Sharkey v. Police Department of Southampton

The petitioner Charles O. Sharkey, a police officer employed by the Town of Southampton Police Department, was involved in an automobile accident, while off-duty, on August 16, 1987. The instant record reveals nothing about the accident, other than the fact that one person was killed and another was seriously injured. In December 1987 he was indicted and charged with two counts of driving while intoxicated, vehicular assault in the second degree, vehicular manslaughter in the second degree, and criminally negligent homicide. Pursuant to the collective bargaining agreement between the Patrolmens’ Benevolent Association, the union representing the petitioner, and the Town of Southampton, the Town demanded arbitration to determine whether the petitioner could be summarily discharged from his position. Before that issue was decided, the petitioner pleaded guilty to one misdemeanor [656] count of driving while intoxicated in full satisfaction of the indictment. Based upon this guilty plea, the Town summarily terminated the petitioner’s employment pursuant to Public Officers Law § 30 (1) (e). The petitioner challenged the foregoing determination in the instant CPLR article 78 proceeding. The court upheld the Town’s determination and dismissed the proceeding. We reverse. Public Officers Law § 30 (1) (e) provides that "[e]very office shall be [vacated] upon the * * * "conviction of a felony, or a crime involving a violation of [an officer’s] oath of office”. This vacatur is automatic and there is no need for a hearing (Matter of Briggins v McGuire, 67 NY2d 965, cert denied 479 US 930; Matter of Toro v Malcolm, 44 NY2d 146, cert denied 439 US 837; Lemieux v City of Niagara Falls, 138 AD2d 945; Matter of Graham v Coughlin, 135 AD2d 1014, affd 72 NY2d 1014; Matter of Pesale v Beekman, 81 AD2d 590, affd 54 NY2d 707; Matter of Hodgson v McGuire, 75 AD2d 763; Sroka v Municipal Civ. Serv. Commn., 57 AD2d 1064). When a police officer is convicted of a felony, automatic vacatur of his or her office is mandated (see, Matter of Toro v Malcolm, supra; Matter of Graham v Coughlin, supra; Matter of Ring v Rodriguez, 141 Misc 2d 164; Matter of Pauley v Noeppel, 1 Misc 2d 928). However, when the crime committed is not a felony, it must be one which violates the officer’s oath of office in order for the offending officer to be subject to summary termination. "Case law generally provides that if the crime relates to the duties of the office, the crime involves a violation of the oath of office” (County of Broome v Conte, 120 Misc 2d 1050, 1055). "In making such a determination, the court must consider the circumstances surrounding the conviction as well as 'the public’s right to rest assured that its officers are individuals of moral integrity in whom they may, without second thought, place their confidence and trust’ ” (County of Broome v Conte, supra, at 1055; see, Matter of Toro v Malcolm, supra, at 152; Matter of Graham v Coughlin, supra, at 1016; Matter of Ring v Rodriguez, supra, at 166). We decline to hold, as a matter of law, that an off-duty police officer’s involvement in an automobile accident, even while intoxicated, necessarily establishes that he or she is engaged in conduct so intimately related to official duties as to constitute a per se violation of his or her oath of office. The record, in the instant case, neither discloses the nature of this officer’s duties nor explains the circumstances surrounding the [657] accident. The Safety Hearing Bureau of the New York State Department of Motor Vehicles determined, after a hearing, that "this accident could not have been avoided by the [petitioner]”, and that there was "not sufficient evidence to take any further action against [his] license”. Thus, there is a substantial question regarding whether the petitioner’s intoxication was the proximate cause of the accident which resulted in the pedestrian’s death. In the event that the petitioner’s intoxication played no part in contributing to the accident, it would be unjust to expose him to a harsher penalty based upon tragic consequences which may have been entirely unrelated to his misconduct. Inasmuch as the issue of liability remains unresolved, the manner in which the Town summarily terminated the petitioner’s employment violated his due process rights. Moreover, the fact that a police officer has been convicted of a misdemeanor does not necessarily connote that he has violated his oath of office within the meaning of Public Officers Law § 30 (1) (e). Significantly, the Legislature provided for summary termination of employment, not for all convictions but only for felony and oath violating convictions. The circumstances surrounding the conviction clearly constitute an important consideration (see, County of Broome v Conte, supra). Resort to the record is necessary in order to ascertain whether the officer violated his oath of office in a manner warranting summary vacatur. Inasmuch as the record in the instant case is inadequate for that purpose, a hearing is necessary (see, McKinney’s Uncons Laws of NY § 891 [Removal of Certain Policemen; L 1940, ch 834]; Civil Service Law § 75; Town Law § 155). Accordingly, the judgment is reversed, the determination is annulled, and the petition is granted. We note that upon his reinstatement, the petitioner is entitled to back pay from the date of his wrongful termination until the date of his reinstatement (see, Civil Service Law § 77; Matter of Briggs v Scoralick, 147 AD2d 694; Matter of Yeampierre v Gutman, 52 AD2d 608) together with interest, to be calculated from the date of each paycheck to which the petitioner was entitled within that period of time (see, CPLR 5001 [b]; Matter of Kohler v Board of Educ., 142 AD2d 676). Kunzeman, O’Brien and Ritter, JJ., concur.