Opinion
December 20, 1993
Adjudged that the determination is annulled, on the law, without costs or disbursements, and the matter is remitted to the New York State Division of Human Rights for the issuance of a new determination by an impartial arbiter in accordance herewith.
Throughout the instant litigation, Margarita Rosa's name was featured on various documents, transcripts, hearing notices, etc., as General Counsel for the New York State Division of Human Rights (hereinafter the SDHR), which appeared on behalf of the complainant. In consequence, she may not thereafter decide the case as Commissioner of the SDHR without presenting "at least an appearance of unfairness" (Matter of General Motors Corp. v Rosa, 82 N.Y.2d 183, 188, revg 187 A.D.2d 960; see also, Matter of City of Rochester, 208 N.Y. 188; Matter of Beer Garden v New York State Liq. Auth., 171 A.D.2d 565, mod 79 N.Y.2d 266; Matter of Bayside Bowling Recreation Ctr. v New York State Liq. Auth., 171 A.D.2d 576, mod on other grounds 79 N.Y.2d 266; Adika v Corbisiero, 154 A.D.2d 299, 300-301; Matter of Washington County Cease v Persico, 99 A.D.2d 321, 329, affd 64 N.Y.2d 923; Judiciary Law § 14). Moreover, the "Rule of Necessity" does not apply, as Commissioner Rosa could have designated a subordinate to issue a decision that was impartial in appearance as well as in fact (Matter of General Motors Corp. v Rosa, supra; see also, Executive Law § 295; Public Officers Law § 9; Matter of City of Rochester, supra, at 195; State Div. of Human Rights v New York Roadrunners Club, 101 Misc.2d 239, 242; cf., Matter of Morgenthau v Cooke, 56 N.Y.2d 24).
There is no need to reopen the hearing, however, as the record at bar is facially complete (cf., Matter of Farley v New York State Dept. of Civ. Serv., 142 A.D.2d 783). We direct that, on remittitur, the Commissioner's surrogate reassess the evidence in the light of the factors which the United States Supreme Court ruled were deserving of consideration in School Bd. v Arline ( 480 U.S. 273).
We note that the Commissioner may not, as a matter of law, direct the County Commissioner of Hospitals to appoint Doe to "the next available" pharmacy position, because the SDHR may not usurp an appointing official's power to fill civil service posts (see, City of Schenectady v State Div. of Human Rights, 37 N.Y.2d 421; Matter of New York State Dept. of Mental Hygiene v State Div. of Human Rights, 103 A.D.2d 546, affd 66 N.Y.2d 752; State Div. of Human Rights v Human Rights Commn., 79 A.D.2d 181; State Div. of Human Rights v County of Oswego, 62 A.D.2d 1151). The record establishes that Doe had never been formally hired, and the Commissioner cannot "reinstate" him in a job that he had not formerly possessed, nor put him in a better position than he had enjoyed before the alleged discrimination occurred (cf., Matter of State Div. of Human Rights v County of Onondaga Sheriff's Dept., 71 N.Y.2d 623; Executive Law § 297 [c]). O'Brien, J.P., Copertino, Pizzuto and Santucci, JJ., concur.