Zlotnick v. City of Saratoga Springs

Decision Date26 November 2014
Docket Number518335
Citation2014 N.Y. Slip Op. 08289,997 N.Y.S.2d 809,122 A.D.3d 1210
PartiesIn the Matter of MARY M. ZLOTNICK, Petitioner, v. CITY OF SARATOGA SPRINGS et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Gleason Dunn Walsh & O'Shea, Albany (Mark T. Walsh of counsel), for petitioner.

Harris Beach, PLLC, Albany (Mark J. McCarthy of counsel), for respondents.



EGAN Jr., J.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Saratoga County) to review a determination of respondent Commissioner of Accounts for the City of Saratoga Springs which terminated petitioner's employment.

In December 2010, petitioner began working as a real property clerk for respondent City of Saratoga Springs Department of Accounts. Petitioner was assigned a series of administrative tasks that included taking phone calls from members of the public, wherein she was permitted to provide information and answer “basic questions” about the assessment or exemption process. After a few months in this position, petitioner developed concerns regarding the manner in which condominium owners residing in the City of Saratoga Springs, Saratoga County were being assessed; specifically, petitioner believed that a particular individual representing certain condominium owners was receiving preferential treatment from the City's Assistant Assessor, Anthony Popolizio, and was obtaining assessment reductions for her clients without going through a formal grievance process. Petitioner initially expressed her concerns to the City's Deputy Commissioner of Accounts, Sharon Kellner–Chille, who, in turn, contacted respondent Commissioner of Accounts for the City of Saratoga Springs, John P. Franck. The Commissioner then met with petitioner, explained the difficulties that respondent City of Saratoga Springs had experienced with condominium assessments in the past and advised her that the representative in question was participating in an informal—and entirely permissible—grievance process.1 Petitioner remained unpersuaded, however, and ultimately brought her suspicions regarding this procedure to, among others, the Saratoga County District Attorney and the Attorney General.

In June 2012, the Commissioner preferred disciplinary charges against petitioner, alleging that she had violated City policy by making personal use of the Internet during working hours, and suspended her for a period of one week. A hearing was held in August 2012 and, at the conclusion thereof, the Commissioner adopted the Hearing Officer's finding of guilt and imposed a one-week suspension and loss of pay—said penalty to be satisfied by the previously imposed suspension. During the course of that hearing, petitioner testified as to her ongoing concerns regarding the manner in which condominium assessments were being reduced. Upon reviewing a transcript of petitioner's testimony, the Commissioner again investigated petitioner's allegations and, in so doing, “looked at every [assessment] reduction from December 27, 2010 through mid August 2012 to [ascertain] if they were done properly.”

By letter dated August 24, 2012, petitioner was advised of the Commissioner's intention to take additional disciplinary action against her, and petitioner thereafter was provided with a notice of discipline setting forth five specifications of misconduct and/or insubordination. Petitioner was suspended for 30 days without pay and, following a lengthy hearing, the Hearing Officer issued a report sustaining three of the five preferred charges and recommended that petitioner be terminated from her employment. The Commissioner upheld the Hearing Officer's recommendation and terminated petitioner from her position, prompting petitioner to commence this CPLR article 78 proceeding to challenge that determination.

Petitioner initially contends that the charges set forth in the underlying notice of discipline were so vague as to deprive her of a fair hearing. As the Hearing Officer in this matter aptly observed, the notice of discipline and the subsequently furnished bill of particulars “could have been more illuminating.” That said, the notice of discipline and the individual charges at issue “need only be reasonably specific, in light of all the relevant circumstances[,] to apprise [petitioner] of the charges and enable ... her to adequately prepare a defense” (Matter of Rounds v. Town of Vestal, 15 A.D.3d 819, 822, 790 N.Y.S.2d 561 [2005] [internal quotation marks and citations omitted]; see Matter of Block v. Ambach, 73 N.Y.2d 323, 332–333, 540 N.Y.S.2d 6, 537 N.E.2d 181 [1989] ; Matter of McKenzie v. Board of Educ. of the City Sch. Dist. of Albany, 100 A.D.3d 1096, 1098, 952 N.Y.S.2d 860 [2012] ; Matter of Orens v. Novello, 307 A.D.2d 392, 392, 761 N.Y.S.2d 547 [2003], appeal dismissed 100 N.Y.2d 614, 767 N.Y.S.2d 395, 799 N.E.2d 618 [2003] ).

Here, in conjunction with the bill of particulars, respondents included copies of the newspaper articles and media reports relevant to charge No. 4, as well as that portion of the transcript of petitioner's August 2012 disciplinary hearing bearing upon the misconduct alleged in charge No. 2. Viewing the notice of discipline, the corresponding bill of particulars and the materials supplied therewith against the backdrop of petitioner's prior disciplinary proceeding, we are satisfied that petitioner was afforded adequate notice of the misconduct alleged with respect to the sustained specifications (charge Nos. 1, 2 and 4). Accordingly, this aspect of petitioner's due process claim must fail.

