ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

July 17, 2012

Workers disciplined for a “slow down” in performing their duties


Workers disciplined for a “slow down” in performing their duties
OATH Index Nos. 2092/07, 2093/07, 2094/07 & 2095/07

Four sanitation workers were charged with working at a slow pace and failing to complete their routes.

A supervisor testified that he witnessed the workers' pace and ordered them to complete their routes. The Department also presented evidence that the sanitation workers' union asked specific districts not to clean their routes in protesting the suspension of another sanitation worker.


Administrative Law Judge Alessandra Zorgniotti found the four workers intentionally refused to complete their assigned routes and recommended three-day suspensions for each.

July 16, 2012

Education Law Blogs


Education Law Blogs

For those interested in “Education LawBlogs” listed by Justia, there are 20 such blogs so classified by Justia. The 20 are posted below in their “order of popularity” for the month of June 2012.

Focuses on issues of interest to adjunct law professors, including labor law, employment law, employee benefits law and education law issues. By Adjunct Law Professor Mitchell H. Rubinstein.
Last Updated: July 13, 2012 - Rank this Week: 62

Features news and Information for and about organizational ombuds. By Tom Kosakowski.
Last Updated: July 13, 2012 - Rank this Week: 213

Covers No Child Left Behind, privitization, religion, school law, special education and more. By the National School Boards Association.
Last Updated: July 13, 2012 - Rank this Week: 350

Discusses special education law topics. By Jim Gerl.
Last Updated: July 12, 2012 - Rank this Week: 656

Duke's source for advice and information about copyright and publication issues
Last Updated: July 07, 2012 - Rank this Week: 737

Cover cyberlaw, libraries, media and higher education. By Daithí Mac Síthigh.
Last Updated: July 12, 2012 - Rank this Week: 1636

Presents current developments in federal and New York State special education law. By H. Jeffrey Marcus.
Last Updated: July 09, 2012 - Rank this Week: 1690

A blawg from Albany Law School's Diversity Office to engage all students, faculty and staff to create a community of inclusion and to have an open forum to address issues facing all of us.
Last Updated: June 08, 2012 - Rank this Week: 1995

Covers racial and sexual harassment and education law. By Law Offices of Joshua Friedman.
Last Updated: October 01, 2011 - Rank this Week: 2009

Covers case law, news, practical advocacy advice, and developments in state and federal statutes and regulations regarding special education law. By Charles Fox.
Last Updated: July 05, 2012 - Rank this Week: 2170

Covers education law, politics, and the judiciary. By Stuart Buck.
Last Updated: June 26, 2012 - Rank this Week: 2181

Covers educational law topcis, including constitutional issues, labor and employment and special education. By Berchem, Moses & Devlin, P.C.
Last Updated: July 09, 2012 - Rank this Week: 2298

A blawg by Darlene Cardillo, an Instructional Technologist at Albany Law School, dedicated to issues related to instructional technology in general and especially as it relates to legal education.
Last Updated: May 25, 2012 - Rank this Week: 2568

Covers intellectual property issues in academia. By Bond Schoeneck & King.
Last Updated: June 11, 2012 - Rank this Week: 3145

Covers education law and student rights in public and private school settings, from preschool through college. By Michelle Ball.
Last Updated: July 12, 2012 - Rank this Week: 3655

Covers higher education, accreditation, K-12 and education technology news. By DLA Piper.
Last Updated: June 05, 2012 - Rank this Week: 3683

Covers special education law and free appropriate public education. By Sanford Hausler.
Last Updated: June 15, 2010 - Rank this Week: 3731

By Professors James Ottavio Castagnera and Patrick J. Cihon.
Last Updated: May 09, 2008 - Rank this Week: 3741

Discusses local and national news in special education law. By Lillian E. Wong.
Last Updated: June 26, 2012 - Rank this Week: 3770

Explores the nexus between public education and laws affecting how schools operate. By Tyler St Cyr.
Last Updated: January 05, 2012 - Rank this Week: 4287

July 15, 2012

U.S. Department of Labor - Decisions of the Administrative Review Board; May and June 2012


U.S. Department of Labor - Decisions of the Administrative Review Board; May and June 2012
Source: USDOL/OALJ Reporter


