Opinion
263 TP 17–01816
03-16-2018
In the Matter of Mark MARENTETTE, Petitioner, v. CITY OF CANANDAIGUA and John Goodwin, Assistant City Manager Appointing Authority, Respondents.
TREVETT CRISTO P.C., ROCHESTER (MICHAEL T. HARREN OF COUNSEL), FOR PETITIONER. SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR RESPONDENTS.
TREVETT CRISTO P.C., ROCHESTER (MICHAEL T. HARREN OF COUNSEL), FOR PETITIONER.
SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR RESPONDENTS.
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDER
Memorandum:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination finding him guilty of disciplinary charges and terminating his employment as Fire Chief for respondent City of Canandaigua (City) following a hearing pursuant to Civil Service Law § 75. The Hearing Officer found that petitioner committed acts of insubordination inasmuch as he repeatedly violated the directive of his superior, the City Manager, by making unauthorized entries on his subordinates' time sheets, and that petitioner committed acts of incompetence by authorizing the expenditure of public funds on several occasions in violation of the City's procurement policies. Although the Hearing Officer recommended that petitioner be demoted, respondents determined that termination was warranted given the gravity of the misconduct, petitioner's disciplinary record, previous unsuccessful attempts at remediation, and the loss of trust in petitioner.
We reject petitioner's contention that preponderance of the evidence is the applicable evidentiary standard in this case. It is well established that substantial evidence is generally the applicable evidentiary standard for disciplinary matters involving public employees under Civil Service Law § 75, and that due process requires application of the preponderance of the evidence standard only "when the penalty of dismissal is accompanied by some added stigma" ( Matter of Suitor v. Keller, 256 A.D.2d 1140, 1140, 684 N.Y.S.2d 454 [4th Dept. 1998] ; see Matter of Miller v. DeBuono, 90 N.Y.2d 783, 794, 666 N.Y.S.2d 548, 689 N.E.2d 518 [1997] ; Matter of Field v. Board of Educ., Yonkers Pub. Sch. Dist., 148 A.D.3d 702, 703, 49 N.Y.S.3d 472 [2d Dept. 2017] ; Matter of James v. Hoosick Falls Cent. Sch. Dist., 93 A.D.3d 1131, 1132–1133, 941 N.Y.S.2d 335 [3d Dept. 2012] ). Here, we conclude that no such stigma is present inasmuch as "[n]othing in the record suggests that, as a result of the termination of his employment as [Fire Chief] with the [City], the petitioner is [effectively] prohibited from obtaining future ... employment [as a firefighter or an officer of a fire department], or that he is subjected to a public registry of any sort" ( Matter of Lebron v. Village of Spring Val., 143 A.D.3d 720, 722, 39 N.Y.S.3d 43 [2d Dept. 2016] ; see Field, 148 A.D.3d at 703, 49 N.Y.S.3d 472 ; Suitor, 256 A.D.2d at 1140, 684 N.Y.S.2d 454 ; cf. Miller, 90 N.Y.2d at 791–794, 666 N.Y.S.2d 548, 689 N.E.2d 518 ).
Contrary to petitioner's further contention, the determination that he committed acts of insubordination and incompetence is supported by substantial evidence (see Matter of Gaffney v. Addison, 132 A.D.3d 1360, 1360–1361, 17 N.Y.S.3d 537 [4th Dept. 2015] ), i.e., by "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" ( 300 Gramatan Ave. Assoc. v. State Div. of Human Rights , 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ). Petitioner's exculpatory explanations for his conduct raised an issue of credibility that the Hearing Officer was entitled to resolve against him (see Gaffney, 132 A.D.3d at 1361, 17 N.Y.S.3d 537 ; Matter of Civil Serv. Empls. Assn., Local # 1000, AFSCME, AFL–CIO, by Local # 854 v. Tioga County, 288 A.D.2d 802, 804, 733 N.Y.S.2d 757 [3d Dept. 2001] ; Matter of Dinnocenzo v. Staniszewski, 270 A.D.2d 840, 841, 705 N.Y.S.2d 313 [4th Dept. 2000] ).
Finally, petitioner contends that termination of his employment was unjustified under the circumstances. "Our review of the penalty, however, is extremely limited; we do not have any ‘discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed’ " ( Matter of Oliver v. D'Amico , 151 A.D.3d 1614, 1618, 57 N.Y.S.3d 258 [4th Dept. 2017], quoting Matter of Kelly v. Safir , 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 [2001], rearg. denied 96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773 [2001] ). We conclude that the penalty of termination is not " ‘so disproportionate to the offense[s] as to be shocking to one's sense of fairness,’ " and thus does not constitute an abuse of discretion as a matter of law ( Kelly , 96 N.Y.2d at 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280 ), particularly in light of petitioner's conduct underlying the charges and his history of disciplinary infractions during his tenure as Fire Chief (see Matter of Short v. Nassau County Civ. Serv. Commn. , 45 N.Y.2d 721, 722–723, 408 N.Y.S.2d 471, 380 N.E.2d 298 [1978] ; Matter of Shafer v. Board of Fire Commr., Selkirk Fire Dist. , 107 A.D.3d 1229, 1231, 967 N.Y.S.2d 491 [3d Dept. 2013] ; Matter of Barhite v. Village of Medina , 23 A.D.3d 1114, 1115, 804 N.Y.S.2d 526 [4th Dept. 2005] ; Dinnocenzo , 270 A.D.2d at 840–841, 705 N.Y.S.2d 313 ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.