O'Keefe v. Murphy

• Decision Date: 17 February 1976
• Citation: 381 N.Y.S.2d 821,38 N.Y.2d 563,345 N.E.2d 292
• Parties: , 345 N.E.2d 292 In the Matter of John J. O'KEEFE, Appellant, v. Patrick V. MURPHY, as Police Commissioner of the City of New York, Respondent. In the Matter of Ulysses F. LAWRENCE, Appellant, v. Howard R. LEARY, as Police Commissioner of the City of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 821

381 N.Y.S.2d 821

38 N.Y.2d 563, 345 N.E.2d 292

In the Matter of John J. O'KEEFE, Appellant, v. Patrick V. MURPHY, as Police Commissioner of the City of New

York, Respondent.

In the Matter of Ulysses F. LAWRENCE, Appellant, v. Howard R. LEARY, as Police Commissioner of the City of New

York, Respondent.

Court of Appeals of New York.

Feb. 17, 1976.

Victor J. Herwitz and Michael Kopcsak, New York City, for appellants.

W. Bernard Richland, Corp. Counsel, New York City (L. Kevin Sheridan, Bernard Abel and Diane R. Eisner, New York City, of counsel), for respondents.

PER CURIAM.

Appellant O'Keefe was a New York City police officer who was taken into custody by the department in connection with an alleged conspiracy to receive $50,000 from a New Jersey doctor believed to have been performing illegal abortions. He was suspended and charged by the department with participation in the conspiracy. Prior to a hearing on the charges, appellant was called before a Grand Jury where he refused to waive immunity. As a result of this refusal, he was dismissed from the force in July, 1965.

Appellant Lawrence was a New York City police officer who was arrested on February 25, 1966 and charged with the crimes of bribery, attempted extortion and accepting unlawful fees. The arrest resulted from an investigation into charges that appellant had knowingly demanded and received money from persons he had previously arrested on gambling charges in return for a promised dismissal of the charges. He was immediately suspended from the force. In March, 1966 the Grand Jury refused to indict and departmental charges were then preferred against him shortly thereafter. Prior to a hearing on these charges, appellant was summoned before a Grand Jury where he refused to sign a limited waiver of immunity. As a result a department hearing was held based solely on his refusal to waive immunity and he was dismissed from his position on November 23, 1966.

Thereafter, in June, 1968, the United States Supreme Court ruled that a public servant's employment could not be terminated for refusing to waive immunity (Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082.) By stipulation dated May 12, 1969 the appellant O'Keefe was reinstated without prejudice to the previously filed charges. In October, 1970 O'Keefe was tried on the departmental charges and found guilty with a recommendation of dismissal. Thereafter, he was dismissed and commenced this action to annul the determination. The trial court confirmed the officer's discharge and dismissed the petition. The Appellate Division unanimously affirmed.

Appellant Lawrence was reinstated without prejudice to any pending disciplinary charges by stipulation dated July 30, 1969. He was tried in January, 1970 and as a result of a decision rendered six months later he was found guilty of two of the specifications and sentenced to forfeit 10 days fr annual vacation. The Appellate Division unanimously confirmed the Commissioner's determination.

Both appellants contend that the extended delay deprived them of procedural and substantive due process. The assertion of procedural due process must be rejected in light of our holding in Matter of Jerry v. Board of Educ. of City School Dist. of City of Syracuse, 35 N.Y.2d 534, 541, 364 N.Y.S.2d 440, 443, 324 N.E.2d 106, 109 where we held that suspension of a tenured teacher without pay pending the final determination of disciplinary proceedings does not violate due process.

Analogizing to speedy trial principles, the appellants urge that the delays here were constitutionally impermissible. However, it must be remembered that we are dealing here with a civil rather than a criminal proceeding so that it is clear that the speedy trial considerations recently articulated (People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79, 335 N.E.2d 303; People v. Johnson, 38 N.Y.2d 271, 379 N.Y.S.2d 735, 342 N.E.2d 525) are inapposite. Nevertheless, the due process aspect of delay in the administrative context presents an important issue. The controlling standard is one of 'fairness and justice' (Matter of Evans v. Monaghan, 306 N.Y. 312, 118 N.E.2d 452; Matter of Brown v. Ristich, 36 N.Y.2d 183, 366 N.Y.S.2d 116, 325 N.E.2d 533; Matter of Sowa v. Looney, 23 N.Y.2d 329, 296 N.Y.S.2d 760, 244 N.E.2d 243). Thus, whenever a delay in an administrative adjudication significantly or deliberately interferes with a party's capacity to prepare or to present...