June 25, 2018

Rejection of a hearing officer's finding of fact and determination by the appointing authority


Rejection of a hearing officer's finding of fact and determination by the appointing authority
Kelly v New York State Justice Ctr. for The Protection of People With Special Needs, 2018 NY Slip Op 03407, Appellate Division, Third Department

The Petitioner in this action was employed by the Office for People with Developmental Disabilities at the Brooklyn Developmental Disabilities Service Office as a treatment aid.

The New York State Justice Center for The Protection of People With Special Needs [Justice Center] received a report alleging that Petitioner "committed acts of neglect when [she] breached [her] duty towards multiple service recipients by failing to use appropriate and professional language in their presence."

Ultimately Justice Center informed Petitioner that after reviewing the evidence presented, it determined that a preponderance of the evidence supported a finding of abuse or neglect pursuant to Social Services Law §494 and the matter involving Petitioner's alleged "acts of neglect" was referred to Respondent's Administrative Hearings Bureau.

Following the hearing, an Administrative Law Judge [ALJ] concluded that the evidence did not establish that Petitioner had committed an act of neglect. Justice Center, however, rejected the ALJ's recommendation, finding that, "by a preponderance of the evidence," Petitioner had committed neglect. Petitioner then commenced an CPLR Article 78 proceeding challenging Justice Center's determination, which was transferred to the Appellate Division.

Petitioner argued that the Justice Center was required to adopt the ALJ's recommended decision.* The Appellate Division held that Petitioner's argument was "without merit."  It also disagreed with Petitioner's contention that Justice Center's regulation 14 NYCRR 700.13 conflicts with Social Services Law §494(1)(b), noting that the statute does not require that the ALJ's decision be final and binding upon Justice Center. Instead, the statute merely states that, in the event that a petition is not sustained by the ALJ, such finding must be reflected upon an amended record.

Addressing the authority of Justice Center's "Chief of Staff" to render a final determination, the Appellate Division ruled that "the death of Justice Center's Executive Director did not diminish the Chief of Staff's authority to act as a designee of the Executive Director and, as such designee, render a final determination."

Public Officers Law §9, in pertinent part, provides ... Deputies, their appointment, number and duties. Every deputy ... in case of [the officer's] absence from the office or  his [or her] inability to act, or in case of a vacancy in the office, and if he [or she] shall fail to make such designation, the deputy ... shall so act. If a vacancy in a public office shall be caused by the death of the incumbent, the deputies shall, unless otherwise provided by law, continue to hold office until the vacancy shall have been filled in  accordance with law.

* With respect to court upholds appointing authority's rejection of hearing officer findings, In the Matter of Linda Ziehm, 90 A.D.2d 677, Affd, 59 N.Y.2d 757, the Appellate Division held that where the record contained substantial evidence affording a rational basis for the appointing authority determination, the appointing authority's determination will be sustained. See, also, Delgrande v Greenville Fire Dist., 126 AD3d 968 and Perfetto v Erie Co. Water Auth., 298 A.D.2d 932.  [The appointing authority may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence.] Further, in Weill v New York City Dept. of Educ., 61 AD3d 407, the decision notes that the administrative body, rather than its attorney, must indicate the basis for its administrative action or decision.

The decision is posted on the Internet at:


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