Tinter v. Bd. of Trs. of the Pound Ridge Library Dist.

• Decision Date: 29 November 2017
• Docket Number: 2017–03832
• Citation: 155 A.D.3d 1054,66 N.Y.S.3d 526
• Parties: In the Matter of Marilyn TINTER, petitioner, v. BOARD OF TRUSTEES OF the POUND RIDGE LIBRARY DISTRICT, et al., respondents.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 1054

66 N.Y.S.3d 526

In the Matter of Marilyn TINTER, petitioner,

v.BOARD OF TRUSTEES OF the POUND RIDGE LIBRARY DISTRICT, et al., respondents.

2017–03832

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

Submitted October 24, 2017

November 29, 2017

Meyers Tersigni Feldman & Gray LLP, New York, N.Y. (Anthony L. Tersigni and Andrea Tersigni of counsel), for petitioner.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, VALERIE BRATHWAITE NELSON, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Pound Ridge Library District, dated September 26, 2016, which adopted the recommendation of a Hearing Officer, made after a hearing, finding the petitioner guilty of charges of misconduct and incompetence, and terminated her employment as the Director of the Pound Ridge Library.

ADJUDGED that the petition is granted, on the law, without costs or disbursements, to the extent that so much of the determination as found the petitioner guilty of charges one, three, six, seven, eight, nine, ten, and eleven and specifications six, seven, eight, and nine of charge two is annulled, those charges and specifications are dismissed, the penalty imposed is vacated, the petition is otherwise denied, the determination is otherwise confirmed, the proceeding is otherwise dismissed on the merits, and the matter is remitted to the Board of Trustees of the Pound Ridge Library District for a new consideration of the appropriate penalty to be imposed in accordance herewith, and the imposition of such a penalty thereafter.

The petitioner commenced this proceeding pursuant to CPLR article 78 to review a determination of the Board of Trustees of the Pound Ridge Library District (hereinafter the Board) adopting the findings of a Hearing Officer that the petitioner was guilty of certain charges of misconduct and incompetence, and terminating her employment. In an order dated April 3, 2017, the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7804(g).

Contrary to the petitioner's contention, the Board's minutes reflecting a resolution to appoint the Hearing Officer and a letter addressed to the Hearing Officer on Pound Ridge Library letterhead and signed by the Board's president, advising that the Hearing Officer had been designated to hold a hearing on the disciplinary charges preferred against the petitioner and on amendments or supplements to the charges as might thereafter be preferred, sufficiently documented the validity of the Hearing Officer's appointment and satisfied the relevant provisions of Civil Service Law § 75(2) (see Matter of McKenzie v. Board of Educ. of the City Sch. Dist. of Albany, 100 A.D.3d 1096, 1097–1098, 952 N.Y.S.2d 860 ; Matter of Perryman v. Village of Saranac Lake, 64 A.D.3d 830, 832–833, 881 N.Y.S.2d 693 ; Matter of Stafford v. Board of Educ. of Mohonasen Cent. School Dist., 61 A.D.3d 1259, 1259–1260, 877 N.Y.S.2d 503 ; Matter of Salley v. Hempstead School Dist., 121 A.D.2d 547, 548, 504 N.Y.S.2d 30 ; see also Matter of Ost v. Supervisor of Town of Woodstock, 251 A.D.2d 724, 726, 673 N.Y.S.2d 768 ).

Civil Service Law § 75(2) provides, inter alia, that in a case where a hearing officer is designated, he or she must "make a record of such hearing which shall, with his [or her] recommendations, be referred to [the officer or body having the power to remove the person against whom the charges were preferred] for review and decision." Individuals "who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges" (Matter of Baker v. Poughkeepsie City School Dist., 18 N.Y.3d 714, 718, 945 N.Y.S.2d 589, 968 N.E.2d 943 [internal quotation marks omitted] ). However, "[i]nvolvement in the disciplinary process does not automatically require recusal" ( id. at 717, 945 N.Y.S.2d 589, 968 N.E.2d 943 [internal quotation marks omitted]; see Matter of Birch v. County of Madison, 123 A.D.3d 1324, 1326, 999 N.Y.S.2d 256 ).

Here, the Board members who reviewed the recommendations of the Hearing Officer and acted on the charges were not so personally or extensively involved in the disciplinary process so as to compel the conclusion that they could not fairly consider the evidence and recommendation resulting from the hearing and, thus, that their recusal was necessary (see Matter of Dolan v. New Hyde Park Fire Dept., 137 A.D.3d 1026, 1028, 27 N.Y.S.3d 266 ; Matter of Birch v. County of Madison, 123 A.D.3d at 1326–1327, 999 N.Y.S.2d 256 ; cf. Matter of Baker v. Poughkeepsie City School Dist., 18 N.Y.3d at 716, 945 N.Y.S.2d 589, 968 N.E.2d 943 ).

Contrary to the petitioner's contention, the Hearing Officer's undisclosed participation in another matter involving the Board's counsel did not compel the Hearing Officer's disqualification (see Matter of Breton v. Thompson, 200 A.D.2d 923, 923, 607 N.Y.S.2d 435 ; cf. Matter of Romeo v. Union Free School Dist., No. 3, Town of Islip, 64 A.D.2d 664, 666, 407 N.Y.S.2d 513 ).

The petitioner's contention that the Board's determination should be annulled because the Board made no independent review of the record lacks merit. The Board had an opportunity to review the record, transcripts, exhibits, and post-hearing memorandum, and the petitioner failed to make any clear showing that the Board did not make an independent appraisal and did not reach an independent conclusion (see Matter of Bruso v. Clinton County, 139 A.D.3d 1169, 1171, 31 N.Y.S.3d 277 ; Matter of ...