPD) for 26 years, beginning in 1984, and the NYPD awarded him a Meritorious Police Duty medal in 1985. In 1986, petitioner was assigned to the NYPD's Mounted Unit.
In 2006, petitioner was one of five committee members responsible for receiving applications and making recommendations to the NYPD Contract Administration Unit regarding contract bids to become a vendor to care for retired NYPD
Petitioner recommended that Nanninga be awarded a contract, and the Contract Administration Unit awarded the Stone Horse Inn a contract in the amount of about $2.5 million. Respondents assert that petitioner did not disclose his personal relationship with Nanninga, and that he was the only committee member assigned to visit the Stone Horse Inn prior to recommending that Nanninga be awarded a contract. In 2007, petitioner was promoted to the position of Detective Specialist.
On March 12, 2010, petitioner and Nanninga were arrested, and both pleaded guilty to one count of offering a false instrument for filing in the second degree, a class A misdemeanor (Penal Law § 175.30). As part of the plea agreement, petitioner and Nanninga were jointly required to pay $25,000 to the NYPD as restitution, and were precluded for life from submitting public bids, or applying for contracts or working for any agency of the City or State of New York. Nanninga was required to forfeit her contract with the NYPD to provide for the care of retired NYPD horses. Petitioner agreed to file for service retirement from the NYPD. Both defendants agreed that their job duties at any corporation, individual, joint venture, subcontractor, or any other employer would not include "any direct or indirect work related duties that connect to or affect the employer's business with the City or State of New York and its agencies," if ever defendants' employer or future employer did business with the City or State of New York. (Verified answer, exhibit 3; People v Depamphilis, Crim Ct, NY County, Mar. 12, 2010, Sciarrino, J., docket No. 2010NY019168.)
Petitioner was also served with formal departmental disciplinary charges. It is undisputed that this was the first time in petitioner's career that he was served with formal departmental disciplinary charges. The charges and specifications, dated March 15, 2010, charged petitioner with the following:
Petitioner apparently executed a "Negotiated Settlement," dated June 3, 2010, which states, in pertinent part:
Petitioner and his attorney also apparently signed a document (which respondents refer to as an acknowledgment), dated June 3, 2010, which states, in pertinent part:
Respondents admit that the NYPD Department Advocate recommended approval of the negotiated plea agreement, which was endorsed by First Deputy Commissioner Rafael Pineiro. However, on November 29, 2010, Police Commissioner Kelly disapproved the negotiated plea.
In a memorandum dated November 29, 2010, Police Commissioner Kelly set forth his finding that petitioner had automatically vacated his position pursuant to Public Officers Law § 30 (1) (e) when he pleaded guilty on March 12, 2010 to Penal Law § 175.30.
The memorandum states, in pertinent part:
By letter dated December 9, 2010, Assistant Commissioner Arnold S. Wechsler notified petitioner that his position as a member of the NYPD had been vacated pursuant to Public Officers Law § 30 (1) (e). (Verified answer, exhibit 10.)
This article 78 proceeding followed. Petitioner argues that respondents' dismissal of petitioner, without a hearing or any other due process protections, was arbitrary, capricious, unlawful, and an abuse of discretion. Petitioner contends that respondents improperly relied upon Public Officers Law § 30.
Public Officers Law § 30 (1) (e) provides that "[e]very office shall be vacant upon ... conviction of a felony, or a crime
In Matter of Duffy v Ward (81 N.Y.2d 127, 131 [1993]), the Court of Appeals discussed the policy concerns of Public Officers Law § 30 (1) (e):
Here, petitioner pleaded guilty to the class A misdemeanor of offering a false instrument for filing in the second degree. (Penal Law § 175.30.) Generally speaking, the entry of a guilty plea constitutes a conviction (CPL 1.20 [13]), and so it does for the purpose of Public Officers Law § 30 (1) (e). (See e.g. Matter of Bowman v Kerik, 271 A.D.2d 225, 225 [1st Dept 2000] [petitioners pleaded guilty to misdemeanor under Tax Law § 1801 (a)]; Matter of Holt v Marinelli, 45 A.D.3d 1317, 1317-1318 [4th Dept 2007] [petitioner pleaded guilty to misdemeanor under Tax Law § 1817 (b) (1)]; Matter of Papa v DeLuca, 160 A.D.2d 876 [2d Dept 1990] [petitioner pleaded guilty to a felony].) Therefore, the issue of whether petitioner should have been granted a pre-termination hearing turns on whether or not petitioner's crime was "a crime involving a violation of his oath of office," which would result in automatic termination pursuant to Public Officers Law § 30 (1) (e).
As a threshold matter, the parties disagree as to whether Matter of Duffy v Ward (81 N.Y.2d 127 [1993], supra) should apply here. In Matter of Duffy, the petitioner, a New York City police officer, was found guilty of the misdemeanor of criminal trespass in the second degree after an off-duty scuffle with another man. Respondents contend that the holding in Matter of Duffy is limited to convictions committed for off-duty conduct.
Respondents contend that the conviction of any misdemeanor committed while a police officer is on duty constitutes a crime involving a violation of the oath of office. However, the Court of Appeals rejected that reasoning in Matter of Duffy:
Thus, under Matter of Duffy, a police officer who commits a misdemeanor while on duty has not automatically committed a
Offering a false instrument for filing in the second degree occurs when, "knowing that a written instrument contains a false statement or false information," a person "offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant." (Penal Law § 175.30.)
