February 13, 2020

Appointing authority adopts the recommendation of the hearing officer in part

A volunteer member [Petitioner] of a fire department [Department] was served with disciplinary charges alleging gross misconduct and conduct unbecoming a member of the Department as the result of a physical confrontation between Petitioner and another member of the Department.

Following a disciplinary hearing conducted pursuant to §209-l of the General Municipal Law, the hearing officer found Petitioner not guilty of gross misconduct but guilty of conduct unbecoming a member of the Department. The hearing officer then recommended Petitioner be suspended for 60-days. The Board of Fire Commissioners [Board] determined that Petitioner was guilty of both charges and imposed the penalty of expulsion from the Department and "disqualified [Petitioner] from membership for life." 

Supreme Court dismissed Petitioner's appeal of the Board's determination, which decision was sustained by the Appellate Division after it rejected Petitioner's argument that the sanction of expulsion and disqualification from membership for life was an abuse of discretion by the Board. 

Citing DeStefano v Incorporated Vil. of Mineola, 167 AD3d 740, and other decisions, the Appellate Division turned to a procedural issue, noting that Petitioner had  raised the question of whether the Board's determination was supported by substantial evidence. Accordingly, said the court, the lower tribunal should have transferred the proceeding to it without deciding that issue. Notwithstanding this procedural defect, "because the complete record" was now before it, the Appellate Division elected to treat the matter as one that had been transferred to it and reviewed the determination de novo

The Appellate Division then explained the "Upon judicial review of a determination rendered by an administrative body following a hearing, [the Appellate Division's] function is limited to consideration of whether the determination is supported by substantial evidence". Noting that "substantial evidence" means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact," Appellate Division opined that the Board's determination sustaining the charges of gross misconduct and conduct unbecoming a member of the Department was supported by substantial evidence. 

Although Petitioner argued that the confrontation between himself and the other member of the Department constituted "harmless horseplay," it is undisputed that Petitioner causing an injury to that member, in violation of Department policy.

Noting the "judicial review of an administrative penalty" is limited to whether the measure or mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law" the Appellate Division, citing Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222, concluded that the penalty of expulsion from the Department and disqualification from membership for life is not so disproportionate to the offenses as to be shocking to one's sense of fairness.

The decision is posted on the Internet at: