April 17, 2017

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors

Right to administrative due process not compromised by a three-year delay in conducting a disciplinary hearing and, or, other alleged procedural errors
Armbruster v Cassano, 2017 NY Slip Op 02641, Appellate Division, Second Department

New York City Firefighter Daniel Armbruster had tested positive for cocaine during a random drug test administered by the New York City Fire Department, in contravention of the Department's "zero tolerance" drug policy. At his disciplinary hearing Armbruster admitted that he tested positive for cocaine but offered as his defense that "his ingestion of cocaine was unknowing" and he could not recall the circumstances of his cocaine use because "I was drinking excessively and I blacked out."

The Administrative Law Judge [ALJ] presiding at Armbruster's disciplinary hearing found him guilty of three charges of misconduct. As to the penalty to be imposed, the ALJ recommended that Armbruster be terminated from his employment as a New York City firefighter.

The Commissioner of the Fire Department adopted the ALJ's findings and the recommendation of the penalty to be imposed and dismissed Armbruster from his position. Armbruster then commenced a proceeding pursuant to CPLR Article 78 challenging the Commissioner's determination.

Among the issues considered by the Appellate Division in the course of Armbruster's appeal was the impact, if any, on Armbruster's right to due process in consideration of the following events alleged to have occurred in the course of Armbruster's disciplinary hearing:

1. The cumulative effect of the approximately three-year delay in conducting the administrative hearing;

2. The ALJ's rulings with respect to certain evidence presented in the course of the disciplinary hearing;

3. Armbruster's "brief exclusion from the hearing" during a pause in his testimony; and

4. The Fire Department counsel's isolated "disparaging commentary."

The Appellate Division concluded that "[t]he prejudice arising from these circumstances, where it arose at all, did not so permeate the underlying hearing as to render it unfair."

The court explained that a review of an administrative determination made after "a trial-type hearing directed by law" is limited to whether the administrative determination is supported by substantial evidence. In the event there is conflicting evidence or different inferences may be drawn from the evidence presented, the said court that "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]." Courts may not weigh the evidence or reject the choice made by such agency where the evidence is conflicting and room for choice exists.

The Appellate Division found that any credibility issues were resolved by the ALJ and that it found no basis upon which to disturb the ALJ's determination, which was supported by substantial evidence.

As to the penalty imposed by the Commissioner, dismissal, the court held that in view of Armbruster's "relatively brief tenure with the Fire Department at the time of his positive drug test," considered with the ALJ's finding that his testimony at the disciplinary hearing "lacked credibility" and the application of the Department's zero tolerance drug policy, the Appellate Division held that the imposition of the penalty of termination "was not so disproportionate to the offense committed as to be shocking to one's sense of fairness," notwithstanding evidence that Armbruster had previously sustained two employment-related injuries.

The decision is posted on the Internet at:


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