Petitioner argues that the degree of his conduct was not so heinous so as to rise to the level required to be considered a violation of his oath of office. Petitioner contrasts his misdemeanor conviction to the felony of offering a false instrument for filing in the first degree, which requires an intent to defraud. (Penal Law § 175.35.) Petitioner points out that offering a false instrument for filing in the second degree (Penal Law § 175.30) requires knowledge that the written instrument contains a false statement, which petitioner contrasts with the situation where one intentionally files a false statement. Petitioner seeks to take refuge in the language in Matter of Duffy that "[m]ore than intent or a criminal mens rea is needed for summary dismissal; there must be an intentional dishonesty or corruption of purpose inherent in the act prohibited by the Penal Law." (Matter of Duffy, 81 NY2d at 135.)
Petitioner's argument is unpersuasive. First, any felony conviction results in automatic expulsion of the convicted public officer pursuant to Public Officers Law § 30 (1) (e); there need be no inquiry as to whether the felony involves a violation of the oath of office. Second, the language that petitioner cites must be read in context with the prior sentence, which states, "For a crime to be one demonstrating a lack of moral integrity, it must be one involving willful deceit or a calculated disregard for honest dealings." (Matter of Duffy, 81 NY2d at 135 [emphasis supplied].) Here, "a calculated disregard for honest dealings" is inherent in the elements of the crime to which petitioner pleaded guilty. The act of offering a false instrument for filing in the second degree is a "corruption of purpose." (Id.)
To the extent that the language "[m]ore than intent or a criminal mens rea is needed for summary dismissal" in Matter of Duffy could be interpreted as applying only to crimes whose elements require a person to act "intentionally" (see Penal Law § 15.05 [definitions of culpable mental states]), such an interpretation would conflict with Matter of Feola v Carroll (10 N.Y.3d 569
Not only do the elements of the subject statute conform to the Duffy analysis, but petitioner's guilty plea allocution in Criminal Court also amply demonstrates petitioner's calculated disregard for honest dealings:
"THE COURT: People, you may begin with Defendant Depamphilis.
Therefore, upon his guilty plea, petitioner was automatically terminated from service as a police officer by operation of Public Officers Law § 30 (1) (e). Because Public Officers Law § 30 (1) (e) is a self-executing statute, no pretermination hearing was required or appropriate. (Matter of Bowman v Kerik, 271 A.D.2d 225 [2000], supra.)
Petitioner's remaining arguments lack merit. Petitioner's automatic termination is not a disciplinary punishment. (Matter of Duffy v Ward, 81 NY2d at 131 ["Summary termination is not a punishment for the officeholder's crime"].) Therefore, petitioner's reliance upon Civil Service Law § 75 is misplaced. In any event, "the New York City Police Commissioner's power to discipline members of the force is governed by the Administrative Code, `not by section 75 of the Civil Service Law.'" (Matter of Montella v Bratton, 93 N.Y.2d 424, 430 [1999], quoting Matter of Scornavacca v Leary, 38 N.Y.2d 583, 585 [1976].) Consequently, petitioner's argument that the automatic termination "shocks the conscience," which is the standard of judicial review applicable to a penalty, is inapposite. Automatic
Petitioner attempts to evoke sympathy by pointing to his prior service record, but the elements of the crime, and petitioner's underlying conduct, involved on-duty misconduct of a serious nature. "[U]nder no circumstances could facts unique to the incident mitigate the violation of the public trust confirmed by, and arising from, the criminal conviction." (Matter of Duffy, 81 NY2d at 133.) Thus, petitioner's service record has no bearing on whether his misdemeanor conviction was a crime involving a violation of his oath of office.
Petitioner seems to consider his conduct as a well-motivated technical misstatement that became accurate later.
Moreover, had the application been truthful, the Stone Horse Inn would have been disqualified, and the publicly-bid contract would have been awarded to another vendor. Petitioner, who had the responsibility for overseeing the integrity of the contract bidding process as part of his official duties, knowingly corrupted the bidding process by favoritism. Petitioner did so by knowingly participating in the filing of the false document, inherently a deceitful act evidencing a calculated disregard for honest dealings.
In light of the court's determination, the court does not consider respondents' alternative argument that petitioner forfeited his office pursuant to New York City Charter § 1116. The court notes that this ground was not invoked in the notice of dismissal sent to petitioner.
Petitioner's conviction by guilty plea automatically caused his office to become vacant because his crime constituted a violation of his oath of office. Respondents' recognition of petitioner's automatic termination was neither arbitrary nor capricious, nor in violation of law.
Thus, the Administrative Code provides for a departmental disciplinary process applicable to convictions for "any criminal offense," in effect, for a criminal offense other than a conviction that automatically terminates employment, i.e., a felony or an "oath of office" misdemeanor. Because a local law cannot change or affect a state statute, Administrative Code § 14-115 cannot be read to require the Commissioner to bring formal written charges and grant a hearing to an officer, convicted of a felony or an "oath of office" misdemeanor. Consequently, the Administrative Code procedural protections apply only where punishment is sought of a current employee; they are not applicable to a former employee whose office automatically became vacant upon conviction pursuant to state law.
However, because petitioner's crime occurred while on duty, and because the prosecution was resolved by a guilty plea, the court's analysis here need not be limited solely to the elements of the offense. Although the Court of Appeals cautioned that Public Officers Law § 30 (1) (e) should not be construed "as giving the Commissioner unbridled discretion to make a fact-based determination about dismissal but foreclosing the opportunity to develop the facts" (Matter of Duffy, 81 NY2d at 133), such concern is not present here. The additional matter that this court is taking into consideration comes from petitioner's allocution on the record under oath, where petitioner made specific factual admissions.
