Opn. No. ( 1994 )

Requestor: Francis T. Murray, Esq., County Attorney County of Ulster P.O. Box 1800 Kingston, N Y 12401

Written by: James D. Cole, Assistant Attorney General in Charge of Opinions

You have asked whether the county legislature has authority to suspend the commissioner of public works without pay. You have explained that the commissioner has been indicted on charges of official misconduct and violation of various provisions of law which forbid conspiracy to prevent competitive bidding. Further, you indicate that because the charges involve a violation of the commissioner's oath of office, upon a conviction the office would become vacant. Public Officers Law §30(1)(e). You have informed us that the commissioner has a two-year term of office which expires on December 31. The commissioner is in the unclassified civil service.

In our view, there is no authority, prior to a disciplinary proceeding, to suspend the commissioner without pay. Section 400(4)(a) of the County Law provides that no officer appointed for a fixed term may be removed by the county legislative body without written charges and an opportunity to be heard. State law provides no authority for the suspension without pay of such an officer prior to the determination of charges. 1972 Op Atty Gen (Inf) 278. Compare, Civil Service Law § 75(3) applicable to competitive and certain other employees. We note that the disciplinary hearing need not await the determination of criminal charges.

We conclude that the county commissioner of public works, elected for a fixed term, may not be suspended without pay pending the determination of charges.

The Attorney General renders formal opinions only to officers and departments of State government. This perforce is an informal and unofficial expression of the views of this office.