| Matter of Schroeder v Scoppetta |
| 2010 NY Slip Op 07552 [77 AD3d 840] |
| October 19, 2010 |
| Appellate Division, Second Department |
| In the Matter of John J. Schroeder, Petitioner, v NicholasScoppetta, as Commissioner of the Fire Department of the City of New York, et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein andMordecai Newman of counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the respondent FireCommissioner of the City of New York dated November 19, 2008, which, after a hearing,affirmed a determination of an administrative law judge dated September 28, 2007, that thepetitioner was guilty of three charges of misconduct, and terminated his employment as afirefighter with the Fire Department of the City of New York.
Adjudged that the petition is granted, on the law, the determination is annulled, with costs,and the matter is remitted to the respondent Fire Commissioner of the City of New York for anew determination based solely upon matters in the hearing record.
The petitioner, John J. Schroeder, became a New York City firefighter in March 1990.During a random drug test conducted by the Fire Department in October 2004, Schroeder testedpositive for cocaine. As a result, the Fire Department commenced disciplinary proceedingsagainst him. After a hearing, the Administrative Law Judge (hereinafter the ALJ) foundSchroeder guilty of three charges of misconduct. However, since Schroeder had a previouslyunblemished service record, and suffered from posttraumatic stress disorder and a permanentlung disability as a direct result of the events of September 11, 2001, the ALJ concluded thattermination of his employment and benefits would be unduly harsh. Consequently, the ALJrecommended holding the imposition of a penalty in abeyance in order to allow Schroeder toretire on a disability pension, or alternatively, suspending him for 10 days, without pay. The FireCommissioner adopted the ALJ's finding that Schroeder was guilty of the charges, but concludedthat termination was the appropriate penalty.
In his determination, the Fire Commissioner admitted having relied upon the "CounselingServices Unit records of Firefighter Schroeder." Based upon his review of those records, the FireCommissioner found that Schroeder had admitted to using cocaine more than once to hiscounselor and that "this behavior suggests a pattern of drug use." Those records provided supportfor the Fire Commissioner's decision to impose the most severe penalty of termination, ratherthan one of the lesser alternate penalties recommended by the ALJ. However, it is clear from therecord, as confirmed by the [*2]ALJ in his report, that Schroeder'scounselor did not testify at the hearing and her records were not admitted as evidence. Schroederhad no opportunity to cross-examine the counselor or to explain any of the statements heallegedly made to her, or to rebut the information contained in her records.
"[I]t is not proper for an administrative agency to base a decision of an adjudicatory nature,where there is a right to a hearing, upon evidence or information outside the record" (Matterof Simpson v Wolansky, 38 NY2d 391, 396 [1975]; see Matter of Multari v Town ofStony Point, 99 AD2d 838, 838 [1984]; Matter of Farrell v Dowling, 90 AD2d 849,849 [1982]). Since the Fire Commissioner's determination was improperly influenced by thecounseling records, the petition must be granted, the determination must be annulled, and thematter must be remitted to the Fire Commissioner for a new determination based solely uponmatters in the hearing record (see Matter of Simpson v Wolansky, 38 NY2d at 396;Matter of Korth v McCall, 275 AD2d 511, 512-513 [2000]; Matter of Multari v Townof Stony Point, 99 AD2d at 839).
In light of our determination, we need not reach Schroeder's remaining contentions. Mastro,J.P., Dickerson, Eng and Lott, JJ., concur.