Petitioner next asserts that the Hearing Officer should have been disqualified for a myriad of reasons that generally fall under the heading of exhibiting bias or creating the appearance of impropriety. In this regard, [b]ecause hearing officers are presumed to be free from bias, an appearance of impropriety is insufficient to set aside an administrative determination; petitioner must provide factual support for [her] claim of bias and prove that the outcome flowed from that bias” (Matter of Compasso v. Sheriff of Sullivan County, 29 A.D.3d 1064, 1065, 814 N.Y.S.2d 773 [2006] ; see 10 NYCRR 51.17 [a]; Matter of Helmer v. New York State & Local Employees' Retirement Sys., 305 A.D.2d 949, 950, 761 N.Y.S.2d 124 [2003] ; Matter of Donlon v. Mills, 260 A.D.2d 971, 974, 689 N.Y.S.2d 260 [1999], lv. denied 94 N.Y.2d 752, 700 N.Y.S.2d 426, 722 N.E.2d 506 [1999] ). Based upon our review of the record as a whole, we do not find that petitioner made such a showing here.

To the extent that petitioner contends that the Hearing Officer should have been disqualified due to an alleged affiliation between the Hearing Officer's spouse and respondents' counsel, we note that petitioner did not seek disqualification upon this ground at the administrative hearing and, hence, this issue is unpreserved for our review (cf. 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, 890 N.Y.S.2d 447, 918 N.E.2d 962 [2009] ).2 In any event, the Commissioner averred that he selected the Hearing Officer based upon a recommendation from a local attorney and that he did not discuss the Hearing Officer's designation with “any attorney or representative” of the law firm representing respondents in this matter prior to making such designation.

Petitioner further argues that the Hearing Officer should have been disqualified based upon the fact that he presided over both of petitioner's disciplinary hearings. However, absent record evidence that the Hearing Officer may have prejudged the matter under review, “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” (Matter of Botsford v. Bertoni, 112 A.D.3d 1266, 1268, 977 N.Y.S.2d 497 [2013] ; see Matter of Compasso v. Sheriff of Sullivan County, 29 A.D.3d at 1065, 814 N.Y.S.2d 773 ). Here, a portion of the transcript from petitioner's August 2012 disciplinary hearing was admitted into evidence at petitioner's subsequent hearing, and the testimony contained therein was directly relevant to the allegations of misconduct set forth in charge No. 2 of the notice of discipline. Under these circumstances, the Hearing Officer's limited review of or reference to such testimony in arriving at his conclusion relative to charge No. 2 was entirely proper. More to the point, we find no support for petitioner's blanket assertion that the Hearing Officer otherwise—and improperly—referred to matters outside the record in rendering his determination as to guilt. To the extent that the record reflects that the Hearing Officer may have considered petitioner's overall employment record or the prior disciplinary proceeding in fashioning a penalty, we discern no impropriety in this regard (see Matter of McKenzie v. Board of Educ. of the City Sch. Dist. of Albany, 100 A.D.3d at 1098, 952 N.Y.S.2d 860 ). Petitioner's remaining allegations of bias are based upon a selective reading of the hearing transcript and find no factual support in the record.

We do, however, find merit to petitioner's claim that the Commissioner—having investigated petitioner's initial allegations of preferential assessment treatment, concluded that such allegations were unfounded, preferred the resulting charges of misconduct and insubordination against petitioner and testified at petitioner's disciplinary hearing in support of such charges—should have disqualified himself from reviewing the Hearing Officer's recommendation and rendering a final determination in this matter. Regardless of whether disciplinary charges are pursued in the judicial or administrative realm, [t]he participation of an independent, unbiased...

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3 cases
  • Bruso v. Clinton Cnty.
    • United States
    • New York Supreme Court — Appellate Division
    • May 5, 2016
    ...v. Sheriff of Sullivan County, 29 A.D.3d 1064, 1065, 814 N.Y.S.2d 773 [2006] ; accord Matter of Zlotnick v. City of Saratoga Springs, 122 A.D.3d 1210, 1212–1213, 997 N.Y.S.2d 809 [2014] ). Although the Hearing Officer presided over the hearing on the December 2012 charges, petitioner failed......
  • Bruso v. Cnty. of Clinton, 521848.
    • United States
    • New York Supreme Court — Appellate Division
    • May 5, 2016
    ...disqualified, a qualified individual to be designated by such officer or body (Civil Service Law § 75[2] ; see Matter of Zlotnick v. City of Saratoga Springs, 122 A.D.3d 1210, 1216, 997 N.Y.S.2d 809 [2014] ; Matter of Botsford v. Bertoni, 112 A.D.3d 1266, 1269, 977 N.Y.S.2d 497 [2013] ).2 A......
  • Berroa v. Fiala
    • United States
    • New York Supreme Court — Appellate Division
    • November 26, 2014
    ... ... Schneiderman, Attorney General, New York City (Matthew W. Grieco of counsel), for respondent.Before: PETERS, P.J., ... ...

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