Dean v. Bradford

• Decision Date: 01 February 1990
• Citation: 158 A.D.2d 772,551 N.Y.S.2d 364
• Parties: In the Matter of H. James DEAN, Petitioner, v. Peter A. BRADFORD, as Chairman of the State of New York Department of Public Service, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 364

551 N.Y.S.2d 364

158 A.D.2d 772

In the Matter of H. James DEAN, Petitioner, v. Peter A. BRADFORD, as Chairman of the State of New York Department of Public Service, Respondent.

Supreme Court, Appellate Division,

Third Department.

Feb. 1, 1990.

Hinman, Straub, Pigors & Manning, P.C. (John R. Saccocio, of counsel), Albany, for petitioner.

Robert Abrams, Atty. Gen. (John Q. Driscoll, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and KANE, CASEY, LEVINE and HARVEY, JJ.

LEVINE, Justice.

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 dismissed petitioner from employment with the Department of Public Service.

In 1982, petitioner, then employed by the Department of Labor, sought to transfer to an administrative position with the Department of Public Service (hereinafter DPS). In connection with this transfer, petitioner completed an employment application dated April 2, 1982 and submitted a resume. Petitioner's resume stated that he had received a B.A. degree from Morgan State College. Petitioner signed his employment application affirming that all statements were true and that he understood that a false statement could cause his dismissal. Petitioner was hired by DPS as a Senior Administrative Assistant and he was assigned to the Office of the Secretary in the New York City office.

Thereafter, in late 1983, the New York County District Attorney began an investigation into petitioner's official conduct based upon allegations that petitioner had assigned work related to a personal business venture to State employees. Counsel to DPS was notified of the investigation and was asked to provide certain documents, but was requested to keep the matter confidential. During the same period, DPS' Albany office became aware of various questionable activities of petitioner and received information indicating that petitioner had falsely claimed to have a college degree, but took no action due to the pending criminal investigation. The District Attorney closed the investigation of petitioner in September 1985, concluding that there was not sufficient evidence of criminal conduct to warrant prosecution. In December 1986, Peter Fort, petitioner's immediate supervisor, detailed petitioner's work performance since the end of the District Attorney's investigation and claimed that petitioner was engaged in theft of services from DPS and that there had been allegations of harassment by petitioner of permanent and temporary employees.

In January 1987, John Kelliher, Secretary to the Public Service Commission, requested assistance from the Office of the Inspector General to investigate the various complaints and suspicions against petitioner. Thereafter, an investigation was conducted by John Chandler of that office, who interviewed 29 persons and submitted a report on April 20, 1987. In August 1988, a notice of discipline was served on petitioner charging him with (1) making a false statement on his application for employment with DPS that he had received a B.A. degree from Morgan State College, (2) operating a private consulting business from his office at DPS and using DPS employees, facilities and equipment in connection therewith, and (3) incompetence in the performance of his duties as a supervisor. Included with the notice of discipline were seven appendices which contained numerous memoranda, letters and investigative reports pertaining to petitioner's alleged misconduct.

Petitioner served an answer denying the charges. In addition, petitioner moved for, inter alia, dismissal of the charges, a change of venue, to strike appendix A and portions of appendix B, and for recusal of the Hearing Officer if he should read the prejudicial material allegedly contained in appendices A and B. The Hearing Officer denied the motions for change of venue and recusal and reserved decision on petitioner's other motions.

At the hearing on the charges, several DPS personnel and Chandler, who had conducted the Inspector General's investigation of petitioner, testified on behalf of DPS. In addition, DPS submitted evidence in the form of interoffice memoranda, letters and worksheets regarding petitioner's telephone usage and a telephone log in further support of the charges. Petitioner did not testify or present any evidence in defense. Following...