Botsford v. Bertoni

• Decision Date: 26 December 2013
• Citation: 2013 N.Y. Slip Op. 08575,977 N.Y.S.2d 497,112 A.D.3d 1266
• Parties: In the Matter of Brian BOTSFORD, Appellant, v. John BERTONI, as Mayor of the Village of Endicott, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

112 A.D.3d 1266
977 N.Y.S.2d 497
2013 N.Y. Slip Op. 08575

In the Matter of Brian BOTSFORD, Appellant,
v.
John BERTONI, as Mayor of the Village of Endicott, et al., Respondents.

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

Dec. 26, 2013.

[977 N.Y.S.2d 498]

Hinman, Howard & Kattell, LLP, Binghamton (Jennifer M. Donlan of counsel), for appellant.

Coughlin & Gerhart, LLP, Binghamton (Paul J. Sweeney of counsel), for respondents.

Before: PETERS, P.J., McCARTHY, SPAIN and EGAN Jr., JJ.

PETERS, P.J.

Appeal from a judgment of the Supreme Court (Lebous, J.), entered July 31, 2012 in Broome County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Mayor of the Village of Endicott terminating petitioner's employment.

Petitioner was employed as a fire inspector by the Village of Endicott Fire Department and was the president of its

[977 N.Y.S.2d 499]

firefighters union. In May 2009, he was charged with multiple counts of misconduct pursuant to Civil Service Law § 75 after engaging in a verbal altercation with Stephen Hrustich, the Fire Chief, concerning Hrustich's directive that all firefighters undergo a respiratory physical examination. The charges alleged that, upon arriving at the fire station to address the matter, petitioner stated to Hrustich, “What the f* * * is your problem” (hereinafter the first statement) and, after a verbal warning, stated, “I am the f* * *ing [u]nion president and you cannot do a f* * *ing thing to me,” or words to that effect (hereinafter the second statement). Shortly after the disciplinary charges were filed against petitioner, he filed an improper practice charge with the Public Employment Relations Board (hereinafter PERB) alleging that respondents' decision to discipline him amounted to anti-union animus.

At the hearing on the disciplinary charges, petitioner acknowledged that he had made the first statement but denied making the second statement, testifying that he instead stated, “I'm the union president and I'm acting in my capacity as the union president.” Crediting the testimony of Hrustich and a firefighter who witnessed the encounter to the effect that petitioner in fact made the second statement, a Hearing Officer found petitioner guilty of the charges and recommended a period of unpaid suspension. Respondent John Bertoni, the Mayor of respondent Village of Endicott, sustained the findings of guilt but modified the period of unpaid suspension.¹

During the March 2010 PERB hearing, held shortly after Bertoni had sustained the findings in the disciplinary hearing, petitioner again testified that he did not make the second statement. Based upon this testimony and his testimony at the disciplinary hearing, petitioner was served with another notice in June 2011 charging him with misconduct amounting to perjury and making a false official statement, as well as incompetence for failure to be truthful. Following a hearing, a Hearing Officer issued a recommendation finding petitioner guilty of the charges set forth above and recommending that his employment be terminated. Bertoni adopted the findings and penalty of the Hearing Officer, and petitioner commenced this CPLR article 78 proceeding challenging the determination. Supreme Court dismissed the petition and this appeal ensued.²

As a preliminary matter, we cannot agree with the concurrence/dissent that subjecting petitioner to disciplinary action under these circumstances deprived him of his rights under Civil Service Law § 75, violates public policy or is otherwise improper. Where a witness testifies falsely under oath, he or she may properly be subject to additional proceedings and sanctions ( see Brogan v. United States, 522 U.S. 398, 404–405, 118 S.Ct. 805, 139 L.Ed.2d 830 [1998]; LaChance v. Erickson, 522 U.S. 262, 267–268, 118 S.Ct. 753, 139 L.Ed.2d 695 [1998];

[977 N.Y.S.2d 500]

United States v. Dunnigan, 507 U.S. 87, 94–95, 113 S.Ct. 1111, 122 L.Ed.2d 445 [1993]; Matter of Torres v. Kerik, 299 A.D.2d 214, 214, 750 N.Y.S.2d 21 [2002], lv. denied99 N.Y.2d 508, 757 N.Y.S.2d 818, 787 N.E.2d 1164 [2003] ). Indeed, the United States Supreme Court has squarely held-under circumstances indistinguishable from those present here-that “a [g]overnment agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct” (LaChance v. Erickson, 522 U.S. at 268, 118 S.Ct. 753). And, in so doing, the Court specifically rejected the argument-proffered by the concurrence/dissent here-that to permit the initiation of perjury charges under such circumstances may “coerce[ ] [individuals] into admitting the misconduct, whether they believe that they are guilty or not, in order to avoid the more severe penalty of removal possibly resulting from a falsification charge” (id. at 267 [internal quotation marks omitted] ). Simply put, “[p]etitioner was not penalized for exercising his statutory right to a hearing on the underlying charges, but for giving false testimony at that hearing” ( Matter of Torres v. Kerik, 299 A.D.2d at 214, 750 N.Y.S.2d 21; see LaChance v. Erickson, 522 U.S. at 267–268, 118 S.Ct. 753).

Reversal is required, however, because Bertoni should have been disqualified from reviewing the Hearing Officer's recommendations. To be sure, an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges ( see e.g. Matter of Compasso v. Sheriff of Sullivan County, 29 A.D.3d 1064, 1064–1065, 814 N.Y.S.2d 773 [2006]; Matter of Hart v. Coombe, 229 A.D.2d 754, 755, 645 N.Y.S.2d 901 [1996], lv. denied89 N.Y.2d 802, 653 N.Y.S.2d 279, 675 N.E.2d 1232 [1996]; Matter of Joseph v. Stolzenberg, 198 A.D.2d 506, 506, 604 N.Y.S.2d 198 [1993]; see also Matter of Longton v. Village of Corinth, 57 A.D.3d 1273, 1276, 869 N.Y.S.2d 682 [2008], lv. denied13 N.Y.3d 709, 2009 WL 3379123 [2009] ). However, where, as here, there is evidence indicating that the administrative decision maker may have prejudged the matter at issue, disqualification is required ( see Matter of 1616 Second Ave. Rest. v. New York State Liq. Auth., 75 N.Y.2d 158,...