Does a SUNY trustee automatically lose her seat after pleading guilty to attempted grand larceny in the fourth degree, even though the crime is only a misdemeanor?

Plain-English summary

A SUNY trustee, who also served as president of the New York City Off-Track Betting Corporation, pleaded guilty to attempted grand larceny in the fourth degree. The underlying conduct was the theft of more than $13,000 from the account of a seriously ill OTB employee who had entrusted her financial affairs to the trustee. SUNY's general counsel asked whether the guilty plea automatically created a vacancy on the SUNY Board of Trustees under Public Officers Law § 30.

The AG concluded yes. The trustee was removed from office by operation of law the moment the plea was entered.

Public Officers Law § 30(1)(e) provides that every office becomes vacant upon "His conviction of a felony, or a crime involving a violation of his oath of office." Two threshold facts were not seriously disputed: SUNY trustees are public officers (they exercise sovereign powers over the State University System under Education Law § 355(1)(a) and take an oath of office), and a guilty plea counts as a "conviction" the moment it is entered (Criminal Procedure Law § 1.20(13); Matter of Gunning v Codd).

The harder question was whether attempted grand larceny in the fourth degree, a class A misdemeanor, was a "crime involving a violation of [the] oath of office." The Court of Appeals had answered that question in Matter of Duffy v Ward, 81 NY2d 127 (1993). Duffy set two rules for misdemeanors arising outside the line of duty:

First, courts look only to the elements of the crime, not the facts of the particular case. Mixing in fact-specific analysis would risk arbitrary government action and would distort the criminal-defense strategy of any public officer accused of a crime.

Second, the relevant misdemeanors are those that, by their Penal Law definition, "arise from knowing or intentional conduct indicative of a lack of moral integrity." The Court explained "moral integrity" by reference to Chief Judge Cardozo's gloss on "dishonesty": an "infirmity of purpose." The crime must involve "willful deceit or a calculated disregard for honest dealings" or "intentional dishonesty or corruption of purpose."

Attempted grand larceny in the fourth degree fit. The elements (intent to commit a crime plus conduct tending to effect the stealing of property valued at more than $1,000) involved knowing and intentional theft. Theft, by its nature, is willful deceit and calculated disregard for honest dealings. So the misdemeanor met the Duffy standard.

Section 30(1)(e) operates immediately upon conviction, without any further administrative action. The vacancy was not contingent on the trustee's sentencing or on the outcome of any potential appeal. The opinion noted that even reversal of the conviction on appeal would not require reinstatement of a removed officer.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Does every misdemeanor cause automatic removal from public office?

No. Only felonies or misdemeanors "involving a violation of [the] oath of office" trigger Public Officers Law § 30(1)(e). After Duffy v Ward, the misdemeanor category is limited to crimes whose elements involve "willful deceit or a calculated disregard for honest dealings" or "intentional dishonesty or corruption of purpose." Misdemeanors like criminal trespass do not qualify. Misdemeanors like perjury, attempted grand larceny, and similar offenses do.

Does the misdemeanor have to be related to the officer's official duties?

No. Duffy explicitly addressed misdemeanors arising "outside the line of duty." The vacancy rule applies if the elements of the crime show a lack of moral integrity, regardless of whether the conduct happened on or off the job.

When does the vacancy take effect?

Immediately upon "conviction," which means the moment the guilty verdict is entered or the guilty plea is accepted (Criminal Procedure Law § 1.20(13); Matter of Gunning v Codd). The officer cannot continue to serve while awaiting sentencing.

What if the conviction is reversed on appeal?

Reversal does not require reinstatement. Public Officers Law § 30(1)(e) and Gunning v Codd both make clear that the vacancy stands even if the underlying conviction is later overturned. The remedy on reversal is whatever the appellate court provides; restoration to office is not automatic.

Does the official have to be removed by the appointing body?

No. The whole point of § 30(1)(e) is that removal is by operation of law. The appointing body does not need to vote, the office is not required to convene a hearing, and the officer's resignation is not required. The seat is empty as soon as the plea is entered.

Could the trustee have argued that the underlying theft was a personal matter and not a violation of her oath of office?