June 2012 Decisions:
Gupta v. Headstrong, Inc., ARB Nos. 11-008, 11-065, ALJ No. 2011-LCA-38 (ARB June 29, 2012)
Final Decision and Order PDF| HTM

Jordan v. Sprint Nextel Corp., ARB Nos. 10-113, 11-020, ALJ Nos. 2006-SOX-98, 2010-SOX-50 (ARB June 29, 2012)
Notice of Dismissal PDF| HTM

Administrator, Wage & Hour Div., USDOL v. Tri-County Contractors, Inc., ARB No. 11-014, ALJ No. 2008-SCA-17 (ARB June 29, 2012)
Final Decision and Order PDF| HTM

Beatty v. Inman Trucking Management, Inc., ARB No. 11-021, ALJ Nos. 2008-STA-20 and 21 (ARB June 28, 2012)
Decision and Order of Remand PDF| HTM

Canter v. Maverick Transportation, LLC, ARB No. 11-012, ALJ No. 2009-STA-54 (ARB June 27, 2012)
Final Decision and Order PDF| HTM

Zurcher v. Southern Air, Inc., ARB No. 11-002, ALJ No. 2009-AIR-7 (ARB June 27, 2012)
Final Decision and Order PDF| HTM

Road Spinkler Fitters Local Union No. 669, ARB No. 10-123 (ARB June 20, 2012)
Decision and Order of Remand PDF| HTM

Smith v. Duke Energy Carolinas, LLC, ARB No. 11-003, ALJ No. 2009-ERA-7 (ARB June 20, 2012)
Decision and Order of Remand PDF| HTM

Lubary v. El Floridita, ARB No. 10-137, ALJ No. 2010-LCA-20 (ARB June 18, 2012)
Order Denying Reconsideration PDF| HTM

Butler v. Anadarko Petroleum Corp., ARB No. 12-041, ALJ No. 2009-SOX-1 (ARB June 15, 2012)
Final Decision and Order PDF| HTM

Mizusawa v. United Parcel Service, ARB No. 11-009, ALJ No. 2010-AIR-11 (ARB June 15, 2012)
Final Decision and Order PDF| HTM

May 2012 Decisions:
Baiju v. Fifth Avenue Committee, ARB No. 10-094, ALJ No. 2009-LCA-45 (ARB May 31, 2012)
Order Denying Reconsideration PDF| HTM

Matthews v. Ametek, Inc., ARB No. 11-036, ALJ No. 2009-SOX-26 (ARB May 31, 2012)
Final Decision and Order PDF| HTM

Pik v. Credit Suisse AG, ARB No. 11-034, ALJ No. 2011-SOX-6 (ARB May 31, 2012)
Final Decision and Order PDF| HTM

Spinner v. David Landau and Associates, LLC, ARB Nos. 10-111 and -115, ALJ No. 2010-SOX-29 (ARB May 31, 2012)
Final Decision and Order of Remand PDF| HTM

Huang v. Ultimo Software Solutions, Inc., ARB No. 12-071, ALJ No. 2008-LCA-11 (ARB May 30, 2012)
Notice to Parties that Case Has Not Been Accepted for Review PDF| HTM

Carter v. Titan Transportation Services, Inc., ARB No. 12-060, ALJ No. 2011-STA-36 (ARB May 15, 2012)
Notice to Parties that Case Has Not Been Accepted for Review PDF| HTM

Kumar v. Nihaki Systems, Inc., ARB No. 11-025, ALJ No. 2010-LCA-35 (ARB May 9, 2012)
Final Decision and Order PDF| HTM

Strohl v. YRC, Inc., ARB No. 10-116, ALJ No. 2010-STA-35 (ARB May 7, 2012)
Order Denying Reconsideration PDF| HTM

USDOL, OFCCP v. Frito-Lay, Inc., ARB No. 10-132, ALJ No. 2010-OFC-2 (ARB May 8, 2012)
Final Administrative Order PDF| HTM

July 14, 2012

From the Office of the State Comptroller


From the Office of the State Comptroller
Week of July 9 - 15, 2012

Cheektowaga–Sloan School District Should Better Manage Fund Balance

The Cheektowaga–Sloan Union Free School District has not properly managed its fund balance in accordance with state law and has accumulated more than $2.6 million that should be used to benefit taxpayers, according to an auditreleased Wednesday, July 11, 2012 by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Thursday announced his office completed the following audits: the Fine Fire District; the Scio Fire District #1; and, the Village of Poquott.

