
    In the Matter of James J. Murphy, Respondent, v Patrick V. Murphy, as Police Commissioner of the City of New York, et al., Appellants.
    Argued January 12, 1976;
    decided February 19, 1976
    
      
      W Bernard Richland, Corporation Counsel (Murray L. Lewis and L. Kevin Sheridan of counsel), for appellants.
    The Police Commissioner’s sentence imposed upon petitioner was in fact a suspension of 90 days without pay and was a valid exercise of the Police Commissioner’s discretion. The punishment imposed did not exceed the authority of the Police Commissioner. (Brenner v City of New York, 9 NY2d 447.)
    
      Joseph W. Allen for respondent.
    I. The Police Commissioner did in fact impose upon petitioner a fine of 90 days. II. The Police Commissioner does not have the authority to impose a fine in excess of 30 days’ pay. (Matter of Budd v Valentine, 283 NY 508; Brenner v City of New York, 9 NY2d 447.)
   Jones, J.

We are asked to uphold a challenge to the legality of a penalty of loss of salary imposed by the Police Commissioner of the City of New York in a disciplinary proceeding.

Respondent was found guilty after a departmental hearing of a violation of the Rules and Procedures of the New York City Police Department. As punishment the Police Commissioner directed that he be fined "90 days pay and * * * be relieved of duty for that period of time”. On review in this article 78 proceeding the Appellate Division confirmed the finding of guilt but modified the punishment to a fine of 30 days with relief of duty, relying on section 434a-14.0 of the Administrative Code of the City of New York. That section, insofar as relevant, provides: "The commissioner shall have power * * * to punish the offending party by reprimand, forfeiting and withholding pay for a specified time, suspension, without pay during such suspension, or by dismissal from the force; but no more than thirty days’ salary shall be forfeited or deducted for any offense. ’’(Emphasis supplied.)

Appellant commissioner seeks to uphold the 90-day forfeiture of salary by contending that the discipline meted out was in fact a suspension for 90 days, as to which it is asserted Brenner v City of New York (9 NY2d 447) is authority that there is no 30-day limitation on the concurrent withholding of salary.

The difficulty with appellants’ position is that, although the language to accomplish such an objective was readily available, the commissioner did not impose a "suspension”, but instead required a forfeiture of salary (beyond that permitted by the code) and coupled with it relief from duty. We do not regard the two penalties as indistinguishable. While we have recognized that "[forfeiture or withholding of pay implies that the member is not suspended and that he continues to perform his services on the force” (Brenner v City of New York, supra, p 451), that is not to say that to add relief from duty elevates a forfeiture to a suspension. On the contrary, we can conceive of real distinctions between the two—with respect to personnel records, in the eyes of superiors and fellow officers and in the stigmas that may attach in the minds of others who learn of the disciplines. Suspension carries the implication of serious misconduct; relief from duty not necessarily so, for its predicates include misfortunes as well as misconduct, and even when joined with forfeiture of salary it does not connote offenses of the gravity associated with suspension.

Again, if appellant commissioner chose to impose the more severe discipline of suspension, the verbiage was at hand to do so. However, the language employed in the personnel order that followed the conclusion of the departmental hearing fell short of that action and may be read as reflecting an election not to impose that discipline. Bases for such a differentiation may well have been the facts, referred to in the report of the hearing officer, that respondent had an "excellent” prior record, that he had more than 25 years’ service in the department and that his retirement was imminent. Indeed, if the retirement was accomplished as expected at the time of the departmental hearing held on October 17, 1972, following which the effective retirement date was identified as November 18, 1972, the petitioner was already in retired status when the commissioner’s disciplinary order was promulgated on December 20, 1972.

Since the penalty imposed was a forfeiture of salary and not a suspension, it was limited by section 434a-14.0 of the Administrative Code to 30 days.

The judgment of the Appellate Division should be affirmed.

Jasen, J.

(dissenting). I would reverse the judgment of the Appellate Division and reinstate the determination of the Police Commissioner.

