| Matter of Perryman v Village of Saranac Lake |
| 2009 NY Slip Op 05660 [64 AD3d 830] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Donald G. Perryman, Petitioner, v Village ofSaranac Lake et al., Respondents. |
—[*1] Girvin & Ferlazzo, P.C., Albany (Christopher P. Langlois of counsel), forrespondents.
Stein, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Warren County) to review a determination of the Village of SaranacBoard of Trustees which terminated petitioner's employment as the Chief of Police of respondentVillage of Saranac Lake.
Petitioner, the Chief of Police of respondent Village of Saranac Lake, was suspended andcharged with misconduct and incompetence in accordance with Civil Service Law § 75.Thereafter, on October 4, 2006, the Village of Saranac Board of Trustees (hereinafter Board)convened a special meeting and then went into executive session.[FN1]While in executive session, the Board agreed to appoint Robert Hite as the Hearing Officer topreside over three matters, including petitioner's disciplinary action. After going back into opensession, a motion was made to adopt a resolution appointing the Hearing Officer referenced inexecutive session (without specifically naming either Hite or the subjects of the hearings). Theminutes of that meeting indicate that the motion was made by one Board member and secondedby another and that a third Board member affirmatively voted "yes." Based upon that vote, theVillage Attorney wrote [*2]a letter to Hite advising him of hisappointment by the Board.
Hite subsequently held a hearing on the charges and issued a report finding petitioner guiltyof misconduct and recommending his termination. Following issuance of the report, the Boardcalled another special meeting, during which it passed a motion adopting Hite's report andterminating petitioner's employment. Petitioner commenced this proceeding pursuant to CPLRarticle 78 challenging his termination on the grounds that Hite did not have the authority toconduct the disciplinary hearing pursuant to Civil Service Law § 75 (2) and that hisfindings were not based on substantial evidence. Thereafter, Supreme Court (Krogmann, J.)partially granted a motion by petitioner to amend the petition insofar as it permitted petitioner toadd certain allegations that the Board violated Public Officers Law article 7 (the Open MeetingsLaw). Supreme Court then transferred this proceeding to this Court pursuant to CPLR 7804 (g).
Petitioner's challenge to the validity of the hearing officer appointment in regard to hisdisciplinary proceeding can be distilled to two questions: (1) whether the Board sufficiently tookaction by majority vote at the October 4, 2006 special meeting to designate Hite as the hearingofficer to hold the hearing, and (2) if such action was taken, whether the Board properlydelegated its authority in writing as required by Civil Service Law § 75 (2). We answerboth questions in the affirmative.
Civil Service Law § 75 (2) provides that a hearing for disciplinary charges may onlybe held by "the officer or body having the power to remove the person against whom suchcharges are preferred, or by a deputy or other person designated by such officer or body inwriting for that purpose" (Civil Service Law § 75 [2]; see Matter of Marin vBenson, 131 AD2d 100, 102 [1987]; see also Matter of McComb v Reasoner, 29 AD3d 795, 798[2006]). In this case, the "officer or body" that has the power to remove petitioner is the Board(see Village Law § 8-804 [1]). Because the Board consists of five members, three"yes" votes were required in order to pass a resolution to delegate to Hite the authority toconduct a hearing on the charges against petitioner (see Matter of D.E.P. Resources vPlanning Bd. of Vil. of Monroe, 131 AD2d 757, 758 [1987]; see also GeneralConstruction Law § 41).
We are unpersuaded by petitioner's contention that the October 4, 2006 motion to approvethe resolution purporting to appoint Hite as Hearing Officer was invalid for failing to garner athree-vote majority. While it is true that the minutes reflect that only one member formally saidthe word "yes" while the two other voting members moved to approve the resolution andseconded it, the unrefuted affidavit submitted by the Village Clerk established that it was thegeneral practice in the Village that the actions of making or seconding motions by Boardmembers were considered "yes" votes unless stated otherwise. This practice was not onlyspecifically acknowledged in the affidavits of the Board members who made and seconded thesubject motion to approve the resolution, but these individuals also confirmed that their actionsconstituted "yes" votes in reference to the resolution (cf. Matter of Gersen v Mills, 290AD2d 839, 841 [2002]). Given this undisputed proof, we see no reason to disregard suchaffidavits and reach a conclusion on this point different from what was clearly intended by theBoard members (see e.g. Matter ofSpecht v Town of Cornwall, 13 AD3d 380, 381 [2004]; Matter of Gersen vMills, 290 AD2d at 841).