Entities subject to the Open Meetings Law and the Freedom of Information Law


Entities subject to the Open Meetings Law and the Freedom of Information Law
Reese v Daines, 20 Misc 3d 1145(A)

Justice NeMoyer’s ruling in the Reese case provides summaries of the basic issues and case law involved in satisfying the mandates of New York’s Open Meetings Law (OML) (Public Officers Law § 100 et seq) and its Freedom of Information Law (FOIL), Public Officers Law Section 84 et. seq.

Justice NeMoyer framed the issue in this case as follows: are nominally private entities legally responsible for carrying out the legislatively mandated merger of the operations of a public hospital and a private hospital operator are, pending such merger, subject to the provisions of the OML and FOIL. The Court conclusion: they are subject to both laws.

As to the Open Meetings Law, Justice NeMoyer said:

“In enacting the Open Meetings Law, the Legislature sought to ensure that public business be performed in an open and public manner and that the citizens of this state be fully aware of and able to observe the performance of public officials and attend and listen to the deliberations and decisions that go into the making of public policy’ (Public Officers Law §100)” (Perez v City Univ. of New York, 5 NY3d 522, 528 [2005]). “Thus, all public bodies’ are subject to the Open Meetings Law” (id., at 528), and “[e]very meeting of a public body [other than a valid executive session] shall be open to the general public” (Public Officers Law §103 [a]). “Meeting’ means the official convening of a public body for the purpose of conducting public business” (Public Officers Law §102 [1]), and “ [p]ublic body’ means any entity, for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body” (Public Officers Law § 102 [2]). It is to be noted that, as defined by General Construction Law §66, a “public corporation” includes a “public benefit corporation” such as ECMCC.

In applying the OML, the courts construe its provisions liberally in accordance with its stated purposes (see Perez, 5 NY3d at 528; Gordon v Village of Monticello, 87 NY2d 124, 127 [1995]; Encore Coll. Bookstores v Auxiliary Serv. Corp. of State Univ. of NY at Farmingdale, 87 NY2d 410, 418 [1995]).

“While an entity must be authorized pursuant to state law to be within the ambit of the Open Meetings Law . . . , not every entity whose power is derived from state law is deemed to be performing a governmental function. Certainly not all advisory bodies that issue recommendations to state agencies are performing governmental functions for purposes of compliance with the Open Meetings Law. Rather, in each case the court must undertake an analysis that centers on the authority under which the entity was created, the power distribution or sharing model under which it exists, the nature of its role, the power it possesses and under which it purports to act, and a realistic appraisal of its functional relationship to affected parties and constituencies’ (Smith v City Univ. of NY, 92 NY2d 707, 713 [1999])” (Perez, 5 NY3d at 528; see Snyder v Third Dept. Judicial Screening Committee, 18 AD3d 1100, 1101 [3d Dept 2005], lv denied 5 NY3d 711 [2005]).

At the outset, this Court notes that the advisory opinions of the Committee on Open Government (which were inconsistent here and upon which both sides thus rely to various extents) are “neither binding upon the agency nor entitled to greater deference in an article 78 proceeding than is the construction of the agency” itself (John P. v Whalen, 54 NY2d 89, 96 [1981]; see Buffalo News v Buffalo Enter. Dev. Corp., 84 NY2d 488, 492 [1994]).

The Court further acknowledges that the precursor Board of Trustees and the since-incorporated WNYHS are, in basic form, private entities, which would militate against a finding that they are “public bod[ies]” subject to the OML. The nominally private charter or status of the entities in question is not determinative, however (see Smith, 92 NY2d at 713-716; Holden v Board of Trustees of Cornell Univ., 80 AD2d 378, 380-381 [3d Dept 1981]).

