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December 28, 1982

ROBERT J. McGUIRE, individually and as Police Commissioner of the City of New York; ARNOLD N. KRISS, individually, and as Deputy Police Commissioner--Trials; JOHN GUIDO, individually, and as Chief of Inspectional Services; and the NEW YORK CITY POLICE DEPARTMENT, Defendants

Lasker, D.J.

The opinion of the court was delivered by: LASKER


This action arises from Leonard Leggio's dismissal from his position as a police officer with the New York City Police Department ("the Department"). Leggio, who had been a police officer since 1970, was charged in Police Department disciplinary proceedings with stealing a $50.00 money order from a criminal suspect.

 Pursuant to the Civil Service Law of the State of New York and the Administrative Code of the City of New York, a disciplinary hearing was held on the charges before a Deputy Police Commissioner, Arnold N. Kriss. Kriss found Leggio guilty of the charges and recommended to the Police Commissioner, Robert J. McGuire, that Leggio be dismissed. The recommendation was accepted and Leggio was dismissed on September 15, 1981.

 Leggio alleges that his dismissal deprived him of property and liberty interests without according him due process of law. He contends that Deputy Police Commissioner Kriss and Commissioner McGuire were biased and partial adjudicators because (1) they had a pecuniary interest in dismissing police officers and (2) they served at the pleasure of elected officials, and hence were subjected to political pressures to "give the appearance of eliminating 'bad cops' from the force . . . [in order] to promote a greater degree of public confidence in the Police Department." (Plaintiff's Memorandum at 21).

 Leggio has also filed a petition under Article 78 of the CPLR in the New York County Supreme Court (which has been transferred to the Appellate Division, First Department) alleging that the procedures utilized by the Police Department violated his due process rights under the New York State Constitution, that the Commissioner's findings were not supported by substantial evidence and that the penalty imposed was excessive.

 Both parties move pursuant to Fed. R. Civ. Pr. 56 for summary judgment. None of the material facts are in dispute.

 * * * * * *

 Leggio contends that the Department stands to gain from fines imposed on officers, from the elimination of the pension benefits of a dismissed officer, and from the savings created by replacing experienced, higher salary officers with new recruits.

 According to the Department's Director of Audit and Accounts, the Department's expense budget for fiscal year 1982 was approximately $795 million. Fines imposed on officers during that period totalled $11,202.09. (Affidavit of Alan J. Graham, para. 4). Moreover, Deputy Commissioner Kriss and Commissioner McGuire have no personal pecuniary interest in the solvency of the Police Pension Fund because, not having served as police officers themselves, their pensions are not payable out of the Police Pension Fund. Finally, although the record does not reflect the savings accrued to the Department through the dismissal of police officers, even according to Leggio's contentions, only 165 officers were dismissed from the Department between 1978 and 1981 (Plaintiff's Memorandum at 20) and the Court can take judicial notice of the fact that the elimination of pension benefits of 165 officers in a four-year period would have very little effect on an annual budget of over half a billion dollars.

 In Marshall v. Jerrico, 446 U.S. 238, 64 L. Ed. 2d 182, 100 S. Ct. 1610 (1980), a case in which the fines collected by the agency in question amounted to less than one percent of the agency's annual budget, the Supreme Court stated that the biasing influence alleged was "too remote and insubstantial to violate constitutional constraints." 446 U.S. at 243-44. The possibility of financial considerations creating a bias under the circumstances in dispute here is at least equally remote. See also Dugan v. Ohio, 277 U.S. 61, 65, 72 L. Ed. 784, 48 S. Ct. 439 (1928) (The mayor's "relation . . . to the fund contributed to by his fines as judge, or to the executive policy of the city, is remote.") We conclude that the pecuniary interests of the Department are so remote that no genuine issue is raised that their existence affected the proceedings against Leggio or deprived him of due process.

 In support of his argument that the Commissioners are subject to political pressures which deprive the proceedings of due process, Leggio points to the percentages of disciplinary actions that result in pleas or findings of guilt, and to the record in his own case, which, he contends, clearly vindicates him and demonstrates bias. He also argues that the safeguards created by the Administrative Procedure Act, 5 U.S.C. ยง 551 et seq., with regard to administrative law judges, are in some way applicable to Police Commissioners.

 As an initial matter, we know of no authority for the proposition that the standards established by the Administrative Procedure Act are required by the due process clause. At the most, the Act merely provides one means of insulating adjudicators from political pressures.

 The factors relevant to a determination of whether state processes meet constitutional standards are set forth in Mathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976):

"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and ...

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