Opinion
12212/04.
Decided October 27, 2006.
Jonathan Lovett, Esq., Lovett Gould White Plains, NY, Attorneys for Petitioner.
Scott M. Karson, Esq., Lamb Barnosky, LLP, Melville, NY, Attorneys For Respondents.
TERMINATING GOVERNMENTAL EMPLOYEES: THE RULE OF NECESSITY
The Petitioner, Jean McComb ["McComb")], moved pursuant to C.P.L.R. Article 78 for an order and judgement declaring illegal, ultra vires, null and void the following actions on the part of the Respondents: (1) the disciplinary charges preferred against McComb, (2) the appointment of the Hearing Officer, (3) the delegation of decision-making authority, (4) the ultimate determination of the disciplinary charges, and (5) the termination of McComb's employment. McComb seeks retroactive reinstatement to her position as the Deputy Budget Director of the City of White Plains, New York, along with back pay and costs.
After carefully considering McComb's Notice of Petition and Verified Petition, Reply Affirmation of Jonathan Lovett and Reply Affidavit of Jean McComb and Memorandum of Law and Reply Memorandum of Law and the Verified Answer of Respondents Anne Reasoner ["Reasoner"], Joseph M. Delfino, Jr. ["the Mayor"] and the City of White Plains ["the City"] together with the Affidavits of Joseph M. Delfino, Jr. and George Gretsas and Memorandum of Law the Court is now prepared to render its Decision.
Notice of Petition dated August 9, 2004 ["The Notice"] and Verified Petition dated August 9, 2004 ["Verified Petition"].
Reply Affirmation of Jonathan Lovett dated August 16, 2006 ["Lovett Aff."].
Reply Affidavit of Jean McComb sworn to August 14, 2006 ["McComb Aff."].
Petitioner's Memorandum of Law dated August 9, 2004 ["P. Memo."].
Petitioner's Reply Memorandum of Law dated August 15, 2006 ["P. Reply Memo."].
Affidavit if Joseph M. Delfino, Jr., sworn to July 7, 2006 ["Delfino Aff."].
Affidavit of George Gretsas sworn to July 5, 2006 ["Gretsas Aff."].
Memorandum of Law of Respondents Anne Reasoner, Joseph M. Delfino and The City of White Plains dated July 13, 2006 ["R. Memo."].
FACTUAL BACKGROUND The Disciplinary Charges
On May 16, 2002, the Mayor preferred disciplinary charges against McComb, pursuant to the Civil Service Law Section 75. The charges against McComb consisted of two counts of insubordination and/or misconduct and two counts of neglect of duty and/or incompetence to perform duty. The charges involved misconduct that included (1) insolent and/or disrespectful behavior toward supervisors and colleagues for several incidents occurring from January 2001 through February 2002, (2) failure to follow directives from supervisors for the period of March 2001 through February 2002, and (3) failure to perform job duties in an appropriate manner. The Suspension
R. Memo. at p. 3.
Upon being charged McComb was suspended without pay for a period of 30 days in accordance with Civil Service Law Section 75(3). Following the expiration of the 30-day suspension period without pay, McComb's suspension continued with pay.
Verified Petition at Ex. 2.
The Disciplinary Hearing
On May 16, 2002, pursuant to Civil Service Law Section 75(2), the Mayor designated David Stein ["Stein"] to be the Hearing Officer in the disciplinary proceeding against McComb. On July 17, 2002, the disciplinary hearing was commenced. After six days of hearings, the City completed its case against McComb on September 11, 2002.
Verified Petition at Ex. 3.
Jurisdictionally Challenged
At the beginning of McComb's case in chief, her counsel made a motion to dismiss the charges on the grounds they were jurisdictionally defective.