The Court nonetheless concludes that respondent Board of Trustees is (or was) a “public body” within the meaning of the OML, and that respondent WNYHS is likewise “a public body” within the meaning of that statute (see Smith, 92 NY2d at 713-715; Holden, 80 AD2d at 380-381). Both entities require a meeting quorum in order to conduct “public business” in the performance of a “governmental function for the state,” a state “agency or department,” and/or a “public corporation” (Public Officers Law §102 [2]). In reaching those conclusions, the Court takes notice of the authorities under which respondents were created or otherwise originated, and it makes a practical evaluation of respondents’ functions I various levels of government.

However, the Court takes pains to note that it is not, as argued by petitioner, only or primarily the functional relationship between respondents and the State actors, including the Legislature, the State-created Commission on hospital closings, and the State Department of Health, that is dispositive here. Rather, this matter additionally hinges upon the functional relationship between respondents and the public benefit corporation known as ECMCC.

In sum, the issue here is not so much the presence of governmental control over the activities of respondents, but rather the legislative delegation of control by respondents over a governmental entity (i.e, ECMCC) and its patently governmental activities.

Regarding the Freedom of Information Law, Justice NeMoyer stated that:

"The Legislature enacted FOIL to provide the public with a means of access to governmental records in order to encourage public awareness and understanding of and participation in government and to discourage official secrecy" (Alderson v New York State Coll. Of Agric. & Life Sciences at Cornell Univ., 4 NY3d 225, 230 [2005] [internal quote marks and citation omitted]; see Perez, 5 NY3d at 528 [FOIL guarantees "[t]he people's right to know the process of governmental decision-making and to review the documents . . .. leading to determinations"]; see also Public Officers Law § 84 ["(G)overnment is the public's business and . . . the public . . . should have access to the records of government in accordance with the provisions of (FOIL)"]). "An agency's records are presumptively open to public inspection, without regard to need or purpose of the applicant' "[but see end note * ] (Beechwood Restorative Care Ctr. V Signor, 5 NY3d 435, 440 [2005], quoting Buffalo News, 84 NY2d at 492).

"FOIL is to be liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government" (Capital Newspapers v Whalen, 69 NY2d 246, 252; see Buffalo News, Inc. v Buffalo Enterprise Dev. Corp. (84 NY2d 488,492 [1994]) Russo v Nassau County Community Coll., 81 NY2d 690, 697 [1993]). Further, the term "agency" under FOIL must be given "'its natural and most obvious' meaning" and must be "'liberally construed'" to further the general purpose of FOIL (Russo, 81 NY2d at 697- 698; see Buffalo News, Inc., 84 NY2d at492; see also Capital Newspapers, 69 NY2d at 251-252).

"When faced with a FOIL request, an agency must either disclose the record sought, deny the request and claim a specific exemption to disclosure, or certify that it does not possess the requested document and that it could not be located after a diligent search (see Public Officers Law § 87 [2]; § 89 [3]; Corvetti v Town of Lake Pleasant, 239 AD2d 841, 843 [3d Dept 1997])" (Beechwood Restorative Care Ctr., 5 NY3d at 440-441).

For similar reasons as set forth supra, this Court determines that respondents each were or are a public "agency," meaning "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, counsel, or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof" (Public Officers Law § 86 [3]).

Indeed, respondents essentially concede that if an entity is a "public body" for purposes of the OML, it is a public "agency" for purposes of FOIL (see generally Perez, 5 NY3d at 528), although the converse is not necessarily true (see Citizens for Alternatives to Animal Labs, Inc. v Board of Trustees of State Univ. of New York, 92 NY2d 357, 362 [1998]). Again, insofar as they have been legislatively and administratively delegated the authority to oversee the continued operations of the public benefit corporation known as ECMCC, the disposition of its assets, the fate of its public employees, and its eventual dissolution as a public benefit corporation, respondents undoubtedly are each a "board" or "other governmental agency performing a governmental or proprietary function" for the State of New York and/or County of Erie, or for the public benefit corporation known as ECMCC (Public Officers Law §86 [3]).

