McComb v. ReasonerMcComb v. Reasoner
Ordered that on the Court‘s own motion, the notice of appeal is treated as an application for leave to appeal and leave to appeal is granted; and it is further,
Ordered that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion which were pursuant to
Ordered that the respondents’ time to serve and file an answer to the petition is extended until 20 days after service upon them of a copy of this decision and order; and it is further,
Ordered that one bill of costs is awarded to the petitioner payable by the respondents Anne Reasoner, Joseph M. Delfino, and City of White Plains, N.Y.
The petitioner was appointed Deputy Budget Director for the City of White Plains by Eileen Earl, the City‘s Budget Director. Based, inter alia, on allegations of misconduct made by both Earl and Chief Deputy Budget Direсtor Anne Reasoner, Mayor Joseph Delfino preferred charges against the petitioner, and, in writing, designated David M. Stein to conduct a disciplinary hearing, make findings of fact, and make a recommendation as to any discipline. During the hearing, both Earl and Reasoner testified that the petitioner had made threats of physical violence against each of them. After Stein conducted the hearing for six days, the petitioner objected that Stein was without authority to preside over the hearing because neither Earl nor Reasoner had delegated authority to him act as a hearing officer, and no one else had that authority. Stein overruled the objection and completed the hearing, finding the petitioner guilty of two charges of “insubordination and/or misconduct,” and one charge of “neglect of duty and/or incompetence,” and recommending her termination. Thereafter, Mayor Delfino, rather than rendering a final determination himself, designated Martin F. Scheinman to review the hearing testimony and Stein‘s findings and recommendations, and to render the final determination. Scheinman adopted Stein‘s findings and recommendations, and directed the termination of the petitioner‘s employment. By letter dated August 2, 2004, Reasoner, who at that time had become the Budget Director, notified the petitioner that she was terminated in accordance with Scheinman‘s determination.
The petitioner commenced the instant article 78 proceeding against the City, Delfino, Reasоner, and Scheinman (hereinafter the respondents), contending that it was improper for Mayor Delfino to prefer the charges against her, to designate Stein as the hearing officer to conduct the hearing on the charges, and to designate Scheinman as the ultimate decision-maker, and thus that the hearing was held, and the final determination rendered, without jurisdiction. The Supreme Court granted the motion of the City, Delfino, and Rеasoner pursuant to
The statute does provide, however, that “[t]he hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such сharges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose” (
The petition also stated a cause of action insofar as it alleged that Mayor Delfino‘s delegation of final decision-making authority to Scheinman, an individual with no relationship tо the City, was inappropriate. The statute requires that the determination with respect to the employee‘s status be made by the officer who has authority to remove the employee (see
The necessity that decision-making authority be delegated in certain circumstances, however, does not allow for unlimited discretion in determining the idеntity of the delegee. Inherent in the statutory command that the decision be made by the official with authority to remove (see
Here, Earl and Reasoner, who had actual authority with respect to the petitioner‘s employment, were unаvailable in light of their testimony at the hearing. Contrary to the petitioner‘s contentions, however, Mayor Delfino was not necessarily similarly situated, inasmuch as he was not a witness to the acts alleged in the proceeding, and there is nothing in the petition or the record from which it can be concluded that Mayor Delfino had any other involvement in the proceedings. Thus, despite the fact that he was the officer who prеferred the charges, it appears on this record that he suffered from no disability requiring his recusal (see Matter of Gioe v Board of Educ. of E. Williston School Dist., 126 AD2d 723, 723-724 [1987]; see also Matter of Joseph v Stolzenberg, 198 AD2d 506 [1993]; cf. Matter of Brundage v Yonkers Parking Auth., supra) and, therefore, could have made the final decision with respect to the petitioner‘s employment. As such, the Supreme Court correctly dismissed the fifth cause of action, which alleged that the Mayor was partial and biased, and that had he been the petitioner‘s appointing authority, he would have had a nondelegable duty to make the final determination in any event.
Even if a delegation of final decision-making authority had been required here, however, the delegаtion to Scheinman appears to be improper since, at least on this record, Scheinman was not “a duly qualified individual authorized to act during the absence or inability of the [disqualified decision-maker] and not previously involved in the proceeding or charges” (Matter of Martin v Platt, supra at 759-760). The petition therefore stated a cause of action in this regard and the matter must be remitted to the Supreme Court to allow the respondents to answer the petition (see Matter of Briarcliff Manor Union Free School Dist. v Westchester County Human Rights Commn., 20 AD3d 564, 565 [2005]).
The petitioner‘s remaining contentions are without merit.