Hearing officer, not the attorney of a party, may draft findings of fact and determinations in the proceeding

Hearing officer, not the attorney of a party, makes the findings of fact and determination in the proceeding
LePore v McCall, 262 AD2d 919

This decision illustrates the fact that a hearing officer is responsible for making findings of fact and conclusions of law necessary to support his or her determination and recommendation. These tasks may not be delegated to another, much less to one of the parties involved in the action.

Anthony LePore, a Village of Nyack police officer, was involved in an automobile accident on May 11, 1989 while at work. Although he returned to duty in June 1989, his subsequent attendance at work was “sporadic,” due to his claim of pain and limited mobility. LePore ultimately stopped working on December 15, 1989.

In August 1994, LePore filed applications with New York State Policemens’ and Firemens’ Retirement System [PFRS] seeking accidental disability retirement benefits, or, in the alternative, performance of duty disability retirement benefits. PFRS “administratively” disapproved both of his applications in April 1995 and LePore filed a timely request for an administrative hearing and redetermination.

Hearings were held in May and August 1996 before a PFRS-appointed hearing officer. LePore’s medical experts testified that the injuries that he suffered from the automobile accident are permanent. PFRS’ medical expert testified that there were “no findings to state with any degree of medical certainty that [LePore’s] accident was the competent producing cause of his current condition.”

After hearing all of the testimony presented, the hearing officer issued his decision recommending that LePore’s applications be denied. He sent the decision to PFRS with a request that PFRS’s attorney draft “the findings of fact, conclusions of law and final determination.” The hearing officer did not send a copy of his decision or his request to LePore’s attorney.

PFRS’s attorney complied by preparing the findings of fact and conclusions of law as requested and returned the “decision” with the “findings and conclusions of law” to the hearing officer. The hearing officer signed and returned the decision to PFRS’s attorney on July 25, 1997 for review by the Comptroller. On August 29, 1997, copies of the hearing officer’s determination and the Comptroller’s decision rejecting LePore’s applications were sent to LePore’s attorney.

Complaining that the hearing officer’s action (a) denied him “due process” and (2) constituted a “clear and flagrant violation of State Administrative Procedure Act (SAPA) Section 307 (2), which prohibits ex parte communications [communication between the tribunal and only one of the parties to the proceeding], LePore appealed.

PFRS attempted to persuade the Appellate Division to affirm the Comptroller’s decision because “the hearing officer did not differ significantly from the final determination ultimately rendered by [the Comptroller].”

The Appellate Division rejected PRFS’s contentions, finding that “the procedure employed not only violated SAPA Section 307 (2) but also created such an appearance of impropriety and bias to warrant an annulment of the determination” . The court returned the decision to the Comptroller for a de novo determination [new decision] based on the record presented.

The lesson here is that although the entity that appointed the hearing officer may, based on the record, accept, reject or modify the hearing officer’s findings and recommendation, the findings and recommendation must be the actual “work product” of the hearing officer.
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