Again, contrary to the contention of respondents, the fact that WNYHS is incorporated as a private, not-for-profit entity is far from determinative with respect to its obligations under FOIL (see Westchester-Rockland Newspapers v Kimball, 50 NY2d 575, 580-581 [1980] [held: "voluntary organization" such as volunteer fire department or company that provides essential governmental service is nonetheless subject to FOIL]; Canandaigua Messenger, Inc. v Wharmby, 292 AD2d 835 [4th Dept 2002] [respondent "Recreation Development Corporation" is "public body" as defined by OML]; see also Stoll ex rel Maas v New York State Coll. of Veterinary Med. at Cornell Univ., 94 NY2d 162, 168 [1999] ["more public aspects of the (private entities' affairs) may well be subject to FOIL"]).

In Buffalo News, Inc. v Buffalo Enterprise Dev. Corp. (84 NY2d 488, supra), the Court of Appeals held a nominally private, not-for-profit entity to be an "agency" within the meaning of FOIL. In that case, the respondent agency was held to be "performing an essential governmental function" inasmuch as it was created "to lessen the burdens of government" and to "act in the public interest" by administering public loan programs to encourage private business development and thereby reduce unemployment; was subject to extensive public regulation, funding and other review; had numerous public officials on its board of directors; and otherwise "enjoy[ed] many attributes of public entities" (see id. at 490-492; see also Westchester-Rockland Newspapers, 50 NY2d at 580-581).

Similarly, respondents here were created by the State specifically for the purpose of carrying out the essentially governmental function of correcting a perceived oversupply of hospital and other medical services in the community by merging two hospital operators, one of them a public benefit corporation, into a new entity that will become the major provider of hospital and other health care services in Western New York. As "agenc[ies]" within the meaning of FOIL, respondents were without authority to deny the April 2008 demand of petitioner Quigley for copies of minutes of all meetings of respondent Board of Trustees and respondent WNYHS's board of directors since January 1, 2007. Such meeting minutes necessarily constitute "public records" that must be made available to petitioner Quigley pursuant to FOIL (see Public Officers Law §§86 [4]; 87 [2]; see also § 106 [3]).

The full text of the decision is posted on the Internet at:

*N.B. In New York State Rife and Pistol Asso., Inc., v Kelly, 55 AD3d 222, the Appellate Division held that NYC Police Commissioner Kelly is exempt from having to comply with the Association's Freedom of Information Law (FOIL) request because he met his burden of providing specific proof of the Association's intent to use the requested material for the impermissible purposes of fund-raising and/or commercial gain. The Association had filed a FOIL request seeking a list, in digital format, of the names and addresses of all pistol licensees in the City of New York, other than those authorized to carry a weapon pursuant Public Officers Law §89(7). 

July 13, 2012

Slipping and falling as the result of an undetectable unknown substance on road constitutes an accident within the meaning of the Retirement and Social Security Law


Slipping and falling as the result of an undetectable unknown substance on road constitutes an accident within the meaning of the Retirement and Social Security Law
Sammon v DiNapoli, 2012 NY Slip Op 05587, Appellate Division, Third Department

City of Yonkers Firefighter Michael M. Sammon’s application for accidental disability retirement benefits was denied by the New York State Employees’ Retirement System.

Sammon had fallen when “his foot gave way on a slippery spot on the ground.” As a result he was unable to continue performing the duties of a firefighter. Ruling that Sammon’s disability did not result from an accident within the meaning of Retirement and Social Security Law, the System approved his application for performance of duty disability benefits.*

Sammon filed an Article 78 petition challenging the System’s determination.

The Appellate Division annulled the System’s ruling disapproving Sammon’s application for accidental disability retirement benefits explaining that to qualify as an accident within the meaning of Retirement and Social Security Law §363, the "cause of the injury [that resulted in the disability] must be a sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact." Further, said the court, the burden rests on the applicant to demonstrate that the injury was accidental. 

The Appellate Division held that Sammon satisfied both tests.

As to “slip and fall incidents,” the question of whether an accident occurred turns on whether the condition that caused the slip could have been "reasonably anticipated." Sammon and his coworker testified that the spot on the ground on which he slipped was an unknown substance that blended in with the roadway and was, thus, undetectable.

As this event occurred during the summer and there is no indication that there was inclement weather, the Appellate Division said that it could not agree with System that the fact that sometimes slippery surfaces exist in public roadways is alone enough to conclude that Sammon should have reasonably anticipated the spot on which he slipped.

The court distinguished the situation in Sammon’s case from those involving [1] an individual who was not aware of ice prior to falling but who had observed snow on ground and acknowledged parking lot” iced over in past” and [2] an applicant who did not see an oily substance on stairs but had been warned by a building inspector just prior to falling that stairs were slippery.

* Sammon's had filed an application for accidental disability retirement benefits and, in the alternative, an application for performance of duty disability retirement benefits.

The decision is posted on the Internet at:



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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Courts have a limited authority in modifying a disciplinary penalty imposed by the appointing authority


Courts have a limited authority in modifying a disciplinary penalty imposed by the appointing authority
Mary Ellis v Mahon, 11 NY3d 754

In Ellis v Mahon, 49 AD2d 538, the Appellate Division the annulled the disciplinary penalty imposed on the employee – dismissal – and remanded the matter to the appointing authority “for the imposition of an appropriate penalty less severe than either termination or suspension of [the employee’s] employment.” The individual had been found guilty of incompetence.

The Appellate Division found that “The evidence did not establish, nor does the [appointing authority] suggest, that [the employee’s] conduct was motivated by any malice or selfishness, or that it resulted in any "grave injury to the agency involved or to the public weal."

The Court of Appeals reversed the Appellate Division’s determination, commenting that the worker, who was employed as an eligibility examiner tasked with processing food stamp applications, consistently processed such applications in particularly late fashion, even after multiple warnings concerning her poor performance. Thus, said the court, “we cannot conclude that the penalty of termination shocks the judicial conscience,” citing Pell v Board of Education, 34 NY2d 222.

The Court of Appeals then reiterated its view that “the Appellate Division has no discretionary authority or “interest of justice” jurisdiction in this CPLR article 78 proceeding to review the penalty imposed by the appointing authority.”

The Court cited Torrance v Stout, 9 NY3d 1022, a case involving the willful and intentional illegal disposition of county property, and Rutkanas v Stout, 8 NY3d 897, a case involving conduct that was found to have jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked, in support of its ruling.

The decision is posted on the Internet at:

Appointing authority disqualified from acting on the recommendations submitted by a disciplinary hearing officer as a result of his personal involvement in the disciplinary process

Appointing authority disqualified from acting on the recommendations submitted by a disciplinary hearing officer as a result of his personal involvement in the disciplinary process
Prioleau v Nicoletti,
54 AD3d 768

Joseph Nicoletti, Jr., the Commissioner of the White Plains Department of Public Works, adopted the findings and recommendation of a disciplinary hearing officer finding Assistant Sanitation Superintendent Jerry Prioleau guilty of misconduct and incompetence and terminated his employment with the agency.

The Appellate Division annulled the Commissioner’s decision and remitted the matter to him. The court directing that the Commissioner appoint new “a duly-qualified, impartial decision-maker authorized to review the recommendation of the hearing officer.” This new determination is to be based on the “original hearing record.”

The Court said that the Commissioner’s “personal involvement in this matter,” including meeting with Prioleau and issuing an oral directive to him which later formed the basis for over 200 specifications of misconduct, as well as the fact that he preferred the disciplinary charges against Prioleau, required that he recuse himself from reviewing the findings and recommendation of the hearing officer and acting on any of the charges.

In Ernst v. Saratoga County, 234 A.D.2d 764, the Appellate Division said that “persons who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges,” citing a number of decisions including Lowy v Carter, 210 AD2d 408, Hicks v Fortier, 117 AD2d 930; and Ortiz v Lesser, 83 AD2d 663.”

In other cases courts have been more lenient of the appointing authority being involved in some aspect of the disciplinary process. For example, in Stanton v Board of Trustees, 550 NYS2d 16, the Appellate Division ruled that Stanton was not deprived of administrative due process even though members of the Board who voted to terminate Stanton also participated in the underlying investigation that lead to charges of misconduct being brought against her. “(A)lthough a ‘fair trial in a fair tribunal is a basic requirement of due process’,” the court said, “... it has also been recognized that ‘mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not disqualify a decision-maker.’”


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