That argument was foreclosed by Duffy. The Court of Appeals held that the analysis is element-based: the Court looks at the Penal Law definition of the crime, not at the specific facts of the case. Whether the theft was from an OTB account, a stranger's account, or a relative's account, the elements of attempted grand larceny in the fourth degree involve knowing or intentional theft, which qualifies as a violation of the oath of office.

Background and statutory framework

Public Officers Law § 30 lists the events that cause an office to become vacant. Subdivision (1)(e) covers conviction of a felony or a crime involving a violation of the oath of office. Other subdivisions cover death, resignation, refusal to take the oath, removal from the district, and similar events. The opinion focused on (1)(e).

The Court of Appeals' opinion in Matter of Duffy v Ward, 81 NY2d 127 (1993), is the controlling interpretation of the misdemeanor branch of (1)(e). Duffy itself involved a police officer convicted of criminal trespass, and the Court held that criminal trespass did not "involve a violation of [the] oath of office" because the elements of criminal trespass do not require dishonesty or corruption of purpose. The framework Duffy announced has been applied in many later cases, and the 1997 AG opinion is a routine application of that framework to a new set of crime elements.

Education Law § 355(1)(a) sets the responsibilities of the SUNY Board of Trustees, including central administration, supervision, and coordination of the State-operated institutions of the State University. The opinion cited it to establish that trustees exercise sovereign powers and are therefore public officers within the reach of Public Officers Law § 30.

Penal Law § 155.30(1) defines grand larceny in the fourth degree (theft of property worth more than $1,000) as a class E felony. Penal Law § 110.05(7) downgrades an attempt at a class E felony to a class A misdemeanor. Penal Law § 110.00 defines the attempt offense as engaging in conduct tending to effect the commission of a crime with intent to commit that crime. Penal Law § 10.00(6) defines a "crime" to include both felonies and misdemeanors.

Citations

• Criminal Procedure Law § 1.20(13) (definition of "conviction" includes a plea of guilty).
• Education Law § 355(1)(a) (SUNY Board of Trustees responsibilities).
• Penal Law § 10.00(6) (definition of "crime").
• Penal Law § 110.00 (definition of attempt).
• Penal Law § 110.05(7) (attempt of class E felony is class A misdemeanor).
• Penal Law § 155.30(1) (grand larceny in the fourth degree, property exceeding $1,000).
• Public Officers Law § 30 (events causing vacancy of public office).
• Public Officers Law § 30(1)(e) (conviction of felony or oath-violating crime).
• Matter of Dawson v Knox, 231 App Div 490 (3d Dept 1931), aff'd, 267 NY 565 (1935) (duties of public officers).
• Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973) (sovereign-power test for public office).
• Matter of McDonald v Orday, 219 NY 328 (1916) (statutory designation of "office" as evidence of intent).
• Macrum v Hawkins, 261 NY 193 (1933) (indicia of public office: oath, definite term, commission).
• 1983 Op Atty Gen 16 (indicia of public office).
• 1986 Op Atty Gen (Inf) 96 (officer-versus-employee distinction).
• Matter of Briggins v McGuire, 112 AD2d 829 (1st Dept 1985), aff'd, 67 NY2d 965, cert. denied, 479 US 930 (1986) (vacancy operates immediately on conviction).
• Matter of Gunning v Codd, 49 NY2d 495 (1980) (conviction means guilty verdict or guilty plea; not delayed to sentencing; reversal does not require reinstatement).
• Op Atty Gen (Inf) No. 93-13 (conviction upon entry of guilty plea).
• Matter of Duffy v Ward, 81 NY2d 127 (1993) (Court of Appeals' element-based "moral integrity" standard for oath-violating misdemeanors).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/97-F7_pw.pdf

Original opinion text

CRIMINAL PROCEDURE LAW § 1.20(13); EDUCATION LAW § 355(1)(a); PENAL LAW §§ 10.00(6), 110.00, 110.05(7), 155.30(1); PUBLIC OFFICERS LAW § 30(1). A public officer's conviction for off-duty behavior constituting the crime of attempted grand larceny in the fourth degree results in the removal of the officer by operation of law. October 31, 1997

Christine A. Alexander, Esq.
Managing Senior Associate Counsel
State University of New York
State University Plaza
Albany, NY 12246

