An employee [Petitioner] of the Town was working as a systems administrator for the Town overseeing the transition to a new telephone system for its offices. It was subsequently discovered that certain Town office telephones had been enabled to record the user's conversation in contravention of a Town Board resolution prohibiting such recording except for calls made to "the Police Department for purposes of police investigations."
Following an investigation, a disciplinary charge was filed against Petitioner alleging three specifications of misconduct and incompetence. After a disciplinary hearing conducted pursuant to Civil Service Law §75, the Hearing Officer sustained the charge and recommended the Petitioner's termination. The Town adopted the Hearing Officer's findings and recommendation as to the penalty to be imposed and terminated Petitioner. Petitioner commenced the instant CPLR Article 78 proceeding seeking a court order to annul his termination and directing his reinstatement to his former position, with back pay and benefits.
The Appellate Division observed that:
1. "Pursuant to Civil Service Law §75(1), a civil service employee shall not be removed or otherwise subjected to any disciplinary penalty except for incompetency or misconduct shown after a hearing upon stated charges";
2. "The employer bears the burden of proving misconduct or incompetency and any determination of same 'must be based on the written charges' and specific factual findings;
3. A court's review of that determination is limited to whether substantial evidence supports the determination;
4. A court cannot conduct such a review unless the hearing officer makes sufficiently specific factual findings to identify the basis for the determination; and
5. A court may not supply factual findings that are absent and in the instant hearing the Hearing Officer did not provide the requisite specificity.
Accordingly, the Appellate Division annulled the Town's dismissal of the Petitioner and remitted the matter to the Town for further proceedings, noting that it was undisputed hearing evidence reflected that Petitioner was the contact person with the telephone vendor selected for the project, in setting up the Town's new telephone system nor was there any question that telephone calls to nonpolice extensions — including calls to the town supervisor, the town supervisor's confidential secretary and the town attorney — were being recorded despite the Town's resolution prohibiting such recordings.
The Appellate Division, however, noted that there were sharp factual disputes regarding Petitioner's alleged culpability, if any, that the Hearing Officer needed to resolve. Although the Hearing Officer stated generally that he found the testimony of Town's witnesses more credible than that of Petitioner and the Vendor's employee, he did not make sufficient factual findings to permit meaningful review by the Court as the Hearing Officer:
1. Failed to discuss each misconduct specification separately; and
2. Never stated the factual findings he relied upon to establish each finding of guilt.
In the words of the Appellate Division, "This failure was particularly glaring when distinguishing between intentional and negligent misconduct, as the Hearing Officer never determined when, how or why telephone calls were improperly recorded and left doubt as to whether he faulted [Petitioner] for intentionally disregarding the [Town's] resolution when the telephone system was set up, for later advising the town supervisor how to turn recording on in violation of that resolution, or for negligently failing to monitor the telephone system in general."
The Appellate Division opined that the "absence of adequate findings further obscured whether the Hearing Officer inappropriately shifted the burden of proof from [the Town] to [the Petitioner]; he cursorily acknowledged that [the Town] bore the burden of proof but then faulted [the Employee] for not documenting his engagement with the [Vendor] or the town supervisor's inquiry about how to activate recording on certain extensions."
Absent specific factual findings as to what occurred and an explanation of the basis for sustaining each specification, the Appellate Division said it "could not determine whether substantial evidence supports the [§75 disciplinary] determination".
Accordingly, the Appellate Division ruled that the Town's determination "must be annulled and the matter remitted for the development of appropriate findings", and, in order to assist the Hearing Officer in rendering an adequate decision upon remittal, Appellate Division "briefly addressed" the Petitioner's remaining arguments to clarify the applicable legal principles, noting:
a. The respondent bears the burden to establish the charged misconduct under Civil Service Law §75; and
b. A Hearing Officer should also be mindful that "seriously controverted" hearsay evidence ... cannot constitute substantial evidence for the determination by itself".
The Appellate Division annulled the Town's determination and remitted the matter to the Town "for further proceedings not inconsistent with this Court's decision".
Click HERE to access the Appellate Division's decision posted on the Internet,