We further find that the contemporaneous October 4, 2006 Board minutes from the specialmeeting held that day referencing the resolution appointing a hearing officer sufficiently satisfythe requirements of a written delegation of the Board's authority to hold the hearing (see[*3]Matter of Scharf v Levittown Union Free School Dist.,294 AD2d 508, 509 [2002], lv denied 98 NY2d 613 [2002]; Matter of Salley vHempstead School Dist., 121 AD2d 547, 548 [1986]). Notably, the minutes from thatmeeting reflect that the special meeting commenced at 5:04 p.m. and that the Board immediatelyentered executive session for the purpose of discussing the "appointment and employmenthistory of particular people." The minutes then show that the Board returned to regular sessionand a motion was made to approve a resolution that "the hearing officer named in executivesession be appointed to serve as a hearing officer for the three matters discussed in executivesession."[FN2]The meeting concluded at 5:47 p.m. In our view, the absence of any confusion regarding theaction taken during that short meeting is apparent. In other words, there is no legitimate dispute,given all the proof in this record, including the various affidavits, that a vote was taken andrecorded, that Hite was the Hearing Officer so named and that one of the three matters discussedin executive session was petitioner's disciplinary matter (see Matter of Specht v Town ofCornwall, 13 AD3d at 381; Matter of Gersen v Mills, 290 AD2d at 841; seegenerally Hubbard v Onondaga County Dept. of Health, 219 AD2d 832, 833 [1995]).
Significantly, the public actions of entities such as the Board herein should not beinvalidated "unless there is some resulting uncertainty about what was enacted to someone'sdetriment" (Northern Operating Corp. v Town of Ramapo, 26 NY2d 404, 408 [1970]).Here, inasmuch as there is no evidence of any uncertainty or confusion about the designation ofHite to conduct petitioner's disciplinary hearing, we consider extrinsic evidence to substantiatethe content of the Board's resolution (as reflected in the October 4, 2006 special meetingminutes), thereby establishing that the Board took the necessary action (see Matter of Spechtv Town of Cornwall, 13 AD3d at 381; Matter of Gersen v Mills, 290 AD2d at 841;Hubbard v Onondaga County Dept. of Health, 219 AD2d at 833). Any other result wouldneedlessly exalt "form over substance" (Northern Operating Corp. v Town of Ramapo,26 NY2d at 409). Additionally, to the extent that petitioner's challenges based upon allegedviolations of the Open Meetings Law (see Public Officers Law art 7) have beenpreserved, petitioner has not established good cause which would warrant judicial reliefinvalidating any of the actions taken at the October 2006 and January 2007 meetings (seeMatter of Gernatt Asphalt Prods. v Town of Sardinia, 87 NY2d 668, 686 [1996]; Matterof Gersen v Mills, 290 AD2d at 841; Town of Moriah v Cole-Layer-Trumble Co.,200 AD2d 879, 881 [1994]).
We turn now to the merits of the Board's determination. "The standard of review of adetermination made following a hearing pursuant to Civil Service Law § 75 is whether thedetermination is supported by substantial evidence" (Matter of Longton v Village of Corinth, 57 AD3d 1273, 1274[2008] [citations omitted]; see CPLR 7803 [4]). Here, the charges against petitioner stemfrom an incident wherein two village police officers were involved in a car accident while onduty in an unmarked village police car after they had consumed alcohol. The credible evidenceadduced at the hearing demonstrated that petitioner was aware that the village police officers inquestion had been drinking before the accident and that he attempted to conceal such informationfrom the investigating authorities, thereby engaging in a pattern of misconduct. The evidenceadduced at the hearing also supports Hite's finding that petitioner engaged in misconduct byfailing to conduct an internal investigation of the incident to address the conduct [*4]of the police officers in question, who not only operated a villagevehicle while intoxicated, but failed to disclose this information in the reports they wroteregarding the accident.