As noted by the majority, when a member of the police force is found guilty after a departmental hearing, subdivision a of section 434a-14.0 empowers the Police Commissioner to punish the offending member by "reprimand, forfeiting and withholding pay for a specified time, suspension, without pay during such suspension, or by dismissal from the force”. Where a forfeiture is imposed, the same subdivision limits the commissioner’s power as follows: "no more than thirty days’ salary shall be forfeited or deducted for any offense.” Here the commissioner, having found the petitioner to be guilty as charged, sentenced him "[t]o be fined (90) ninety days pay and to be relieved of duty for that period of time.” Rather than phrasing the punishment in the same precise words contained in the statute, he articulated the sentence in terms of a fine of 90 days’ pay coupled with relief of duty for the same period. In my view there is no question, particularly in the context of a police disciplinary proceeding, that this punishment was intended to be a suspension, without pay, for 90 days.

Through very strained reasoning, the majority concludes that relief from duty, even when joined with forfeiture of salary, does not always "carr[y] the implication of serious misconduct”. At a minimum, that rationale ignores the fact that petitioner was indeed found guilty of "serious misconduct”. Any "stigmas that may attach in the minds of others who learn of the disciplines” are a direct result of petitioner’s misconduct, and not of any unspecified, innocent "misfortunes”. More importantly, however, it overlooks the terminology consistently used by the commissioner in exercising his powers under subdivision a of section 434a-14.0. Illustrative of the commissioner’s terminology is Police Department Personnel Order No. 320, dated December 20, 1972. That personnel order listed the disposition of the 52 completed disciplinary proceedings which involved charges filed during the 25 months prior to the filing of charges against petitioner. Of the 52 members of the force involved, 30 were found guilty of at least one specification. Of these 30, five received reprimands. Another 15 were fined from 3 to 10 days’ vacation. Of the remaining 10, 8, including petitioner, received sentences which were identical, except for the number of days involved. Their sentences read: "_days pay, and to be relieved of duty for that period of time.” In dispensing these sentences, the commissioner certainly was aware of his disciplinary powers under section 434a-14.0. A comparison of the punishments available under that section with the sentences actually given by the commissioner lead inescapably to two conclusions. First, a fine of a certain number of days of vacation was the vehicle through which the commissioner punished by "forfeiting and withholding pay for a specified time”. Second, a fine of "_days pay” coupled with relief from duty was the manner in which the commissioner imposed a "suspension, without pay during such suspension”. Inartful as his terminology may have been, and however unfortunate his choice of words, there can be no question that the punishments like those imposed on petitioner were simply "suspensions”, and not "forfeittires”. Rather than strain to reduce petitioner’s punishment as does the majority, I conclude that the words used by the commissioner in disposing of disciplinary proceedings should be given their intended effect.

In addition, I agree with Justice Lupiano, the lone dissenter below, that an analysis of our language in Brenner v City of New York (9 NY2d 447) compels the same result. In Brenner, we indicated that the 30-day limitation of section 434a-14.0 applies only to forfeitures, not suspensions (9 NY2d, at p 451). We also stated that "[forfeiture or withholding of pay implies that the member is not suspended and that he continues to perform his services on the force.” Rather than take the position that these observations in Brenner are not accurate statements of the law, the majority instead reasons that because there could conceivably be a forfeiture of pay coupled with relief from duty in wholly innocent circumstances, a punishment in that form cannot be construed as a suspension. In other words, if the commissioner intends a "suspension”, he must use that precise word; no other word or combination of words will comply with the statute. I cannot join in such reasoning. It is totally inconsistent with the clear implication of what was said in Brenner. Moreover, in the context of a police disciplinary proceeding, it ignores the actual intent of the commissioner. No "forfeiture” was ordered here. Petitioner was not required to forfeit his pay for 90 days of actual service on the force, nor does he so allege. By misreading the language used by the commissioner, and by misconstruing section 434a-14.0, the majority has afforded petitioner the type of judicial review of a punishment which is clearly inappropriate where the commissioner has acted within the authority vested in him.

Chief Judge Breitel and Judges Gabrielli, Wachtler, Fuchsberg and Cooke concur with Judge Jones; Judge Jasen dissents and votes to reverse in a separate opinion.

Judgment affirmed, with costs. 
      
       Two of these 10, in addition to receiving suspensions, were placed on probation for one year.
     