Rauschmeier v. Village of Johnson City
| Decision Date | 12 January 2012 |
| Citation | 937 N.Y.S.2d 373,33 IER Cases 533,2012 N.Y. Slip Op. 00158,91 A.D.3d 1080 |
| Parties | In the Matter of Robert J. RAUSCHMEIER, Petitioner, v. VILLAGE OF JOHNSON CITY et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
2012 N.Y. Slip Op. 00158
33 IER Cases 533
91 A.D.3d 1080
937 N.Y.S.2d 373
In the Matter of Robert J. RAUSCHMEIER, Petitioner,
v.
VILLAGE OF JOHNSON CITY et al., Respondents.
Supreme Court, Appellate Division, Third Department, New York.
Jan. 12, 2012.
[937 N.Y.S.2d 374]
Hinman, Howard & Kattell, L.L.P., Binghamton (Paul T. Sheppard of counsel), for petitioner.
Petrone & Petrone, P.C., Syracuse (David M. Block of counsel), for Village of Johnson City, respondent.
Coughlin & Gerhart, L.L.P., Endicott (Paul J. Sweeney of counsel), for Dennis Hannon, respondent.Before: MERCURE, Acting P.J., ROSE, LAHTINEN, KAVANAGH and McCARTHY, JJ.
KAVANAGH, J.
[91 A.D.3d 1080] Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Broome County) to review a determination of respondent Mayor of the Village of Johnson City which terminated petitioner's employment with respondent Village of Johnson City.
Petitioner was a firefighter with five years of service with the Village of Johnson City Fire Department when, in April 2009, while off-duty, he was observed by neighbors masturbating as he stood naked before an open bedroom window in his second floor apartment. After petitioner was arrested and charged with public lewdness, respondent Village of Johnson City suspended him and commenced a disciplinary action pursuant to Civil Service Law § 75 charging him with misconduct.1 Following a hearing, the Hearing Officer recommended that petitioner be found not guilty of misconduct and be reinstated to his position with full back pay, benefits and seniority. Upon review, respondent Dennis Hannon, the Mayor of the Village, with support of the Village Board of Trustees (hereinafter Board), rejected the Hearing Officer's recommendation, found petitioner guilty of misconduct and directed that he be immediately terminated from his position.
Petitioner commenced this CPLR article 78 proceeding seeking, among other things, an annulment of the penalty imposed by Hannon and the Board. Hannon moved to dismiss the petition and Supreme Court granted that part of the motion that sought dismissal of petitioner's claim that Hannon lacked the legal authority to review and reject the Hearing Officer's recommendation. The court transferred to this Court the issue as to whether Hannon's decision rejecting the Hearing Officer's recommendation was supported by substantial evidence ( see CPLR 7804[g] ).
[91 A.D.3d 1081] Initially, petitioner claims that Hannon was not authorized to review the Hearing Officer's determination and acted outside of his legal authority by rejecting it. However, Civil Service Law § 75(2) provides that an employee disciplinary proceeding shall be conducted “by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose.” Where such a designation is made, that person shall make a
[937 N.Y.S.2d 375]
recommendation which will then “be referred to such officer or body for review and decision ” (Civil Service Law § 75[2] [emphasis added]; accord Matter of Gomez v. Stout, 13 N.Y.3d 182, 186, 889 N.Y.S.2d 509, 918 N.E.2d 99 [2009] ). Petitioner claims that departmental rules do not authorize a review of the disciplinary determination made by an independent hearing officer after a hearing and require that the Hearing Officer's recommendation be adopted by the Village. We do not agree. The department rules, in effect when petitioner was charged with misconduct, expressly provide that the governing body—the Board—was entitled to review departmental disciplinary actions. 2 Furthermore, when Hannon conducted his review, he was Mayor of the Village and, as such, a member of the Board. In addition, as previously noted, the Board ultimately endorsed his decision terminating petitioner.3 Therefore, Supreme Court properly dismissed this part of the petition.
As for Hannon's decision rejecting the Hearing Officer's recommendation, our...
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