Opn. No. ( 1981 )

Robert J. Ponzini, Esq. Village Attorney, North Tarrytown

You ask whether a reprimand placed in a village police officer's personnel file as a term of a settlement, prior to a hearing, of charges by the village against the officer may be removed by the village board of trustees. If it may be removed, you ask what the procedure is for removal.

According to your letter, about two years ago a police officer employed by the village was served with charges alleging violations of police department rules and regulations. Prior to a hearing under section75 of the Civil Service Law, an agreement was reached between the officer and the village requiring the forfeiture of leave time by the officer and placement of a reprimand in his personnel file as satisfaction of the charges preferred.

We see no reason why a reprimand may not be removed from an employee's personnel file. A village board of trustees desiring to clear the record of an employee who in the past misbehaved, but who has since performed well, should have this option. Public policy is not served by forever blighting the employee's personnel file.

The decision to remove the reprimand is a legislative act which may be effectuated by resolution of the board of trustees. Legislative action is required because the original settlement of charges against the employee was approved by the board of trustees. A legislative body has the right to rescind prior acts and votes, including those of former legislative bodies, subject to the contract rights of other parties (McQuillin, Municipal Corporations, 3rd Edition, Volume 4, § 13.49).

We note that the village should not return leave time to the employee. The settlement of the charges constitutes a contract between the employee and the village. Return of the leave time that was part of the consideration received by the village could be a gift of public funds prohibited by the State Constitution (NY Const, Art VIII, § 1).

We conclude that there is no prohibition against a village board of trustees removing a reprimand from an employee's personnel file that had been placed there in settlement of charges against the employee.