Purdy v. Kreisberg
| Decision Date | 12 June 1979 |
| Parties | , 391 N.E.2d 1307 In the Matter of Ralph PURDY, Respondent, v. Barry KREISBERG et al., Constituting the Board of Police Commissioners of the Town of Greenburgh, et al., Appellants. |
| Court | New York Court of Appeals Court of Appeals |
In this CPLR article 78 proceeding we are called upon to decide whether the determination of the respondent Board of Police Commissioners of the Town of Greenburgh dismissing petitioner Purdy from the police department is supported by substantial evidence.
Petitioner, a veteran of the Town of Greenburgh police force, as was charged with violating various departmental rules and regulations. After a hearing at which petitioner was represented by counsel and extensive testimony was adduced, petitioner was found guilty of violating chapter 9.5.14 of the applicable departmental rules which provides that "(m)embers shall not use nor threaten to use their official power or authority in any manner, directly or indirectly, in aid of or against any political party or organization, association or society." * The Board of Police Commissioners (hereinafter "Board"), concluding that "the charges and the findings seriously affect (petitioner's) character, fitness and efficiency as a police officer", directed that petitioner be immediately dismissed.
Petitioner then instituted the present proceeding seeking to annul, or in the alternative modify, the Board's determination. The Appellate Division annulled the Board's determination, holding that petitioner "was not guilty of the charged violation in that he did not 'use nor threaten to use' his 'official power or authority' in a politically partisan manner" and directed that petitioner be restored to his prior position. We now reverse and reinstate the Board's determination.
Upon judicial review of a determination rendered by an administrative body after a hearing, the issue presented for the court's consideration is limited to whether that determination is supported by substantial evidence upon the entire record. (CPLR 7803, subd. 4; see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 57, 379 N.E.2d 1183, 1186; Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 230-232, 356 N.Y.S.2d 833, 838-840, 313 N.E.2d 321, 324-326; Matter of Holland v. Edwards, 307 N.Y. 38, 44, 119 N.E.2d 581, 583; Matter of Stork Rest. v. Boland, 282 N.Y. 256, 266-267, 26 N.E.2d 247, 251-252.) A reviewing court in passing upon this question of law may not substitute its own judgment of the evidence for that of the administrative agency, but should review the whole record to determine whether there exists a rational basis to support the findings upon which the agency's determination is predicated. (See Matter of Pell v. Board of Educ., 34 N.Y.2d, at p. 231, 356 N.Y.S.2d, at p. 839, 313 N.E.2d, at p. 325, Supra.)
Our study of the record reveals that petitioner, then president of the Greenburgh Police Association an organization comprised of members of the police force and formed to promote the interests of its members initiated a campaign to oppose the re-election of Anthony Veteran, the town supervisor, by distributing a letter, dated October 20, 1975, to his fellow officers. This correspondence contained the following language:
One day thereafter, on October 21, petitioner sent out a letter informing his fellow officers that "70% Of you gave a clear cut mandate to get involved to oppose Supervisor Anthony Veteran." This letter went on to state:
Petitioner's personal stake in the effort to displace Veteran became readily apparent at a general meeting of the police association held on October 23. The minutes reveal that in response to a motion that the association may not expend any further sums to support or oppose any political candidate, petitioner stated that "he felt strongly about this issue and if necessary * * * would waive his $4,000 retirement benefit from the association and donate it for this action."
Sometime after the October 23 meeting, with the impending election only a few days off, a four-page letter, signed by petitioner as president of the police association, was mailed to the residents of the Town of Greenburgh. This letter, printed on police association stationery with the shield of the association prominently displayed, is in the form of a series of statements delineated as "facts", and reference is continually made to police officers of the Town of Greenburgh. It charges Veteran with conducting "slur campaigns" against Greenburgh police officers ("corruption, malfeasance, and misconduct by public officials and police are (Veteran's) campaign slogans"), and states, as fact, that Veteran's "political interference in the police department operation caused crime to rise 47% In the first quarter of 1975". This letter further charges Veteran with padding the payroll with political appointments to the detriment of the police department and with attempting "to destroy the Town of Greenburgh, its people and its police", and concludes, "(w)e must rid our Town of this cancer (Veteran)."
In light of this evidence, we think it abundantly clear that there was indeed a rational basis to support the Board's findings that the petitioner was the moving force behind the decision of the police association "to become involved in 'political activity' " and, also, that the correspondence distributed by petitioner "showed the use of his official power as a police officer directly in aid of, or against, a candidate for political office, and that (petitioner) became a partisan against a candidate, and that ordinary persons exercising ordinary common sense would clearly understand the import and the implication of his acts." By printing the letter distributed to the town residents on police association stationery with the shield of the Association Prominently displayed and by labeling the same as "An Important Message from your Police Association", it is the inescapable conclusion that such letter, signed by petitioner, both embodied and reflected the full strength and power of police authority. It is exactly this type of conduct, namely utilizing one's status as a police officer as the vehicle through which to...
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Purdy v. Town of Greenburgh
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