| Matter of Rauschmeier v Village of Johnson City |
| 2012 NY Slip Op 00158 [91 AD3d 1080] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Robert J. Rauschmeier, Petitioner, v Village ofJohnson City et al., Respondents. |
—[*1] Petrone & Petrone, P.C., Syracuse (David M. Block of counsel), for Village of Johnson City,respondent. Coughlin & Gerhart, L.L.P., Endicott (Paul J. Sweeney of counsel), for Dennis Hannon,respondent.
Kavanagh, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Broome County) to review a determination of respondent Mayorof the Village of Johnson City which terminated petitioner's employment with respondent Villageof Johnson City.
Petitioner was a firefighter with five years of service with the Village of Johnson City FireDepartment when, in April 2009, while off-duty, he was observed by neighbors masturbating ashe stood naked before an open bedroom window in his second floor apartment. After petitionerwas arrested and charged with public lewdness, respondent Village of Johnson City suspendedhim and commenced a disciplinary action pursuant to Civil Service Law § 75 [*2]charging him with misconduct.[FN1] Following a hearing, the Hearing Officer recommended that petitioner be found not guilty ofmisconduct and be reinstated to his position with full back pay, benefits and seniority. Uponreview, respondent Dennis Hannon, the Mayor of the Village, with support of the Village Boardof Trustees (hereinafter Board), rejected the Hearing Officer's recommendation, found petitionerguilty of misconduct and directed that he be immediately terminated from his position.
Petitioner commenced this CPLR article 78 proceeding seeking, among other things, anannulment of the penalty imposed by Hannon and the Board. Hannon moved to dismiss thepetition and Supreme Court granted that part of the motion that sought dismissal of petitioner'sclaim that Hannon lacked the legal authority to review and reject the Hearing Officer'srecommendation. The court transferred to this Court the issue as to whether Hannon's decisionrejecting the Hearing Officer's recommendation was supported by substantial evidence(see CPLR 7804 [g]).
Initially, petitioner claims that Hannon was not authorized to review the Hearing Officer'sdetermination and acted outside of his legal authority by rejecting it. However, Civil Service Law§ 75 (2) provides that an employee disciplinary proceeding shall be conducted "by theofficer 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."Where such a designation is made, that person shall make a recommendation which will then "bereferred to such officer or body for review and decision" (Civil Service Law § 75[2] [emphasis added]; accord Matter ofGomez v Stout, 13 NY3d 182, 186 [2009]). Petitioner claims that departmental rules donot authorize a review of the disciplinary determination made by an independent hearing officerafter a hearing and require that the Hearing Officer's recommendation be adopted by the Village.We do not agree. The department rules, in effect when petitioner was charged with misconduct,expressly provide that the governing body—the Board—was entitled to reviewdepartmental disciplinary actions.[FN2] Furthermore, when Hannon conducted his review, he was Mayor of the Village and, as such, amember of the Board. In addition, as previously noted, the Board ultimately endorsed hisdecision terminating petitioner.[FN3] Therefore, Supreme Court properly dismissed this part of the petition.