The First Article 78 Petition
On December 28, 2002, Stein denied McComb's motion to dismiss the charges. On January 3, 2003, McComb filed an Article 78 petition with this Court, challenging Stein's designation as hearing officer and the Mayor's authority to prefer disciplinary charges. This Court dismissed the petition as premature [ Matter of McComb v. Delfino, New York Law Journal, April 8, 2003, p. 23, col. 5 (West. Sup.) ("It is clear . . . that there has not been a final decision of the merits of this jurisdictional argument. This is also true regarding the merits of the charges against Petitioner since the hearing officer has not yet submitted any recommendations to the City of White Plains . . . Petitioner's challenge as to the validity of the charges against her is premature, and therefore it may not be challenged through an Article 78 proceeding")].
Independent Arbitrator Appointed
Upon completion of the disciplinary proceeding against McComb, Stein rendered a report and recommendations to the Mayor dated January 2, 2004. The Mayor then delegated and assigned the full power and authority to consider and review Stein's report and recommendations to Martin Scheinman, Esq. ["Scheinman"], an independent arbitrator.
Verified Petition at Ex. 4.
Findings Of Insubordination, Misconduct Neglect Of Duty
Scheinman reviewed the entire record of the disciplinary hearing, and issued a Final and Binding Determination on July 23, 2004, finding McComb guilty of three of the four charges preferred against her [two charges of insubordination and misconduct and one charge of neglect of duty and incompetence].
Employment Terminated
McComb's employment as the City's Deputy Budget Director was then terminated on August 2, 2004. The Second Article 78 Petition
Verified Petition at Ex. 6.
Following the termination of her employment, McComb commenced the instant Article 78 proceeding.
The Motion To Dismiss
By Decision and Order dated January 21, 2005, this Court granted the motion of the City, the Mayor and Reasoner pursuant to CPLR 3211 to dismiss the petition in that it failed to state a cause of action [See Matter of McComb v. Reasoner, 6 Misc 3d 1012, 800 NYS2d 349 (West. Sup. 2005)].
The Second Department Decision
McComb appealed to the Appellate Division, Second Department, from this Court's Order and in its May 16, 2006 Decision and Order the Appellate Division [See Matter of McComb v. Reasoner, 29 AD3d 795, 815 NYS2d 665 (2nd Dept. 2006)] affirmed this Court's dismissal of the First, Fifth, Seventh, and Ninth causes of action pleaded in the Petition and affirming the lawfulness of the Mayor's preferral of charges against McComb and her ensuing suspension. However, the Appellate Division modified this Court's Decision and Order by reinstating the Second, Third, Fourth, Sixth, Eighth, Tenth, Eleventh, and Twelfth causes of action, involving the Mayor's designations of Stein and Scheinman. The Appellate Division remitted the matter to this Court to permit the Respondents to file their answer and for further proceedings. This Court is now called upon to determine the Petitioner's surviving causes of action on the merits.
The Mayor's Designation Of Stein
Civil Service Law Section 75(2) states, in pertinent part, ". . . The hearing upon such charges shall be held 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."
Herein, the Mayor was neither "the officer or body having the power to remove" nor was he "a deputy or other person designated by such officer or body in writing for that purpose". Pursuant to the provisions of the White Plains City Code, Article II, section 8, the authority to remove, which is a function of the power to appoint [See e.g., Matter of Correia v. Incorporated Village of Northport, 12 AD3d 599, 600, 785 NYS2d 483 (2nd Dept. 2006); Bishopp v. Village of Spring Valley, 213 AD2d 441, 624 NYS2d 618 (2nd Dept. 1995); Matter of Waters v. City of Glen Cove, 181 AD2d 783, 580 NYS2d 796 (2nd Dept. 1992) was not specifically designated to anyone by either Eileen Earl ["Earl"], the Budget Director, or by Reasoner, the Deputy Budget Director, both of whom held that authority. Although the record indicates that Earl may have been unavailable to designate the hearing officer, there is nothing in the record that would lead this Court to conclude that Reasoner was unavailable.
Budget Director Earl Frightened Unavailable
The evidence in the record is clear that Earl felt so threatened and intimidated by McComb that she was genuinely afraid for her personal safety, especially, if she put her name on any formal papers having to do with the disciplinary process. Apparently, Earl had expressed consistent concerns about her safety vis-a-vis McComb as far back as the year 2000. Earl made demands of the City that it do everything within its power to protect her in an otherwise unsafe workplace due to McComb's threats against her. According to the Mayor, Earl's retirement from her position as the City's Budget Director [which occurred sometime after the termination of McComb's employment] was hastened by health problems related to the stresses and fear caused by McComb's conduct and her having to testify at McComb's hearing. The Log
Verified Petition; Delfino Aff. at para. 13; Gretsas Aff. at paras. 13-14.
Verified Petition; Delfino Aff. at para. 16.
Due to Earl's continued fear of McComb she refused the City's request that she provide an affidavit in connection with the instant matter.
George Gretsas, the Mayor's Confidential Executive Officer, stated that he recalled seeing a copy of a log kept by Earl describing her interactions with McComb from March 2000 to May 2000. This log described many examples of McComb's "anger and abusive behavior" towards, and threats and intimidation against, Earl and her co-workers.
Verified Petition; Gretsas Aff. at paras. 18-20.
Extreme Agitation
According to Gretsas' review of Earl's Log, McComb's anger exhibited itself in the form of "extreme agitation, upset, belligerence, insubordinate behavior and shouting obscenities and curses (March 6), . . . screaming, cursing and saying that she wanted to get a gun and shoot 'two co-workers and that she couldn't wait to see their blood spattered over the walls' (March 28)". . . . In addition the Log included instances of Earl's reactions to McComb's behavior, such as 'going home and becoming sick' (March 28); being too sick to go to work on time (March 29); and leaving work early to avoid being alone with McComb (May 4 and 12). Escalating Pattern Of Anger Abusive Behavior
Verified Petition; Gretsas Aff. at para. 19.
Verified Petition; Gretsas Aff. at para. 20.
According to Gretsas, Earl wrote a memorandum to City Corporation Counsel Edward Dunphy, dated April 17, 2000, in which she stated, among other things, that "she was writing at the suggestion of [her] physician and two counselors', that she had for some time . . . been trying to deal with Jean [McComb's] angry and abusive behavior towards me in the office. I have been subjected to an escalating pattern of anger and abusive behavior that includes obscene language, bodily threats and overt violence such as the throwing of pencils, books and computer runs; on one occasion she restrained me from leaving my office' . . . McComb's behavior had become so abusive and violent, that . . . I feared for my well-being and safety'". . . .
Verified Petition; Gretsas Aff. at para. 21.
Based on these examples of emotional abuse by and intense fear of, McComb, Earl was not available to designate the Hearing Officer.
Chief Deputy Budget Director Reasoner Was Available
Gretsas also observed that "[McComb] also regularly challenged Reasoner with regard to work-related decisions made by her. As a result, the relationship between McComb and Reasoner had deteriorated to the point where they could no longer work productively together, resulting in McComb being assigned to work on a special project within the Finance Department.
Verified Petition; Gretsas Aff. at para. 34.
"However, and notwithstanding a deteriorating work relationship between McComb and Reasoner, no credible evidence has been presented which would support a finding that Reasoner was unavailable. Hence, Reasoner should have been the person to designate Hearing Officer Stein and not the Mayor.
Stein Had No Authority To Conduct Disciplinary Hearing
It is readily apparent that there was no written delegation by the appropriate authority [i.e., Reasoner] to hear McComb's disciplinary case. Jurisdiction was thus lacking and Stein had no authority to either conduct the disciplinary hearing or to make a report and recommendation regarding his "findings".