Formal Opinion
No. 97-F7

Dear Ms. Alexander:
On behalf of the Chairman and Vice-Chairman of the State University Board of Trustees, you have requested a formal opinion as to whether the entry of a plea of guilty to attempted grand larceny in the fourth degree by a trustee of the State University of New York results in an automatic vacancy in the trustee's office under section 30 of the Public Officers Law or any other applicable law. In a news release you provided with your request, the Manhattan District Attorney announced that the trustee was charged with stealing more than $13,000 from the account of an employee of the New York City Off-Track Betting Corporation (OTB) who had become seriously ill and had entrusted her financial affairs to the trustee, who at the time also served as president of the OTB. The trustee pleaded guilty to attempted grand larceny in the fourth degree. Grand larceny in the fourth degree is a class E felony. Penal Law § 155.30. Attempted grand larceny in the fourth degree is a class A misdemeanor. Id., § 110.05(7). Under the Penal Law, a person is guilty of attempted grand larceny in the fourth degree, when with intent to commit a crime, he or she engages in conduct which tends to effect the stealing of property when "[t]he value of the property exceeds one thousand dollars". Id., §§ 110.00, 155.30(1). It is clear that the position of member of the Board of Trustees of the State University of New York (SUNY) is a public office. The duties of a public officer involve some exercise of sovereign power, while those of a public employee do not. Matter of Dawson v Knox, 231 App Div 490, 492 (3d Dept 1931), affd,

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267 NY 565 (1935); Matter of Haller v Carlson, 42 AD2d 829 (4th Dept 1973). The statutory designation of a position as an "office" is some indication that the legislative body intended to treat its occupant as a public officer. Cf. Matter of McDonald v Orday, 219 NY 328, 332 (1916); Haller v Carlson, 42 AD2d at 830. Other indicia of a public office are the requirement to take an oath of office; appointment for a definite term; and receipt of a commission of office or official seal. Macrum v Hawkins, 261 NY 193, 200-201 (1933); 1983 Op Atty Gen 16. One cannot qualify as a public officer without the authority to exercise a portion of the sovereign powers of government. 1983 Op Atty Gen 16; Haller v Carlson, 42 AD2d 829. As compared to an employee who does not discharge independent duties but acts at the direction of others, a public officer is vested with discretion as to how he or she performs his or her duties. 1986 Op Atty Gen (Inf) 96. There is no doubt that the trustees of the State University exercise sovereign powers of government in, for example, exercising responsibility for central administration, supervision and coordination of State-operated institutions comprising the State University System. Education Law § 355(1)(a). Such trustees therefore are public officers. Under section 30 of the Public Officers Law:

1. Every office shall be vacant upon the
   happening of one of the following events before the expiration of the term thereof: a.

The death of the incumbent;
.

.

.

e. His conviction of a felony,
or a crime involving a violation of
his oath of office . . ..
The Penal Law defines a crime as a felony or a misdemeanor. Penal Law § 10.00(6). Therefore, under section 30(1)(e) of the Public Officers Law, the conviction of a public officer of a felony or of a misdemeanor involving a violation of the officer's oath of office results in removal of the official from public office. It is settled that under this provision, the office becomes vacant by operation of law immediately upon conviction of the officer of a covered crime without further administrative action. Matter of Briggins v McGuire, 112 AD2d 829 (1st Dept

