
    Peter J. De Paulo et al., Respondents, v City of Albany et al., Appellants.
    Argued March 18, 1980;
    decided April 29, 1980
    
      APPEARANCES OF COUNSEL
    
      John E. Roe, Corporation Counsel (Francis Bergan of counsel), for appellants.
    
      Brian J. O’Donnell for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs.

The arbitrator having found petitioner guilty of releasing an impounded car without authority and filing a false report, among other charges, also found in light of petitioner’s prior good record as a police officer that dismissal was not warranted, and imposed a penalty of suspension without pay, the net effect of which was loss of salary and holiday pay of $14,486. Binghamton Civ. Serv. Forum v City of Binghamton (44 NY2d 23) requires confirmation of that award unless it can be said that in failing to order petitioner’s discharge the arbitrator exceeded his powers.

Special Term held and the Appellate Division agreed that the arbitrator did not exceed his powers. The city on this appeal argues that petitioner having been indicted on a charge of official misconduct (Penal Law, § 195.00) and pleaded guilty to disorderly conduct (Penal Law, § 240.20) has forfeited his office by reason of section 30 of the Public Officers Law that it is contrary to public policy as declared in that section for him to continue in office, and that, therefore, the arbitrator must be held to have exceeded his powers. While we recognize the force of the argument that the filing of a false report involves a violation of a policeman’s sworn duty we conclude that as section 30 is presently worded it does not fix public policy at the standard for which the city argues.

Section 30 (subd 1, par e) provides that a public office shall become vacant upon a public officer’s "conviction of a felony, or a crime involving a violation of his oath of office”. What constitutes a felony or a crime within the meaning of that provision is determined by the definitions of the Penal Law (cf. Matter of Gunning v Codd, 49 NY2d 495; see McKinney’s Cons Laws of NY, Book 1, Statutes, § 230). Disorderly conduct is stated by section 240.20 of the Penal Law to be a "violation”. Section 10.00 of the Penal Law distinguishes between a "violation”, a "misdemeanor” and a "felony” and defines a "crime” as "a misdemeanor or a felony” (subd 6). It follows that disorderly conduct is not a crime within the meaning of section 30.

There is a further reason why section 30 does not mandate termination of petitioner’s office. Petitioner was accused of acts violative of his oath of office but convicted only of disorderly conduct. Without listing the seven categories of acts which fall within the definition of disorderly conduct, it is sufficient to note that none are even remotely connected with petitioner’s oath of office. While plea bargaining permits pleading to hypothetical crimes (cf. People v Serrano, 15 NY2d 304), what triggers the forfeiture provision of section 30 is only a "conviction”. Though a guilty plea is a "conviction” under that section, petitioner’s plea was to a violation rather than to a crime.

For the foregoing reasons, confirmation of the award was proper.

Wachtler, J.

(concurring). I agree with the majority that the principle of Binghamton Civ. Serv. Forum v City of Binghamton (44 NY2d 23, 30) is controlling in this case. It is appropriate, however, to reiterate the concern expressed in the dissent to Binghamton that the "Responsibility for setting the moral tone in civil service should not be wrested from local government by labor arbitrators.” The facts of the case now before us graphically underscore that concern.

We deal here with a police officer who was charged with filing a false official report and other misdeeds. Had he been convicted of the charges for which he was indicted he would have been removed from office automatically by force of section 30 (subd 1, par e) of the Public Officers Law. Instead, because he was permitted to negotiate a plea to the offense of disorderly conduct, he escapes that sanction.

In view of the singular responsibility and trust necessarily reposed in our police it would seem essential that the determination as to whether an officer should remain on the force, at least in cases where the conduct in question concerns a violation of the officer’s oath, should be made only by those persons entrusted by the public with that responsibility. Only those persons may be assumed to have in mind the public interest of the community, and only they are directly answerable to that community. That they should be permitted to bargain away that responsibility and allow a labor arbitrator to make such a decision is a grievous disservice to the public.

The Legislature has already recognized the need to remove public officers in case of serious misconduct. Obviously in such a case it should be the conduct, not the label placed upon it, which determines the sanction. Hopefully legislative action will remedy this situation and prevent its recurrence.

Judges Jones, Fuchsberg and Meyer concur in memorandum; Judge Wachtler concurs in a concurring opinion in which Judges Jasen and Gabrielli also concur; Chief Judge Cooke taking no part.

Order affirmed.  