The statute of limitations set out in Civil Service §75(4) does not control where the charges alleged would, if proved in a court, constitute a crime
Snowden v Village of Monticello, 2018 NY Slip Op 08226, Appellate Division, Third Department
In July 2016 the Village of Monticello's Building Inspector and Code Enforcement Officer [Petitioner], was served with a notice and statement of disciplinary charges pursuant to §75 of the Civil Service Law. Charge 1 alleged that Petitioner had "committ[ed] acts constituting crimes," related to "the unauthorized demolition of a building in October 2013, and the failure to properly abate the asbestos contained therein."* Petitioner denied the allegations and contended that Charge 1 as untimely, citing Civil Service Law §75(4).
In September 2016, following a hearing, the §75 Hearing Officer found that Charge 1 was not time-barred and was supported by substantial evidence. The Hearing Officer recommended the appointing authority impose termination of Petitioner from his position as the penalty. Adopting the findings and recommendation of the Hearing Officer, the appointing authority terminated Petitioner's employment with the Village.
Petitioner commenced an CPLR Article 78 proceeding seeking a court order annulling the appointing authority's determination. Supreme Court transferred the matter to the Appellate Division.
Petitioner's primary contention on appeal was that Charge 1 should have been dismissed as untimely.
The Appellate Division noting that although §75(4) provides that "no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, observed that "this limitations period does not apply 'where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.'"
§75.1 Specification 1 of Charge 1 incorporated the allegations set out in Petitioner's related nine-count criminal indictment stemming from the same underlying conduct and events. Rejecting Petitioner's assertions to the contrary, the Appellate Division said that — by statutory directive — its inquiry was "limited to the allegations contained in the charges and specifications, without consideration of the proof or papers submitted in Petitioner's subsequent judicial proceeding (or at any ensuing disciplinary hearing) challenging the charges as untimely."
The court then explained that in count 8 of the criminal indictment Petitioner was alleged to have "knowingly, unlawfully and intentionally engage[d] persons to effect the unauthorized demolition of the [building], knowing that unabated asbestos was located therein or thereupon, causing the release of a substance hazardous to public health, safety or the environment, said substance being asbestos." If proven, said the court, these allegations would constitute the crime of endangering public health, safety or the environment in the fourth degree (see ECL 71-2711[3]."
Further, said the Appellate Division, count 9 alleges that Petitioner, "with regard to the demolition of the building, ... "engag[ed] persons neither certified nor qualified to abate the asbestos located therein, . . . knowing that asbestos was located therein, such demolition having been performed without asbestos abatement or any reasonable procedure to prevent the release of asbestos into the public air, . . . [and] having released a considerable amount of [asbestos] dust and debris into the air" in a populated area." These allegations, said the court, would, if proven at trial, constitute the crime of criminal nuisance in the second degree, citing Penal Law §240.45[1].
The Appellate Division further found that "the allegations against [Petitioner] as detailed in counts 5 through 7 would constitute, if established at trial, official misconduct," citing Penal Law §195.00[2].
Thus, said the court, the Hearing Officer properly found that the charge is not time-barred within the meaning of Civil Service Law §75[4].
As to Petitioner's argument that the appointing authority's determination should be annulled as unsupported by substantial evidence, the court said the appointing officer's determination to terminate Petitioner's employment pursuant to Civil Service Law §75 must be sustained if supported by substantial evidence. In conducting its review the Appellate Division, the court cited Matter of Longton v Village of Corinth, 57 AD3d 1273, leave to appeal denied 13 NY3d 709, and said "this Court may not substitute its own judgment for that of [appointing authority], even when evidence exists that could support a different result." Further, in the event there is conflicting evidence, the Appellate Division said it must defer to the Hearing Officer's credibility determinations.
Finding that there was substantial evidence in the record to support finding Petitioner guilty of the charges served upon him pursuant to §75 alleging that he had committed acts of misconduct that constituted crimes," the Appellate Division sustained the appointing authority's decision to impose the penalty of termination of Petitioner's employment.
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The Village of Monticello decision is posted on the Internet at: