Matter of McComb v Reasoner

[*1] Matter of McComb v Reasoner 2005 NY Slip Op 50033(U) Decided on January 21, 2005 Supreme Court, Westchester County Dickerson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 21, 2005
Supreme Court, Westchester County

In the Matter of the Application of JEAN MCCOMB, Petitioner,

against

ANNE REASONER, individually and in her capacity as Budget Director for the City of White Plains, MARTIN F. SCHEINMAN, ESQ., individually, JOSEPH M. DELFINO, individually and in his capacity as Mayor of the City of White Plains, NY and THE CITY OF WHITE PLAINS, NY, Respondents



04-12212



Lovett & Gould

Attorneys For Petitioner

222 Bloomingdale Road

White Plains, NY 10605

Lamb & Barnosky, LLP

Attorneys For Respondents

534 Broadhollow Road, Ste 210

P.O. Box 9034

Melville, NY 11747-9034

Thomas A. Dickerson, J.

Before this Court is Respondents' C.P.L.R. § 3211 motion seeking to dismiss the Article 78 Petition of Petitioner Jean McComb [ " McComb " ] for a failure to state a cause of action.

The Charges

On May 16, 2002, Mayor Joseph M. Delfino [ " the Mayor " ] preferred disciplinary charges against McComb, a Deputy Budget Director [ " In accordance with Civil Service Law § 75, you are hereby notified that the following charges are preferred against you..." [FN1]]. The charges included insolent and/or disrespectful behavior toward supervisors and colleagues for several incidents occurring from January 2001 through February 2002, failure to follow directives from supervisors for the period of March 2001 through February 2002, and failure to perform job duties in an appropriate manner.

The Suspension

In accordance with Civil Service Law § 75(3) the Mayor suspended McComb [FN2] for a period of thirty days without pay. Upon expiration of this thirty day period, her suspension continued with pay [ " Pursuant to Civil Service Law 75, you are hereby suspended from work, without pay, for up to 30 days, and with pay thereafter..."[FN3] ].

The Hearing Officer

Pursuant to Civil Service Law § 75(2), the Mayor then designated David Stein [ " Stein " ] as the Hearing Officer in the disciplinary proceeding against McComb [ " Ms. Jean McComb is a [*2]Deputy Budget Director. I filed disciplinary charges against her dated May 16, 2002. I hereby designate you to be the hearing officer in the disciplinary proceedings against Ms. McComb in accordance with the provisions of Civil Service Law § 75 "[FN4] ].

The Hearing



The disciplinary hearing was commenced on July 17, 2002, and the City of White Plains completed its case against McComb on September 11, 2002. At the beginning of McComb's case in chief, her counsel made a motion to dismiss the charges on the grounds they were jurisdictionally defective.

The First Article 78 Proceeding

On December 28, 2002, Stein denied McComb's motion to dismiss, and on January 3, 2003, she filed an Article 78 petition with this Court, challenging Stein's designation as hearing officer and the Mayor's authority to prefer disciplinary charges. This Court dismissed the petition as premature holding that since there had been no recommendations issued by Stein as of the date of the petition, no injury had occurred to McComb

[ Matter of McComb v. Delfino, New York Law Journal, April 8, 2003, p. 23, col. 5 ( West. Sup. ) ].

Report And Review

Upon completion of the disciplinary proceeding against McComb, Stein rendered a report and recommendations to the Mayor dated January 2, 2004. The Mayor then delegated and assigned the full power and authority to consider and review Stein's report and recommendations to Martin Scheinman, Esq. [ " Scheinman " ][ " In order to preempt any assertions of bias or partiality that may be made on Ms. McComb's behalf, I hereby delegate and assign to you the full power, obligation and authority to consider and review the entire hearing record, as well as Mr. Stein's report(s) and recommendation(s) once they are finalized, and then make a final and binding determination at your earliest possible convenience "[FN5] ].

It is clear that the purpose of the Mayor's delegation of his decision making authority to Scheinman was to preempt any [*3]assertions of bias or partiality that may be made on McComb's behalf and to make a final and binding determination based on the entire record. The Mayor, understandably, was concerned with assertions of bias since he preferred the written disciplinary charges filed against McComb and was subpoenaed to testify as a witness against her.

Guilty Of Three Charges

Scheinman reviewed the entire record of the disciplinary hearing, including all transcripts, exhibits, memoranda of law, reports and recommendations, and issued a Final and Binding Determination on July 23, 2004 [ " For the reasons stated herein, Respondent Jean McComb is guilty, as delineated above, of Charges I and II, Insubordination and Misconduct, and guilty, as delineated above, of Charge IV, Neglect of Duty and Incompetence. She is hereby dismissed "[FN6] ].

Terminated

McComb was notified of her termination on August 2, 2004 [ " This is to notify you that in accordance with the decision rendered by Arbitrator Martin Scheinman, