Testimony by the appointing authority in a disciplinary action

Testimony by the appointing authority in a disciplinary action
DiMattina v LaBua, 262 AD2d 409

One of the issues considered by the Appellate Division in the DiMattina case appeal concerned the fact that the appointing authority both preferred the charges filed against Thomas J. DiMattina and testified against him at the disciplinary hearing that followed.

DiMattina, a Town of Huntington employee, was dismissed from his position after he was found guilty of having “wrongfully obtained and withheld Town-owned lumber, wrongfully obtained and withheld Town-owned tools and equipment, abused his authority, and improperly influenced subordinate Town employees with respect to political activities.”

The appointing authority, the director of the Department of General Services, had preferred the charges against DiMattina and testified at the subsequent disciplinary hearing. But the Appellate Division noted that “he properly disqualified himself from reviewing the recommendations of the Hearing Officer and acting on any of the charges.”

The determination was made by the Deputy Director, who was authorized to act generally in the Director’s absence pursuant to local law and who had been properly designated to render a final determination in DiMattina’s case.

The court said that “it is well settled that when an officer institutes charges of misconduct and testifies at an ensuing hearing, that officer, in the interest of fairness, must disqualify [himself or] herself from reviewing the Hearing Officer’s recommendations and rendering a final determination.” This was done in this case.
NYPPL