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SUPREME COURT OF NEW YORK, SPECIAL TERM, NASSAU COUNTY 1969.NY.43023 <>; 304 N.Y.S.2d 537; 60 Misc. 2d 973 October 9, 1969 IN THE MATTER OF MONROE S. GOULD, PETITIONER,v.FRANCIS B. LOONEY, AS COMMISSIONER OF THE POLICE DEPARTMENT OF NASSAU COUNTY, ET AL., RESPONDENTS Richard Hartman and Herbert Burstein for petitioner. Morris H. Schneider, County Attorney (Louis Schultz of counsel), for respondents. Bertram Harnett, J. Author: Harnett

Bertram Harnett, J.

Author: Harnett

 Can the Police Commissioner of Nassau County, without a prior hearing suspend a policeman without pay?

This central question of the instant article 78 CPLR proceeding invokes important questions of procedural due process, the balancing of public and private rights, and plain old-fashion statutory construction.

In the circumstances of this case, the court holds that the Nassau County Police Commissioner may suspend the policeman without a hearing, but he may not withhold his pay until after a hearing and determination.

Monroe Gould, a Nassau County policeman for 16 years, was arrested on July 28, 1969 charged with soliciting a bribe while on radar enforcement duty six days earlier. Immediately following the arrest, the Police Commissioner suspended him without pay. Two days later, on July 30, 1969, Gould appeared before the Nassau County Grand Jury on the bribery charges. The Grand Jury dismissed all charges and refused to indict Gould. On August 13, 1969, some 16 days after his suspension, Gould was served with departmental charges and specifications by the Commissioner of Police. The Commissioner ordered Gould to appear before him on August 19, 1969 for arraignment and the fixing of a trial date, giving him at that time the opportunity to plead guilty or not guilty to the charges and specifications.

On August 8, 1969, Gould filed papers instituting these proceedings seeking immediate reinstatement as a policeman with all of his rights and privileges. Oral argument was held in open court on August 18, 1969, and the parties were given until August 20, 1969 to file memoranda. Pursuant to CPLR 1012, the Attorney-General of New York State was notified of apparent constitutional questions and given an opportunity to intervene. The court is advised that on August 26, 1969 the departmental trial was, in fact, held, and on September 9, 1969, Patrolman Gould was found guilty and dismissed from the Nassau County police force.

This proceeding relates only to Gould's initial suspension on July 28, 1969, which was prior to his departmental trial. Analytically, two separate subquestions appear here. First, could Gould have been suspended in the first place before his hearing? Secondly, could this have been without pay?

At one time in the history of our jurisprudence, the concept of due process was limited to conduct of the Federal Government (Communications Comm. v. WJR, 337 U.S. 265; Greene v. McElroy, 360 U.S. 474). As time went by, it became extended to State action (Willner v. Committee on Character, 373 U.S. 96). Procedural due process means the ways of asserting and conducting disciplinary, punishment, or economic deprivation charges and proceedings fairly and openly, with full opportunity for legal rights and remedies to be used by the party under attack (see Willner v. Committee on Character, supra ; Matter of Gault, 387 U.S. 1). In modern times, the sense of requisite fair dealing in the invocation of proceedings has spread quite generally into the activities of public entities, and is manifested even in such frontier decisions as where a student in a public university was held to have a right to procedural due process in interim suspension from school before a full hearing (Stricklin v. Regents of Univ. of Wisc., 297 F. Supp. 416). Moreover, New York State itself has recognized the right of its employees to a certain process. Sections 75 and 76 of the Civil Service Law contain safeguard provisions and procedures under which civil service employees may be charged, suspended, disciplined or removed.

