November 07, 2018

Judicial review of an administrative determination made after an adversarial hearing is limited


Judicial review of an administrative determination made after an adversarial hearing is limited
Buccieri v County of Westchester, 2018 NY Slip Op 07305, Appellate Division, Second Department

A Westchester County employee [Petitioner] was served with disciplinary charges and specifications pursuant to §75 of the Civil Service. The appointing authority, the Commissioner of the Westchester County Department of Parks, Recreation and Conservation [Commissioner], suspended Petitioner without pay for 30 days while the §75 disciplinary action was pending.*

The §75 hearing officer found Petitioner guilty of a number of the specifications set out in the charges and recommended a penalty: a 30-day suspension without pay. The Commissioner adopted the findings of the hearing officer and imposed the penalty recommended, suspension with out pay for 30 days.**

Petitioner filed a CPLR Article 78 petition seeking judicial review of the Commissioner's determination, contending that the Commissioner was not a qualified decision maker.

Supreme Court agreed, finding that the Commissioner had actively participated in the underlying events leading up to the disciplinary proceeding. Thus, said the court, the Commissioner should have recused herself from reviewing the hearing officer's findings and recommendation and rendering a final determination.

Accordingly, Supreme Court remanded the matter the Commissioner to appoint a duly qualified, impartial decision maker to review the hearing officer's findings and recommendation and to render a new determination.

The Commissioner appointed a Westchester County Department of Human Resources Deputy Commissioner to review the hearing officer's findings and recommendation and to render a new final determination, and if Petitioner was found guilty of any of the charges and specification filed against Petitioner, the to be imposed.

The Deputy Commissioner adopted the findings and the penalty recommended by the §75 hearing officer, suspension of Petitioner's for 30 days without pay. Petitioner then commenced this proceeding pursuant to CPLR Article 78 seeking a judicial review the Deputy Commissioner's determination.

The Appellate Division set out the following guidelines followed by courts in reviewing a challenge to an administrative determination such as one made after a §75 disciplinary hearing:

1. Judicial] review of an administrative determination in an employee disciplinary case made after a hearing pursuant to Civil Service Law §75 is limited to considering whether the determination was supported by substantial evidence.

2. It is the duty of the administrative tribunal, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject.

3. A court may set aside the penalty imposed by an appointing authority only if it found to be so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.

* An employee so suspended without pay pursuant to §75 must be respored to the payroll after 30 days pending a final disciplinary determination by the appointing authority.

** The time during which an officer or employee is suspended without pay may be considered as part of the penalty at the discretion of the appointing authority. If he or she is found not guilty of all charges and specifications, he or she shall be restored to his or her position with back pay for the period of his or her suspension without pay less the amount of any unemployment insurance benefits he or she may have received during such period.

The decision is posted on the Internet at:


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