Specifically, it is undisputed that the two village police officers involved in the car accidenthad each consumed four alcoholic beverages between 12:30 p.m. and 5:00 p.m. on the day inquestion and that the accident occurred between 6:00 p.m. and 6:20 p.m. A witness who testifiedthat he spoke with both village police officers immediately after the accident stated—bothin his hearing testimony and in his sworn statement to the State Police—that he smelledalcohol on the breath of the vehicle's driver and observed the vehicle's passenger act as thoughhe was intoxicated. A State Police investigator opined at the hearing that the fact that both menhad been drinking and that this was obvious to a civilian makes it highly likely that, whenpetitioner spoke to the police officers, he was aware that they had consumed alcohol. Thetestimony of State Trooper John Moody, who investigated the accident, evidences that petitionerattempted to keep Moody away from the village police officers involved immediately followingthe accident and directed another village officer to go to the scene and transport the officers backto the village police station. Moody further testified that, while at the station, petitioner acted asa go-between for Moody (who was in the front of the station) and the police officers (who stayedin the back).
It was also undisputed that petitioner subsequently directed another village police officer todrive the two officers to their homes. In addition, petitioner arranged to have the car towed fromthe scene of the accident without ascertaining whether the State Police approved of its removal.The testimony of then Essex County District Attorney Ronald Briggs also established thatpetitioner called him and gave him misleading information in an effort to obtain his approval forthe Village, rather than the State Police, to assume jurisdiction over the investigation. Withregard to petitioner's failure to perform an internal investigation, he testified that he did notperform any investigation into the incident for purposes of employee discipline. Additionally, indirect contravention to the village employee drug free work place policy, petitioner advised theofficers that he could not compel them to submit to alcohol testing.
While petitioner's testimony and that of other witnesses offered by him contradicted thetestimony presented by the Village in some respects, the resolution of questions of credibility aresolely within the province of the Hearing Officer (see Matter of Peters v County of Rensselaer, 28 AD3d 854, 854[2006]; Matter of Rounds v Town ofVestal, 15 AD3d 819, 822 [2005]), and this Court does not substitute its judgment forthat of the Board, nor does it weigh the evidence presented at the hearing (see Matter ofWilburn v McMahon, 296 AD2d 805, 806 [2002]; Matter of Novotny v Constantine,150 AD2d 852, 853 [1989]; Matter of Farwell v Chesworth, 116 AD2d 802, 803 [1986]).Thus, the fact that "petitioner presented an alternative explanation for the course of events" is nota basis for disturbing the Board's determination (Matter of Peters v County ofRensselaer, 28 AD3d at 854; see Matter of Longton v Village of Corinth, 57 AD3dat 1274; Matter of Clarke vCleveland, 53 AD3d 894, 896 [2008]). Accordingly, we find that there was substantialevidence supporting Hite's report and recommendations and, therefore, that the Board's decisionto terminate petitioner was also supported by substantial evidence.
Finally, we are unpersuaded that the Board's determination should be invalidated based uponpetitioner's conclusory assertions that the Board must have failed to review the record given itssize and the fact that Hite's report and recommendation was received one day before the Boardvoted on it. We first note that determinations made by the Board are entitled to a presumption ofregularity (see Matter of McKinney vBennett, 31 AD3d 860, 861 [2006]). As such, in order to [*5]meet his evidentiary burden on this claim, petitioner must showthat the Board " 'made no independent appraisal and reached no independent conclusion' "(Matter of Taub v Pirnie, 3 NY2d 188, 195 [1957], quoting Matter of Kilgus v Boardof Estimate of City of N.Y., 308 NY 620, 628 [1955]; accord Matter of Nehorayoff vFernandez, 191 AD2d 833, 835 [1993]). "Contrary to petitioner's contention, [the Board]was not required to read all . . . pages of the hearing transcript and each documentsubmitted" (Matter of McKinney v Bennett, 31 AD3d at 861 [citations omitted]). Thus,petitioner's unsubstantiated claims that the Board failed to review the record are insufficient toovercome the presumption of regularity (see Matter of Nehorayoff v Fernandez, 191AD2d at 835).
In view of the foregoing, petitioner's remaining arguments concerning the penalty imposedare rendered academic.
Cardona, P.J., Peters, Malone Jr. and McCarthy, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.
Footnote 1: Executive session denotes "thatportion of a meeting not open to the general public" (Public Officers Law § 102 [3]).
Footnote 2: Respondents maintain that thenames of the individuals referenced in the resolution were not specifically set forth therein inorder to protect their privacy.