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Appointing authority disqualified from acting on the recommendation of hearing officer due to his personal involvement

Appointing authority disqualified from acting on the recommendations submitted by a disciplinary hearing officer as a result of his personal involvement in the disciplinary process
Matter of Prioleau v Nicoletti, 2008 NY Slip Op 06841, Decided on September 9, 2008, Appellate Division, Second Department

Joseph Nicoletti, Jr., the Commissioner of the White Plains Department of Public Works, adopted the findings and recommendation of a disciplinary hearing officer finding Assistant Sanitation Superintendent Jerry Prioleau guilty of misconduct and incompetence and terminated his employment with the agency.

The Appellate Division annulled the Commissioner?s decision and remitted the matter to him. The court directing that the Commissioner appoint new ?a duly-qualified, impartial decision-maker authorized to review the recommendation of the hearing officer.? This new determination is to be based on the ?original hearing record.?

The Court said that the Commissioner?s ?personal involvement in this matter,? including meeting with Prioleau and issuing an oral directive to him which later formed the basis for over 200 specifications of misconduct, as well as the fact that he preferred the disciplinary charges against Prioleau, required that he recuse himself from reviewing the findings and recommendation of the hearing officer and acting on any of the charges.

In Ernst v. Saratoga County, 234 A.D.2d 764, the Appellate Division said that ?persons 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,? citing a number of decisions including Matter of Lowy v Carter, 210 AD2d 408, Matter of Hicks v Fortier, 117 AD2d 930; and Matter of Ortiz v Lesser, 83 AD2d 663.?

In other cases courts have been more lenient of the appointing authority being involved in some aspect of the disciplinary process. For example, in Stanton v Board of Trustees, 550 NYS2d 16, the Appellate Division ruled that Stanton was not deprived of administrative due process even though members of the Board who voted to terminate Stanton also participated in the underlying investigation that lead to charges of misconduct being brought against her. ?(A)lthough a ?fair trial in a fair tribunal is a basic requirement of due process?,? the court said, ?... it has also been recognized that ?mere familiarity with the facts of a case gained by an agency in the performance of its statutory role does not disqualify a decision-maker.??

Full post as published by New York Public Personnel Law on September 16, 2008 (boomark / email).