As for Hannon's decision rejecting the Hearing Officer's recommendation, our review of sucha determination is limited to whether it is supported by substantial evidence (see Matter of Ridge Rd. Fire Dist. vSchiano, 16 NY3d 494, 498 [2011]; Matter of Wilson v City of White Plains, 95NY2d 783, 784-785 [2000]; Matter ofLory v County of Washington, 77 AD3d 1265, 1266 [2010]; Matter of Longton v Village ofCorinth, 57 AD3d 1273, 1274 [2008], lv denied 13 [*3]NY3d 709 [2009]). In that regard, a reviewing authority, when itrejects a disciplinary recommendation made by a hearing officer after a hearing, must set forth inits decision findings of fact based on competent proof contained in the record and then employthose findings to arrive at conclusions that are supported by substantial evidence (see Matterof Simpson v Wolansky, 38 NY2d 391, 396 [1975]; Matter of Miller v State of NewYork Dept. of Taxation & Fin., 263 AD2d 604, 604-605 [1999]; Matter of Close vHammond, 166 AD2d 845, 846 [1990]). Substantial evidence has been defined as "relevantproof [that] a reasonable mind may accept as adequate to support a conclusion or ultimate fact"(Matter of Ridge Rd. Fire Dist. v Schiano, 16 NY3d at 499), and is satisfied with " 'lessthan a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonabledoubt' " (id., quoting 300 Gramatan Ave. Assoc. v State Div. of Human Rights,45 NY2d 176, 180-181 [1978]). Also, substantial evidence may be based on inferences drawnfrom competent proof produced at a hearing that are " 'reasonable and plausible, not necessarilythe most probable' " (Matter of Miller v DeBuono, 90 NY2d 783, 793 [1997], quotingBorchers and Markell, New York State Administrative Procedure and Practice § 3.12, at51 [1995]). Here, for reasons that follow, we are of the view that while Hannon made certainfactual findings, they were not borne out by the record, and his conclusion that petitionerintended to be seen by others when he engaged in this lewd conduct was not supported bysubstantial evidence.
Initially, we note that all of the parties to this proceeding agree that petitioner could only befound guilty of misconduct if he engaged in lewd conduct under circumstances establishing thathe intended to be seen by members of the public (see Penal Law § 245.00).Petitioner was the only witness to the event to testify at the hearing, and he denied that he everintended his conduct to be witnessed by others. He testified that when he was observed by hisneighbors, he was alone in his second floor apartment watching a pornographic program standingin front of a television located some two feet from the bedroom window. Petitioner testifiedwithout contradiction that once he realized that he had been seen by others, he immediatelyceased this activity and, shortly thereafter, sought to apologize to his neighbors for his conduct.Petitioner also noted that he cooperated fully in the investigation conducted by the police andprovided them with a complete statement regarding what had transpired, as well as access to hisapartment.
The only evidence introduced at the hearing that took issue with petitioner's contention thathe did not intend to be seen was an opinion offered by the arresting officer that was basedentirely on statements made by third parties, none of whom testified at the hearing. Moreimportantly, no evidence was introduced that any of the eyewitnesses, when they describedpetitioner's conduct, stated that they believed he wanted to be seen when he was observedstanding near his bedroom window. Also, no evidence was produced at the hearing that petitionerdid anything when in the vicinity of his bedroom window that sought to draw attention to himselfor insure that others witnessed his lewd conduct.
Hannon, in rejecting the Hearing Officer's recommendation, referred to testimony of certainwitnesses given at the hearing, but did not specify what in their testimony supports hisconclusion that petitioner, when he engaged in this lewd conduct, intended to be seen by others.Instead, Hannon based his conclusion primarily on the fact that petitioner, when observed by hisneighbors, was standing in the vicinity of an open window in his second floor apartment. In ourview, this fact alone in this particular circumstance does not provide substantial evidence tosupport the conclusion that petitioner intended that his conduct be subject to public view. More isrequired, especially since the other evidence introduced at the hearing—all of which isuncontradicted and not in dispute—supports the Hearing Officer's determination thatpetitioner [*4]did not intend to be seen by his neighbors when heengaged in this conduct. As such, Hannon's conclusion to the contrary was not supported bysubstantial evidence, and his determination must be annulled. Given this finding, petitioner mustbe reinstated to his position with full back pay and benefits from the time of his suspension.
Mercure, A.P.J., Rose, Lahtinen and McCarthy, JJ., concur. Adjudged that the determinationis annulled, without costs, petition granted and petitioner is reinstated to his position with fullback pay.
Footnote 1: The criminal charge againstpetitioner was adjourned in contemplation of dismissal and ultimately dismissed.
Footnote 2: Rule 16.4.1 provides that"[f]inal disciplinary authority and responsibility rests with the Chief of [the] Fire [Department]and the Governing Body."
Footnote 3: When this hearing was held andHannon conducted his review, the position of Fire Chief was vacant. However, it is undisputedthat the Fire Chief was subordinate to Hannon and the Board and required to report to it.