Blamah v. N.Y. Office of the State Comptroller

• Decision Date: 14 July 2022
• Docket Number: 532394
• Citation: 207 A.D.3d 905,172 N.Y.S.3d 509
• Parties: In the Matter of Tenneh BLAMAH, Petitioner, v. NEW YORK OFFICE OF the STATE COMPTROLLER, Respondent.
• Court: New York Supreme Court — Appellate Division

207 A.D.3d 905

172 N.Y.S.3d 509

In the Matter of Tenneh BLAMAH, Petitioner,

v.NEW YORK OFFICE OF the STATE COMPTROLLER, Respondent.

532394

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

Calendar Date: May 24, 2022

Decided and Entered: July 14, 2022

Stewart Law Firm PLLC, Rosedale (Nadira S. Stewart of counsel), for petitioner.

Letitia James, Attorney General, Albany (Beezly J. Kiernan of counsel), for respondent.

Before: Lynch, J.P., Clark, Pritzker, Ceresia and McShan, JJ.

MEMORANDUM AND JUDGMENT

Lynch, J.P.

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 terminating petitioner's employment.

For nearly 15 years, petitioner was respondent's chief examiner within the Division of Local Government for the Newburgh Regional Office. In that capacity, she was responsible for, among other things, developing a plan for the audits the office undertook of local entities and making audit assignments. By letters dated February 26, 2019 and March 6, 2019, petitioner was informed pursuant to Civil Service Law § 75 that respondent had received information implicating her as a potential subject for discipline, without specifying the subject of the inquiry. After submitting to interviews regarding the allegations, petitioner was served with two notices of discipline formally charging her with various acts of misconduct during an audit of the Croton–on–Hudson Volunteer Fire Department (hereinafter the Croton–on–Hudson audit) and an audit of the Lakeland Central School District (hereinafter the Lakeland audit). Petitioner denied the charges. Following a disciplinary hearing, a Hearing Officer concluded that certain specifications in the charge documents were unsupported, but ultimately recommended that petitioner be found guilty of the charges and terminated from employment. Respondent adopted the Hearing Officer's recommendations and terminated petitioner's employment, effective December 31, 2019. Petitioner commenced this CPLR article 78 proceeding seeking to annul respondent's determination and be reinstated to her position. Following joinder of issue, the proceeding was transferred to this Court (see CPLR 7804[g] ).

Contrary to petitioner's contention, the misconduct findings are supported by substantial evidence. "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’ " ( Matter of Scuderi–Hunter v. County of Delaware, 202 A.D.3d 1309, 1314, 163 N.Y.S.3d 664 [2022] ; accord Matter of Kiyonaga v. New York State Justice Ctr. for the Protection of People with Special Needs, 204 A.D.3d 1351, 1353, 168 N.Y.S.3d 142 [2022] ). "The standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence" ( Matter of Scuderi–Hunter v. County of Delaware, 202 A.D.3d at 1314, 163 N.Y.S.3d 664 [citations omitted]) – "a minimal standard that requires less than [a] preponderance of the evidence and demands only the existence of a rational basis in the record as a whole to support the findings upon which the determination is based" ( Matter of Wales v. City of Saratoga Springs, 200 A.D.3d 1262, 1264, 160 N.Y.S.3d 389 [2021] [internal quotation marks and citations omitted]).

For the Croton–on–Hudson audit, the charge document alleged that petitioner: (1) was insubordinate when she ignored an order from a superior to cease work on the audit after learning that the treasurer of the Croton–on–Hudson Fire Department (hereinafter the Fire Department) had committed a fraud, at which point respondent's Division of Investigations (hereinafter DOI) assumed responsibility over the investigation; (2) violated respondent's internal fraud protocols by directing a subordinate to contact the Croton–on–Hudson Police Department (hereinafter the Police Department) to obtain information about the fraud notwithstanding that DOI was exclusively tasked with that responsibility; (3) lied about her conduct during the investigation into the matter; and (4) acted unethically and failed to adhere to the Local Government and School Accountability's Comprehensive Audit Manual (hereinafter the Comprehensive Audit Manual).

