Designating a hearing officer to consider Civil Service Law Section 75 disciplinary charges

Designating a hearing officer to consider Civil Service Law Section 75 disciplinary charges
Matter of Perryman v Village of Saranac Lake, 2009 NY Slip Op 05660, Decided on July 2, 2009, Appellate Division, Third Department

Donald G. Perryman, the Village of Saranac Lake Chief of Police, was suspended and charged with misconduct and incompetence* pursuant to Civil Service Law §75. The Village’s Board of Trustees, at a special meeting and while in executive session, agreed to appoint Robert Hite, Esq. as the Hearing Officer to preside over three matters, including the disciplinary action being taken against Perryman. Returning to “open session,” a motion was made to adopt a resolution “appointing the Hearing Officer referenced in executive session” without specifically naming either Hite or the subjects of the hearings.**

The minutes of that meeting indicate that the motion was made by one Board member and seconded by another and that a third Board member affirmatively voted "yes." The Village Attorney sent a letter to Hite advising him of his appointment by the Board.

Hite held a hearing on the charges and issued a report finding petitioner guilty of misconduct and recommending his termination. Ultimately the Board adopted a resolution adopting Hite's report and terminated Perryman’s employment. Perryman appealed, contending, among other allegations, that Hite did not have the authority to conduct the disciplinary hearing pursuant to Civil Service Law §75(2) and that his findings were not based on substantial evidence.

The Appellate Division said that Perryman’s Article 78 petition challenging the validity of Hite’s appointment essentially involved two questions: (1) was the Board action at its special meeting designating Hite as the hearing officer to hold the hearing valid, and (2) if such action was valid, did the Board properly delegated its authority in writing as required by Civil Service Law §75(2).

The court said that the answer to both questions was yes.

§75(2) provides that disciplinary charges may only be heard by "the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose." In this instance the court said that the "officer or body" that has the power to remove Perryman is the Board. As the Board consists of five members, three "yes" votes were required in order to pass a resolution to delegate to Hite the authority to conduct a hearing on the charges against Perryman.

Rejecting Perryman’s contention that the appointment of Hite “was invalid for failing to garner a three-vote majority,” the Appellate Division decided that although “the minutes reflect that only one member formally said the word "yes" while the two other voting members moved to approve the resolution and seconded it, the unrefuted affidavit submitted by the Village Clerk and the moving and seconding board members established that it was the general practice in the Village that the actions of making or seconding motions by Board members were considered "yes" votes unless stated otherwise.” Accordingly, said the court, “Given this undisputed proof, we see no reason to disregard such affidavits and reach a conclusion on this point different from what was clearly intended by the Board members.”

The decision also notes that the public actions of entities such as the Village Board should not be invalidated "unless there is some resulting uncertainty about what was enacted to someone's detriment." As there is no evidence of any uncertainty or confusion about the designation of Hite to conduct petitioner's disciplinary hearing, “Any other result would needlessly exalt ‘form over substance’.”

As to the merits of the Board's determination, the Appellate Division ruled that the credible evidence adduced at the hearing demonstrated that Perryman “was aware that the Village police officers in question had been drinking before the accident and that he attempted to conceal such information from the investigating authorities, thereby engaging in a pattern of misconduct,” and, in addition, that Perryman “engaged in misconduct by failing to conduct an internal investigation of the incident to address the conduct of the police officers in question, who not only operated a Village vehicle while intoxicated, but failed to disclose this information in the reports they wrote regarding the accident.” Significantly, the Appellate Division said that “the fact that [Perryman] ‘presented an alternative explanation for the course of events’ is not a basis for disturbing the Board's determination.”

The court also rejected Perryman’s argument that the Board's determination should be invalidated because the Board must have “failed to review the record given its size and the fact that Hite's report and recommendation was received one day before the Board voted on it.”***

The court said that the determinations made by the Board are entitled to a presumption of regularity and Perryman failed to show that the Board “made no independent appraisal and reached no independent conclusion.” Further, the decision notes that “[the Board] was not required to read all . . . pages of the hearing transcript and each document submitted … Thus, [Perryman's] unsubstantiated claims that the Board failed to review the record are insufficient to overcome the presumption of regularity."

* The charges against Perryman alleged that he had attempted to conceal information concerning two Village police officers involved in a car accident while on duty in an unmarked Village police car following their undisputed consumption of alcohol from the investigating authorities.

** See In Scharf v Levittown UFSD, 294 AD2d 50, wherein the Appellate Division held that the naming of a specific hearing officer in disciplinary charges served upon an employee, coupled with a written resolution adopted by the school district's Board of Education incorporating the Notice of Charges by reference, satisfied the requirement that Section 75 hearing officers be designated in writing.

** The appointing authority must have the transcript of the disciplinary hearing available to it before it can make its determination [Ernst v Saratoga County, 234 AD2d 766].

The decision is posted on the Internet at:http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05660.htm