The Mayor's Appointment Of Scheinman
Regarding the determination with respect to an employee's [McComb's] status, the applicable statute required that the determination be made by the officer who has the authority to remove the employee. Civil Service Law Section 75(2) states, in pertinent part, ". . . In case a deputy or other person is so designated, he shall, for the purpose of such hearing, be vested with all the powers of such officer or body and shall make a record of such hearing which shall, with his recommendations, be referred to such officer or body for review and decision." [Emphasis added] [See e.g., Matter of Martin v. Platt, 191 AD2d 758, 759, 594 NYS2d 398 (3rd Dept. 1993); Matter of Sassone v. New York State Thruway Auth., 171 AD2d 308, 310, 576 NYS2d 384 (3rd Dept. 1991)].
The Authority To Remove Employees
Under most circumstances, the authority to remove an employee may not be delegated [See e.g., Matter of Simpson v. Wolansky, 38 NY2d 391, 394, 380 NYS2d 630 (1975)]. However, when there exists a situation where the official with the authority is "personally involved in the proceedings by preferring the charges at issue and testifying at the hearing, or otherwise involving himself extensively in the proceedings "[ Matter of McComb, 29 AD3d 795, 815 NYS2d 665 (2nd Dept. 2006)] that official is acting improperly by rendering the final determination [See e.g., Matter of Correia v. Incorporated Village of Northport, 12 AD3d 599, 600, 785 NYS2d 483 (2nd Dept. 2004); Matter of Pryor v. O'Donnell, 262 AD2d 648, 693 NYS2d 187 (2nd Dept. 1999); Matter of DiMattina v. LaBua, 262 AD2d 409, 410, 692 NYS2d 410 (2nd Dept. 1999); Matter of Stein v. County of Rockland, 259 AD2d 552, 553-554, 686 NYS2d 460 (2nd Dept. 1999); Matter of Brundage v. Yonkers Parking Authority, 220 AD2d 411, 631 NYS2d 883 (2nd Dept. 1995); Matter of Lowy v. Carter, 210 AD2d 408, 409, 620 NYS2d 103 (2nd Dept. 1994); Matter of Wayering v. County of St. Lawrence, 140 AD2d 838, 840, 528 NYS2d 223 (3rd Dept. 1988); Matter of Cafaro v. Pederson, 123 AD2d 860, 507 NYS2d 645 (2nd Dept. 1986); Matter of Edgar v. Dowling, 96 AD2d 510, 511, 464 NYS2d 992 (2nd Dept. 1983); Matter of Devany v. Rice, 84 AD2d 565, 443 NYS2d 263 (2nd Dept. 1981); Sinicropi v. Milone, 80 AD2d 609, 643 NYS2d 263 (2nd Dept. 1981); Matter of O'Reilly v. Pisani, 79 AD2d 973, 974, 436 NYS2d 996 (2nd Dept. 1981)].
Earl And Reasoner Unavailable
It was Earl and Reasoner who had actual authority with respect to McComb's employment. Yet, as to the determination of McComb's employment status, they were both unavailable in light of their testimony at McComb's disciplinary hearing. The Mayor, however, was not similarly unavailable, not having testified at the hearing, despite the fact that he preferred the charges [See e.g., Matter of Gioe v. Board of Education of the E. Williston School District, 126 AD2d 723, 723-724, 511 NYS2d 128 (2nd Dept. 1987); Matter of Joseph Stolzenberg, 198 AD2d 506, 604 NYS2d 198 (2nd Dept. 1993); Matter of Brundage v. Yonkers Parking Authority, supra)].
The Mayor Believed He Was Not Impartial
It is the Mayor's position that he believed that he could not have impartially reviewed the Hearing Officer's decision ["26. There is no doubt that I wanted McComb terminated for her actions, and that I had reached that conclusion early on in the disciplinary process, perhaps even as early as when I was advised that I had to inject myself into the process by signing the charges and designating the hearing officer. 27. I recall that, prior to issuing my letter to Scheinman, Gretsas and I discussed the fact that I had already been sued by McComb (see Matter of McComb v. Delfino, et al., Westchester Sup. Ct. Index No. 00432/03), and had been called by McComb as a witness at her hearing, during which I had testified that I discussed the status of the then pending case with counsel on at least a dozen occasions and had also reviewed the transcript of the hearing in preparation for my testimony. 28. Even before this, Gretsas and I had discussions in which I expressed my displeasure that I had been forced, by virtue of Earl's and Reasoner's unwillingness to sign any papers pertaining to the charges, to do so myself and thus become personally involved with McComb's issues. 29. I also engaged Gretsas in discussions while the hearing was on-going in which I wanted to know why the City could not just fire McComb, who was a non-union managerial/confidential employee, and instead had to expend my and the City's time, effort and (in the City's case) money in order to attempt to do so.". The Delegation Of Authority To Render Determination
Verified Petition; Delfino Aff. at paras. 26-29.