In dealing with this Nassau County occurrence, however, sections 75 and 76 of the Civil Service Law are not applicable. This is because Nassau County operates under a so-called home-rule charter system (County Government Law of Nassau County; otherwise known as the Nassau County Charter [L. , ch. 879, as amd. by L. 1937, ch. 618, and subsequently]) and its own local laws govern the matter of its police discipline. Subdivision 4 of section 76 of the Civil Service Law provides basically that nothing in section 75 or section 76 will affect any local laws relating to the removal or suspension of civil service employees in a competitive status, which includes the police in Nassau County. Local Law No. 3 of 1945 amended section 8-3.0 of the Nassau County Administrative Code (L. 1939, ch. 272, as amd.) to provide that the Police Commissioner shall have jurisdiction over the discipline of the Police Department and that he may promulgate and enforce appropriate rules and regulations. The Nassau County Police Commissioner has adopted rules and regulations, and within these, article IX, rule 9, provides that: "Members of the Department may be suspended from duty whenever in the opinion of the Commissioner of Police such action is necessary". Rules 1 through 8 deal with the report of violations, charges and specifications, service, acknowledgments, attendance of witnesses, arraignment procedure and trial procedure. All of this is interesting to the proceeding at hand, not only because it is a reaffirmance of an essential democracy even within the framework of public employment as a police officer, but because it is also the very legal matrix in which this case rests.

Under the local law as amplified by his rules and regulations, the Police Commissioner had the power to suspend Gould. The suspension of police officers by a Commissioner before the commencement of actual trial or the service of charges has been upheld in various courts in this State. In Brenner v. City of New York (9 N.Y.2d 447, 452), the New York Court of Appeals held under a specific provision of the New York City Administrative Code that a suspension of a police officer by the Commissioner without the service of charges was proper: "so long as departmental charges are filed within a reasonable time after suspension and a trial is thereafter held". (See Matter of Cugell v. Monaghan, 201 Misc. 607; Matter of Morris v. Reid, 210 N. Y. S. 868; Matter of McElroy v. Trojak, 21 Misc. 2d 145.)

There is no showing in this proceeding by the petitioner, who has the burden of proof (Matter of Pruzan v. Valentine, 282 N. Y. 498; Matter of Coombs v. Edwards, 280 N. Y. 361), that the Police Commissioner's conduct in making the suspension was not supported by substantial evidence (Matter of Evans v. Monaghan, 306 N. Y. 312; Matter of Sowa v. Looney, 23 N.Y.2d 329). The mere fact that an officer is not indicted by a Grand Jury for an alleged crime does not mean he is immune from departmental disciplinary action (People ex rel. Wood v. Department of Health of City of N. Y., 144 App. Div. 628, affd. 202 N. Y. 610; cf. Gardener v. Broderick, 392 U.S. 273, 277-278). Different burdens of proof are involved in criminal cases and in disciplinary proceedings which are only civil actions. Moreover, elements such as judgment factors, attitude and ethicality bear on fitness for police duty quite beyond the strictures of the criminal law.

It would also appear that the Police Commissioner brought charges and conducted a trial within a reasonable time after the suspension. (See Brenner v. City of New York, 9 N.Y.2d 447, supra ; Haskins v. Warner, 47 N. Y. S. 2d 793.)

Under the most far-flung notion of procedural due process, there can be no claim to an absolute right by all policemen to blanket protection from any suspension, regardless of provocation, until the completion of a formal hearing. Quite reasonably, the individual facts of occurrence must be weighed. The office of a policeman is much too sensitive and much too aligned with considerations of integrity and reputation and appearance. The necessity of maintaining public confidence demands latitude for the discretion of the Police Commissioner, who is in charge of the force. The police force is essentially a paramilitary organization requiring an ongoing discipline which necessitates the ability of its commander to relieve swiftly its members of duties where appropriate.

The private claim of an individual to a hearing must be weighed against the public interests implicit in the total situation. The United States Supreme Court stated in Cafeteria Workers v. McElroy (367 U.S. 886, 895): "consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Also, see, Kelly v. Wyman (294 F. Supp. 887, 891) where ...

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