December 01, 2014

The "Rule of Necessity" provides a limited exception to the requirement of an unbiased adjudicator by permitting a biased adjudicator to decide a case if, and only if, the dispute cannot otherwise be heard

The "Rule of Necessity" provides a limited exception to the requirement of an unbiased adjudicator by permitting a biased adjudicator to decide a case if, and only if, the dispute cannot otherwise be heard
Zlotnick v City of Saratoga Springs, 2014 NY Slip Op 08289, Appellate Division, Third Department

This CPLR Article 78 petition was transferred to the Appellate Division by the Supreme Court to review a determination made by John P. Franck, Commissioner of Accounts for the City of Saratoga Springs, terminating City of Saratoga Springs Real Property Clerk Mary M. Zlotnick’s employment.

Zlotnick, believing that an individual representing certain condominium owners was receiving preferential treatment from the City's Assistant Assessor, Anthony Popolizio without going through a formal grievance process initially expressed her concerns to the City's Deputy Commissioner of Accounts, Sharon Kellner-Chille, who, in turn, contacted Franck. The Commissioner met with Zlotnick and explained the difficulties that City had experienced with condominium assessments in the past and advised her that the representative* in question was participating in an informal — and entirely permissible — grievance process.

Zlotnick, however, was not persuaded by the Commissioner’s explanation and ultimately brought her suspicions regarding this procedure to, among others, the Saratoga County District Attorney and the Attorney General.

In June 2012 Franck preferred disciplinary charges against Zlotnick alleging that she had violated City policy by making personal use of the Internet during working hours, and suspended her for a period of one week without pay. A disciplinary hearing was held in August 2012 and the Hearing Officer found Zlotnick guilty of the charges and recommended a one-week suspension without pay, such penalty to be satisfied by the earlier imposed suspension without pay. Franck adopted the findings and recommendation of the hearing officer.

In the course of the hearing Zlotnick testified as to her ongoing concerns regarding the manner in which condominium assessments were being reduced. Upon reviewing a transcript of her testimony, Franck  again investigated Zlotnick's allegations and, in so doing, "looked at every [assessment] reduction from December 27, 2010 through mid August 2012 to [ascertain] if they were done properly."

Franck advised Zlotnick that additional disciplinary action would be taken against her. Subsequently Zlotnick was served with a notice of discipline setting forth five specifications of misconduct and, or, insubordination. She was suspended for 30 days without pay and after a lengthy hearing, the Hearing Officer issued a report sustaining three of the five preferred charges and recommended that Zlotnick be terminated from her employment. The Commissioner adopted the Hearing Officer's recommendation and terminated Zlotnick from her position. Zlotnick than appealed the Commissioner‘s action, contending, among other things, Franck, having investigated Zlotnick's initial allegations of preferential assessment treatment, concluded that such allegations were unfounded, preferred the resulting charges of misconduct and insubordination against her and testified at her disciplinary hearing in support of such charges — should have disqualified himself from reviewing the Hearing Officer's recommendation and rendering a final determination in this matter.

The Appellate Division found merit in these claims, noting that “whether disciplinary charges are pursued in the judicial or administrative realm, ‘[t]he participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions‘."

Citing Baker v Poughkeepsie City School District, 18 NY3d 714, the court said that “[a]lthough a particular individual's involvement or participation in the disciplinary process does not automatically compel his or her recusal, the case law makes clear that "individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges." Thus, explained the court, when an officer institutes the disciplinary action and testifies at the hearing, he or she must disqualify himself or herself from reviewing the Hearing Officer's recommendations and rendering a final determination."

In an effort to nonetheless sustain the underlying determination, the Commissioner attempted to invoke the "Rule of Necessity." This rule provides a limited exception to the requirement of an unbiased adjudicator by permitting “a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard” and favors of delegating adjudicatory authority to others whenever possible.

Here, Franck contended, the only individual to whom he could have named to review the hearing officer’s determination was Deputy Commissioner Kellner-Chille and she had also provided extensive and detailed testimony in support of the charges against Zlotnick and thus the rule of necessity permitted the Commissioner to undertake that task here.

The Appellate Division disagreed. The court noted that in Gomez v Stout, 13 NY3d 182, the Court of Appeals interpreted Civil Service Law §7 (2) to "require that the power to discipline be delegated, if necessary, with the governmental department's chain of command….” here the parties debate whether, consistent with the provisions of the Saratoga City Charter, there is a body or officer to whom the Commissioner validly may delegate the power to review the report and recommendation issued by the Hearing Officer. Finding that the  Commissioner have failed to demonstrate — on this record — that no such body or officer exists, the Appellate Division said that it was unable to conclude that the rule of necessity may be properly invoked here.

The court remitted the matter to the City "for a de novo review of the present record and the Hearing Officer's recommendations by a qualified and impartial individual [or body]" to be designated by the Commissioner.“

In the course of this appeal Zlotnick raised an number of other issues that were considered by the court, including the following, that it may instructive to consider.

1. The underlying notice of discipline were so vague as to deprive Zlotnick of a fair hearing. The court, agreeing with the Hearing Officer, said that the notice of discipline and the subsequently furnished bill of particulars "could have been more illuminating" but the notice of discipline and the individual charges at issue "need only be reasonably specific, in light of all the relevant circumstances[,] to apprise [petitioner] of the charges and enable . . . her to adequately prepare a defense."

The Appellate Division concluded that “Viewing the notice of discipline, the corresponding bill of particulars and the materials supplied therewith against the backdrop of petitioner's prior disciplinary proceeding,” it was satisfied that Zlotnick was afforded adequate notice of the misconduct alleged with respect to the sustained specifications (set out in charges Nos. 1, 2 and 4) and thus this aspect of Zlotnick‘s due process claim must fail.

2. Zlotnick asserted that the Hearing Officer should have been disqualified for a myriad of reasons that generally fall under the heading of exhibiting bias or creating the appearance of impropriety.

The Appellate Division commented that "… hearing officers are presumed to be free from bias, an appearance of impropriety is insufficient to set aside an administrative determination.” The challenger must provide factual support for his or her claim of bias and prove that the outcome flowed from that bias. The court said that "[b]ased upon our review of the record as a whole, we do not find that [Zlotnick] made such a showing here.

3. Zlotnick argued that the Hearing Officer should have been disqualified due to an alleged affiliation between the Hearing Officer's spouse and respondents' counsel.

The court said that Zlotnick did not seek disqualification upon this ground at the administrative hearing and, hence, this issue is unpreserved for its review. The Appellate Division then noted that  the Commissioner averred that “he selected the Hearing Officer based upon a recommendation from a local attorney and that he did not discuss the Hearing Officer's designation with ‘any attorney or representative‘ of the law firm representing respondents in this matter prior to making such designation.”

4. Zlotnick argued that the Hearing Officer should have been disqualified based upon the fact that he presided over the first of her disciplinary hearings.

The Appellate Division rejected this argument, explaining that “absent record evidence that the Hearing Officer may have prejudged the matter under review, ‘an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges.’" To the extent that the record reflects that the Hearing Officer may have considered petitioner's overall employment record or the prior disciplinary proceeding in fashioning a penalty, the court said that it could discern no impropriety in this regard.

* The court, in a footnote, commented “the Commissioner conducted an initial investigation, spoke with [Assistant Assessor, Anthony] Popolizio and "satisfied" himself that "everything was being done above board." 

The decision is posted on the Internet at:


The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: