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July 17, 1981

Wilma GREENE and Clarence Callis, Plaintiffs,
Honorable Robert McGUIRE, Police Commissioner of the City of New York; Honorable Robert Abrams, Attorney General of the State of New York, and Honorable Hugh Carey, Governor of the State of New York, Defendants

The opinion of the court was delivered by: GOETTEL

Plaintiffs Wilma Greene and Clarence Callis are former members of the New York City Police Department. Defendants named in this action are New York City Police Commissioner Robert J. McGuire, Attorney General Robert Abrams, and Governor Hugh Carey. Both plaintiffs were convicted of felonies, which resulted in an automatic forfeiture of their public offices pursuant to subsection 30(1)(e) of the New York Public Officers Law (McKinney Supp.1980). *fn1" The convictions were reversed some years later by the Appellate Division and the indictments dismissed. People v. Cona, 60 A.D.2d 318, 401 N.Y.S.2d 239 (2d Dep't 1978). The New York Court of Appeals affirmed the Appellate Division decision. 49 N.Y.2d 26, 399 N.E.2d 1167, 424 N.Y.S.2d 146 (1979). Plaintiffs then made timely application for reinstatement to their former positions as police officers along with back pay. Their applications were denied without a hearing.

Plaintiffs now seek summary judgment declaring unconstitutional subsection 30(1)(e) of the New York Public Officers Law as violative of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. *fn2" (Plaintiffs also seek reinstatement with back pay.)

 Plaintiffs' due process claim challenges the vacatur provision of subsection 30(1)(e), which automatically deprives a public officer of his office upon conviction of a felony or certain misdemeanors without providing for a stay pending appeal or for a hearing in the event of a subsequent reversal. The equal protection challenge is predicated on the allegation that subsection 30(1)(e) is not rationally related to some legitimate state interest.

 For the reasons set forth below, plaintiffs' motion for summary judgment is hereby granted in part. *fn3" Plaintiffs are entitled to a hearing for the sole purpose of determining whether their conduct should bar reinstatement to their former positions without back pay.

 Due Process

 The Fourteenth Amendment guarantees that a person will not be deprived of life, liberty, or property without due process of law. "Procedural due process imposes constraints on governmental decisions which deprive individuals of "liberty' or "property' interests within the meaning of the Due Process Clause of the ... Fourteenth Amendment." Mathews v. Eldridge, 424 U.S. 319, 332, 96 S. Ct. 893, 901, 47 L. Ed. 2d 18 (1976).

 In determining whether due process is offended in the instant case, it is necessary to inquire whether plaintiffs had a protected interest, which, under the circumstances, they were deprived of without due process. See Meachum v. Fano, 427 U.S. 215, 223-24, 96 S. Ct. 2532, 2537-2538, 49 L. Ed. 2d 451 (1976); Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 1589, 29 L. Ed. 2d 90 (1971). Should an interest protected by the Fourteenth Amendment be found, it would then be necessary to determine what procedures will provide due process. Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972).

 In Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972), the Supreme Court stated:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it....
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

 The Court has expressed those views in other cases as well. See Arnett v. Kennedy, 416 U.S. 134, 151, 94 S. Ct. 1633, 1642-1643, 40 L. Ed. 2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 601, 92 S. Ct. 2694, 2699, 33 L. Ed. 2d 570 (1972).

 Under New York law, it appears that plaintiffs' prior status as permanent civil service employees vested them with a property interest in their former positions. *fn4" See Economico v. Village of Pelham, 50 N.Y.2d 120, 405 N.E.2d 694, 428 N.Y.S.2d 213 (1980); Johnson v. Director, Downstate Medical Center, 52 A.D.2d 357, 384 N.Y.S.2d 189 (2d Dep't 1976), aff'd, 41 N.Y.2d 1061, 364 N.E.2d 837, 396 N.Y.S.2d 172 (1977) (per curiam). Cf. Baden v. Koch, 638 F.2d 486 (2d Cir. 1980). While a police officer may be suspended for suspected misconduct, N.Y.C.Adm.Code § 434a-20.0, specific due process requirements must be complied with before a police officer with permanent civil service status can be disciplined or dismissed from the force. N.Y.Civ.Serv.Law § 75 (McKinney 1973 & Supp.1980).

 This is not to imply that plaintiffs were entitled to a hearing prior to their forfeiture of public office. The New York Court of Appeals has held that, under subsection 30(1)(e) of the New York Public Officers Law, a felony conviction of a public officer will automatically result in that office becoming vacant. See Toro v. Malcolm, 44 N.Y.2d 146, 149-50, 375 N.E.2d 739, 741, 404 N.Y.S.2d 558, 561 (1978). Whatever property interest existed in that office is extinguished on conviction under the law of New York, Economico v. Village of Pelham, supra, 50 N.Y.2d at 126, 405 N.E.2d at 697, 428 N.Y.S.2d at 215-16, and the reversal of a conviction will not entitle the former public officer to automatic reinstatement even though the disability is removed. Toro v. Malcolm, supra, 44 N.Y.2d at 150, 375 N.E.2d at 741, 404 N.Y.S.2d at 561; Sroka v. Municipal Civil Service Commission of City of Buffalo, 57 A.D.2d 1064, 395 N.Y.S.2d 854 (4th Dep't 1977). A police officer holds a position of utmost public trust and is in a class separate from most other civil service employees. Baker v. Cawley, 459 F. Supp. 1301, 1305 (S.D.N.Y.1978), aff'd without opinion, 607 F.2d 994 (2d Cir. 1979). "The slightest suspicion cast upon the honesty and integrity of the police officer makes his services to the Department and to the public, at best, doubtful." Id. at 1306 (quoting Cugell v. Monaghan, 201 Misc. 607, 611, 107 N.Y.S.2d 117, 122 (S. Ct.N.Y.Co.1951)). A stay of the subsection 30(1)(e) vacatur provision pending appeal would therefore have been inappropriate under the circumstances.

 In the instant case, however, plaintiffs' convictions were ultimately reversed. The circumstances that led to the application of subsection 30(1)(e) no longer exist. It is inherently unfair to preclude even the possibility of plaintiffs' ever regaining their former positions. Although plaintiffs are not entitled to automatic reinstatement or back pay, they are at least entitled to have their situation ...

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