The hearing evidence established that petitioner's office became aware of a significant disparity between the amount of state funds received by the Fire Department and the funds ultimately distributed to local fire units. Nevertheless, the draft audit report did not identify any fraud in this respect. Before the final audit report was issued, evidence surfaced that the Fire Department's treasurer may have stolen approximately $300,000 in funds distributed from the State. Gabriel Deyo – petitioner's supervisor – testified that he first learned about the alleged fraud within the Fire Department on March 17, 2018, through an email from Andy SanFilippo, the Executive Deputy Comptroller. SanFilippo directed Deyo to cease all work on the Croton–on–Hudson audit, as DOI was, under respondent's internal fraud protocols, responsible for coordinating "[a]ll contacts with law enforcement."¹ Deyo, in turn, testified that he called petitioner on or around March 19, 2018 and told her to "take no further action."

Despite that order, there was evidence that petitioner knew that DOI had taken over the investigation and yet continued to take further action on the audit. To that end, Thomas Casaregola, DOI's chief of forensic audits, revealed that he advised petitioner on March 20, 2018 that law enforcement had reached out to his office about an alleged fraud within the Fire Department and informed her that "we [a]re going to be working on the case." He maintained that it was clear from their conversation that DOI was now involved. Another auditor who was present for this conversation corroborated Casaregola's testimony to this effect. After a March 22, 2018 meeting with petitioner and other individuals involved with the audit, Casaregola learned that petitioner had directed Ellen Kennedy – one of her subordinates – to contact members of the Police Department regarding the matter. Kennedy herself corroborated this assertion, testifying that, on March 21, 2018, petitioner directed her to "contact someone in the Village to find out who the individual was that had" engaged in the fraud, and sent her an email stating that "the assistant chief may know" and to "please call the chief." Casaregola indicated that petitioner's actions in this respect could have compromised DOI's investigation and threatened respondent's reputation by making it appear as if it did not have a cohesive unit tasked with investigating the matter.

During her March 5, 2019 interview regarding the allegations, petitioner denied having been told by Deyo on March 19, 2018 to cease work on the Croton–on–Hudson audit. She also denied having been informed by Casaregola the next day that DOI was involved in the matter, emphasizing that, although they engaged in a conversation about an issue with the audit, she did not interpret his statements to mean that DOI had taken over. As for the allegation that petitioner directed Kennedy to reach out to the Police Department, her answers during the interview were somewhat evasive. She acknowledged directing Kennedy to contact the "council members" for information about the alleged fraud but not the Police Department.

Deferring to the Hearing Officer's credibility determinations, we conclude that there is substantial evidence in the record to sustain the misconduct findings as they pertain to the Croton–on–Hudson audit. The allegation under charge No. 1 that petitioner engaged in insubordination was supported by the testimony that she violated Deyo's order – given on or around March 19, 2018 – to stop all work on the Croton–on–Hudson audit by thereafter directing Kennedy to contact village officials and the chief of police regarding the alleged fraud within the Fire Department (see Matter of Gaffney v. Addison, 132 A.D.3d 1360, 1360, 17 N.Y.S.3d 537 [2015] ; Matter of Foster v. Saratoga Springs City School Dist., 16 A.D.3d 824, 825, 790 N.Y.S.2d 748 [2005] ). This same evidence, along with Casaregola's testimony that it was "clear" from his conversation with petitioner on March 20, 2018 that DOI had become involved in the fraud investigation – thereby triggering respondent's internal fraud protocols requiring all contact with law enforcement to be arranged by DOI – supports the finding of misconduct under charge No. 2.

With regard to charge No. 3, after comparing petitioner's statements during the March 5, 2019 interview with the contradictory testimony elicited by respondent during the hearing, and taking into account the Hearing Officer's credibility determinations (see Matter of Snowden v. Village of Monticello, 166 A.D.3d 1451, 1453, 89 N.Y.S.3d 366 [2018] ), we conclude that there is substantial evidence to support the finding that petitioner was untruthful during the interview. Charge No. 4 alleged that petitioner's actions between March 19 and March 22, 2018 were unethical and failed to adhere to the Comprehensive Audit Manual, which required respondent's employees to "conduct [...