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1985), affd, 67 NY2d 965, cert denied, 479 US 930 (1986). The "conviction" occurs upon a verdict of guilty or the entry of a plea of guilty. Matter of Gunning v Codd, 49 NY2d 495 (1980); Criminal Procedure Law § 1.20(13). See also, Op Atty Gen (Inf) No. 93-13. The time of conviction is not delayed until sentencing. Gunning, 49 NY2d 495. An appeal of the conviction does not affect the vacancy created by operation of law and reversal of the conviction does not require reinstatement. Id.; Public Officers Law § 30(1)(e). Since the trustee's conviction (plea of guilty) is for a class A misdemeanor, under section 30(1)(e) she has been removed from her office by operation of law if the misdemeanor involved "a violation of . . . [her] oath of office". The trustee took and filed the following oath of office as a SUNY trustee: I do solemnly swear (or affirm) that I will support the constitution of the United States, the constitution of the State of New York, and that I will faithfully discharge the duties of the office of Member of the Board of Trustees of the State University of New York according to the best of my ability. In Matter of Duffy v Ward, 81 NY2d 127 (1993), the Court of Appeals concluded that the misdemeanor of criminal trespass did not involve a violation of an officer's oath of office. In so finding, the Court drew two conclusions which, when applied here, establish clearly that the trustee has been removed from office by operation of law. First, the Court concluded that in applying the statute to misdemeanor convictions arising outside the line of duty, courts should look not to the facts of the particular case but solely to the elements of the crime. Duffy, 81 NY2d at 130. The Court noted that despite a lack of agreement on the appropriate standard, courts have most often sustained summary removal of officers for misdemeanor convictions such as perjury, reckless endangerment and assault. Duffy, 81 NY2d at 132. Analyzing the legislative purpose of section 30(1)(e), the Court of Appeals found that the Legislature implicitly acknowledged that no factual determination was needed because facts unique to the incident could not mitigate the violation of the public trust arising from the criminal conviction. Duffy, 81 NY2d at 133. Therefore, all felony convictions, whether on or off duty, and regardless of the nature of the felony, result in automatic dismissal under the statute. Duffy, 81 NY2d at 133. Similarly,

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the Court of Appeals found that the second category covered by the statute, misdemeanors involving a violation of the oath, likewise should be interpreted so that no factual inquiry is needed to trigger automatic dismissal. Duffy, 81 NY2d at 133. Further, the consideration of facts in applying the statute would risk arbitrary governmental action and would place the officer in the position of choosing a criminal defense strategy taking into consideration the need to develop a factual record through a criminal trial to preserve his office. Duffy, 81 NY2d at 133. For these reasons, the Court of Appeals stated that: Accordingly, a misdemeanor conviction for conduct outside the line of duty will be "a crime involving a violation of [the] oath of office" under Public Officers Law
§ 30(1)(e) only if the violation is apparent from the Penal Law's definition of the crime. Duffy, 81 NY2d at 134. Second, the Court of Appeals determined the types of crimes falling within section 30(1)(e). The Court reasoned that the Legislature, in putting in limiting language (a crime "involving a violation of his oath of office"), had a particular type of criminal conduct in mind. Duffy, 81 NY2d at 134. It found that the statute's purpose is to assure citizens that their public officers are persons of moral integrity worthy of their trust. Duffy, 81 NY2d at 134. The Court of Appeals stated that:
[F]or misdemeanor convictions arising outside the line of duty, Public Officers Law
§ 30(1)(e) applies to crimes that, as defined in the Penal Law, arise from knowing or intentional conduct indicative of a lack of moral integrity. Duffy, 81 NY2d at 135. The Court then generally discussed the elements of misdemeanors falling within the statutory standard: We have not had occasion to define what specific offenses constitute crimes implicating "moral integrity", and it may be impossible to demarcate the precise boundaries of the term, but we note that "integrity" has been defined as "freedom from every biasing or corrupt influence or motive". . . . As Chief Judge Cardozo said of the term "dishonesty", the critical consideration is "an infirmity of purpose".

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. . . For a crime to be one demonstrating a lack of moral integrity, it must be one involving willful deceit or a calculated disregard for honest dealings. More than intent or a criminal mens rea is needed for summary dismissal; there must be an intentional dishonesty or corruption of purpose inherent in the act prohibited by the Penal Law. Duffy, 81 NY2d at 135. (Citations omitted, emphasis supplied). There is no doubt that the trustee has been convicted, as a result of her plea of guilty, of a misdemeanor involving a violation of her oath of office. She was convicted of engaging with criminal intent in conduct tending to effect the stealing of property valued at greater than $1,000. In the words of the Court of Appeals in Duffy, this crime demonstrated a "lack of moral integrity" by involving "willful deceit" and a "calculated disregard for honest dealings". Duffy, 81 NY2d at 134-135. The crime involved "an intentional dishonesty or corruption of purpose". Duffy, 81 NY2d at 134-135. We conclude that the trustee by operation of law vacated her office as a SUNY trustee upon her plea of guilty to the crime of attempted grand larceny in the fourth degree. Very truly yours,

DENNIS C. VACCO
Attorney General