Edgar v. Dowling

96 A.D.2d 510, 464 N.Y.S.2d 816, 1983 N.Y. App. Div. LEXIS 19020

Opinion

Proceeding pursuant to CPLR article 78 to review a determination of the Superintendent of Highways of the Town of Smithtown, dated July 26, 1982, which, after a hearing, found petitioner guilty of charges of misconduct and insubordination, and dismissed him from employment with the Highway Department of the Town of Smithtown. Petition granted to the extent that the determination is annulled, on the law, with costs, and the matter is remitted to the Highway Department of the Town of Smithtown for a de novo review and determination by a duly qualified individual who may be designated. The determination shall be based upon the original hearing record and shall include written findings of fact showing the grounds for the decision. Petitioner was charged in several specifications with misconduct and insubordination. The charges were instituted and investigated by respondent James E. Dowling, Superintendent of Highways of the Town of Smithtown. There followed a hearing, during which the respondent, his son and several others testified before a designated hearing officer who found petitioner guilty of certain of the specifications and recommended that petitioner be dismissed from his employment with the Highway Department of the Town of Smith-town. Upon review, the respondent was in full accord with the hearing officer’s findings, and accordingly adopted his recommendation. As a result, he imposed the penalty of dismissal. Although we find no fault with the conduct of the hearing, we believe that, as a matter of propriety and because of his personal involvement, the respondent should have disqualified himself from acting with respect to the charges (see Sinicropi v Milone, 80 AD2d 609; Matter of O’Reilly v Pisani, 79 AD2d 973). Accordingly, there should be a full review of the evidence and recommendation, and a reconsideration of the punishment by a duly qualified individual, not heretofore involved in these proceedings or in the charges against petitioner (see Sinicropi v Milone, supra; Matter of O’Reilly v Pisani, supra). Brown, J. P., Niehoff, Rubin and Boyers, JJ., concur.