May 12, 2016

An appointing authority’s neglecting to make a timely designation of an individual to serve in lieu of the appointing authority in a §75 disciplinary action is a fatal omission

An appointing authority’s failing to make a timely designation of an individual to serve in lieu of the appointing authority in a §75 disciplinary action is a fatal omission
Bruso v County of Clinton, 2016 NY Slip Op 03576, Appellate Division, Third Department [Bruso I]
Bruso v Clinton County, 2016 NY Slip Op 03577, Appellate Division, Third Department [Bruso II]

Bruso I

Zetra Bruso was employed by the County of Clinton as the head nurse of the Clinton County Nursing Home. In November 2012, Wendie Bishop, the administrator of the nursing home and its appointing authority, placed Bruso on administrative leave pending an investigation into “possible performance issues.” In December 2012, Bishop filed 12 disciplinary charges against Bruso pursuant to §75 of the Civil Service Law alleging 28 specific acts of misconduct and incompetence.

The Hearing Officer found that substantial evidence supported a majority of the charges and specifications and recommended that Bruso's be terminated from her position. The Clinton County Administrator, Michael E. Zurlo, who had been designated by Bishop to serve in her place upon her disqualifying herself from making the final determination in this disciplinary action, adopted the Hearing Officer's findings and recommendation and terminated Bruso.

Bruso filed an Article 78 petition seeking a court order annulling Zurlo's determination, contending that [1] the Hearing Officer erred in refusing to admit certain evidence at the hearing and [2] Zurlo was not properly designated to serve in the place of the appointing authority.

Addressing Bruso’s claim that erred in refusing to admit into evidence the Civil Service Commission's Manual of Procedure in Disciplinary Actions, the Appellate Division ruled that the Hearing Officer, properly excluded the Commission’s Manual. The court explained that generally “all relevant material and reliable evidence which will contribute to an informed result should be admissible in disciplinary proceedings," here the Hearing Officer had properly excluded the Manual as it “merely acts as a guideline [and] was not relevant to the determination of whether [Bruso] was guilty of the alleged misconduct.”

With respect to the “appointing authority” issue, the Appellate Division noted that Bishop was the  appointing authority and vested with the power to remove Bruso from her employment. As Bishop had filed the charges against Bruso, had appointed the Hearing Officer and had testified at length at the hearing, she was “personally [and] extensively involved in the disciplinary process.” Accordingly, said the court, Bishop had “properly disqualified herself from reviewing the record and the recommendation of the Hearing Officer and rendering a determination on the charges.”

Bishop had designated Zurlo, a person with supervisory authority over Bruso, to act in her place. However, although Zurlo stated in his July 15, 2013 determination terminating Bruso's employment that Bishop had delegated her authority to him, Bishop and Zurlo affirmatively stated in their respective affidavits that the designation had occurred on July 22, 2013, seven days after Zurlo made the determination.

Accordingly, said the Appellate Division, the record did not support the conclusion that Bishop had vested Zurlo with the power to remove Bruso from her employment at the time of he had made his determination.

The court remitted the matter “for a de novo review of the record and the Hearing Officer's recommendation by ‘the officer or body having the power to remove’ [Bruso] from her employment or, if such officer or body is disqualified, a qualified individual to be designated by such officer or body.” However, said the Appellate Division, as Zurlo has already reviewed the record and the findings and recommendation of the Hearing Officer in Bruso I, “we conclude that it would not be appropriate for him to conduct the required de novo review upon remittal” of Bruso I.

In addition, the Appellate Division said although Bruso was entitled to back pay and benefits, “in a decision decided herewith, [Bruso v Clinton County, Bruso II] we have confirmed a July 22, 2013 determination finding [Bruso] guilty of an additional charge brought pursuant to Civil Service Law §75 … and terminating her employment based on that finding …. Under these circumstances, petitioner is entitled to back pay and benefits only for the period from July 15, 2013 through July 21, 2013.”

Bruso II

The genesis of the disciplinary action initiated against Bruso is set out in Bruso I above. At a hearing on those charges, Bruso attempted to admit into evidence a "Medication and Treatment Misadventures Form" [the Form], an internal quality assurance document used by the nursing home to identify and address errors in medicating its residents, as well as a resident's narcotics prescription that was attached to the form. This resulted in the appointing authority, the administrator of the nursing home, filing two additional charges against Bruso in April 2013 alleging three specifications of alleged misconduct and incompetence. In the words of the Appellate Division, “[a]s relevant here, [Bruso] was alleged to have knowingly possessed [a] form and the attached prescription without authorization from the nursing home."

Following a hearing on the April 2013 these charges, a Hearing Officer found that all three specifications were supported by substantial evidence and recommended the  termination of Bruso's employment. Zurlo, who had been designated by the appointing authority to serve in her stead, accepted the Hearing Officer's findings and recommendation and concluded that termination of Bruso’s employment was the appropriate penalty.

Bruso then initiated a second CPLR Article 78 action seeking, among other things, to annul Zurlo's determination concerning the April 2013 charges. Supreme Court dismissed two of the specifications as untimely under Civil Service Law §75(4) and transferred the proceeding to the Appellate Division.

Bruso contended that the determination should be annulled because the Hearing Officer was biased. The Appellate Division rejected her argument. The court said that “… hearing officers are presumed to be free from bias, an appearance of impropriety is insufficient to set aside an administrative determination; [the] petitioner must provide factual support for his [or her] claim of bias and prove that the outcome flowed from that bias." Conceding that the Hearing Officer presided over the hearing on the December 2012 charges, the court said that Bruso failed to overcome the presumption and establish that the Hearing Officer prejudged the matter. (see Matter of Compasso v Sheriff of Sullivan County, 29 AD3d at 1065).

As to Zurlo’s participation in Bruso II,* the court said that it was satisfied that Zurlo's determination was independent and fully informed. The Appellate Division explained that “[i]n evaluating whether an administrative determination is informed, courts accord the determination a presumption of regularity and will not disturb it absent ‘a clear revelation that the administrative body made no independent appraisal and reached no independent conclusion.’”

In addition, the court noted the record shows that the hearing transcript and exhibits were made available to Zurlo and that he reviewed the posthearing briefs submitted by the parties, as well as the findings, conclusions and recommendation of the Hearing Officer. Addressing Bruso’s assertion that Zurlo did not read the enter record, the Appellate Division, citing Perryman v Village of Saranac Lake, 64 AD3d 830, said the he was not required to read the entirety of the hearing transcript.

Finding that Zurlo's determination that Bruso was guilty of the remaining specification was supported by substantial evidence, the court said that it “will not second guess the credibility determinations of the administrative factfinder.”

Citing the Pell doctrine, Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222, the court said that it did not find that termination of Bruso’s employment is so disproportionate to the offense as to be shocking to one's sense of fairness.

* Although in Bruso I the Appellate Division concluded that at the time of his determination of the December 2012 charges Zurlo was not authorized to review the record and the Hearing Officer's recommendation and render a determination on those charges, the court said that “the same concern is not present here, [i.e., in Bruso II] as Zurlo was vested with the power to review the present record and render a determination on the April 2013 charges at the time that he did so.”

The Bruso I decision is posted on the Internet at:

The Bruso II decision is posted on the Internet at:

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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.
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