Arthur v. Soares

Decision Date31 May 2012
Citation33 IER Cases 1778,945 N.Y.S.2d 782,95 A.D.3d 1619,2012 N.Y. Slip Op. 04255
PartiesIn the Matter of D. Richard ARTHUR, Petitioner, v. P. David SOARES, as District Attorney of Albany County, Respondent.
CourtNew York Supreme Court — Appellate Division

95 A.D.3d 1619
945 N.Y.S.2d 782
33 IER Cases 1778
2012 N.Y. Slip Op. 04255

In the Matter of D. Richard ARTHUR, Petitioner,
v.
P. David SOARES, as District Attorney of Albany County, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

May 31, 2012.


[945 N.Y.S.2d 784]


Richard A. Kohn, Albany, for petitioner.

Thomas Marcelle, County Attorney, Albany (John E. Maney of counsel), for respondent.


Before: MERCURE, J.P., SPAIN, STEIN, GARRY and EGAN JR., JJ.

MERCURE, J.P.

[95 A.D.3d 1619]Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent which terminated petitioner's employment.

Petitioner is the former Director of Administration in the office of respondent, the Albany County District Attorney. In April 2009, respondent suspended petitioner from that position with pay and, in June 2009, charged petitioner with misconduct, insubordination and incompetence. The charges alleged that petitioner delegated job responsibilities without authorization and failed to comply with a directive to resume those duties, misrepresented his job duties in a letter to the United States Department of Justice, and mismanaged financial transactions, thereby jeopardizing the District Attorney's office.1 Respondent claims that he designated the Albany County Commissioner of Social Services to be the Hearing Officer in the Civil Service Law § 75 disciplinary proceeding against petitioner. The Hearing[95 A.D.3d 1620]Officer found petitioner guilty of the charges and recommended termination, and respondent thereafter adopted that recommendation, prompting this CPLR article 78 proceeding. Because the record evinces that the Hearing Officer lacked jurisdiction, did not properly weigh the evidence, and failed to adequately detail the specific factual findings and hearing evidence relied upon, we are constrained to annul the determination and reinstate petitioner to his position, with back pay and benefits.

Pursuant to Civil Service Law § 75(2), a hearing on employee disciplinary charges “shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a ... person designated by such officer or body in writing for that purpose.” It is well settled that absent “a written delegation authorizing a deputy or other person to conduct the hearing, the removing [body] or officer has no jurisdiction to discipline an employee” (Matter of Wiggins v. Board of Educ. of City of N.Y., 60 N.Y.2d 385, 387, 469 N.Y.S.2d 652, 457 N.E.2d 758 [1983];see Matter of Gardner v. Coxsackie–Athens Cent. School Dist. Bd. of Educ., 92 A.D.3d 1093, 1094, 939 N.Y.S.2d 149 [2012] ). This Court has previously determined that the requirements of Civil Service Law § 75(2) are satisfied by a written record of such designation, such as the minutes of a board meeting at

[945 N.Y.S.2d 785]

which a resolution was adopted appointing the hearing officer, or a letter to the hearing officer advising him or her that the official designation has taken place ( see Matter of Perryman v. Village of Saranac Lake, 64 A.D.3d 830, 832–833, 881 N.Y.S.2d 693 [2009];Matter of Stafford v. Board of Educ. of Mohonasen Cent. School Dist., 61 A.D.3d 1259, 1259–1260, 877 N.Y.S.2d 503 [2009],lv denied13 N.Y.3d 704, 2009 WL 2779386 [2009];see also Matter of...

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4 cases
  • Starla D. v. Jeremy E.
    • United States
    • New York Supreme Court — Appellate Division
    • May 31, 2012
  • McKenzie v. Bd. of Educ. of the City Sch. Dist. of Albany
    • United States
    • New York Supreme Court — Appellate Division
    • November 1, 2012
    ...as ... a letter to the hearing officer advising him or her that the official designation has taken place” (Matter of Arthur v. Soares, 95 A.D.3d 1619, 1620, 945 N.Y.S.2d 782 [2012];see Matter of Stafford v. Board of Educ. of Mohonasen Cent. School Dist., 61 A.D.3d 1259, 1260, 877 N.Y.S.2d 5......
  • Urfirer v. SB Builders, LLC
    • United States
    • New York Supreme Court — Appellate Division
    • May 31, 2012
  • Ethington v. Cnty. of Schoharie
    • United States
    • New York Supreme Court — Appellate Division
    • June 20, 2019
    ...have a clear legal right to reinstatement or back pay (see 144 A.D.3d at 1474, 42 N.Y.S.3d 426 ; compare Matter of Arthur v. Soares, 95 AD3d 1619, 1620–1622, 945 N.Y.S.2d 782 [2012] ; Matter of Cantone v. DiNapoli, 50 A.D.3d 1307, 1308, 855 N.Y.S.2d 728 [2008] ; Matter of Longton v. Village......

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