The necessity that the authority to render a determination be delegated in certain circumstances does not permit unlimited discretion in choosing the identity of the delegee [See Matter of Jean McComb, 29 AD3d 795, 815 NYS2d 665 (2nd Dept 2006)] (" Inherent in the statutory command that the decision be made by the official with authority to remove (see Civil Service Law Section 75) is the requirement that there be some connection between the person by whom the employment decision is made and the governmental employment at issue")]. The Second Department has held delegations to be proper when made to a municipality's personnel officer or to some other individual authorized to act in the absence of the official with the actual authority to remove [See e.g., Matter of Chisolm v. Copeland, 29 AD3d 575, 813 NYS2d 667 (2nd Dept. 2006) ("The Commissioner of Management Services (hereinafter the Commissioner) properly disqualified himself from reviewing the recommendation of the hearing officer and acting on any of the charges because of his personal involvement in the case * * * citations omitted * * *. Under the circumstances presented, the Commissioner appointed an impartial third party — the City Clerk of the City of Mount Vernon — to review the determination of the hearing officer and render a final determination . . ."); Matter of DiMattina v. LaBua, supra; Matter of Reed v. Town of Huntington, 186 AD2d 745, 589 NYS2d 58 (2nd Dept. 1992)].
The Rule Of Necessity
The Mayor was not an impartial official in this matter. He was, admittedly, biased, and, indeed, wanted McComb fired. However, that bias does not necessarily excuse him from the duty of making the final determination in this matter. The delegation must be to "a duly qualified individual authorized to act during the absence or inability of the [disqualified decision-maker] and not previously involved in the proceedings or charges" [ Matter of Martin v. Platt, supra, at 759-760]. "Only when there is no such official and one cannot be appointed, and thus no such delegation is possible, does the rule of necessity apply, permitting an otherwise partial official to make the final determination" [ Matter of Jean McComb, 29 AD3d 795, 815 NYS2d 665 (2nd Dept. 2006)].
Scheinman Not Duly Qualified
Certainly, Scheinman, as an independent arbitrator with no connection "with the governmental employment at issue" was not "a duly qualified individual authorized to act during the absence or inability of the [disqualified decision-maker] and not previously involved in the proceedings or charges" [ Matter of Martin v. Platt, supra, at 759-760]. Since the Mayor believed he was biased and not impartial, it was the Mayor's responsibility to try to delegate the decision-making authority to either the City's personnel officer, the City Clerk, or to some other individual authorized to act in his absence, pursuant to Matter of Chisolm, supra, Matter of Dimattina, supra, and Matter of Reed, supra.
The Buck Stops Here
If no such person was available, then the rule of necessity would apply and the Mayor would have had to make the final determination himself.
McComb's Termination Null And Void
The Mayor's appointment of Stein to serve as the Hearing Officer to determine the disciplinary charges, the Mayor's delegation to Scheinman of the decision making authority with respect to the charges filed against McComb, and Scheinman's final determination of those charges and subsequent termination of McComb's employment, are all found to be illegal, ultra vires, null and void. The termination of McComb is vacated without prejudice to the City to appoint a new Hearing Officer for the purpose of conducting a new disciplinary hearing. McComb is awarded back pay from the date of her termination along with any benefits she may have been entitled to.
The parties are to submit Orders on Notice.
This constitutes the Decision, Order and Judgement of this Court.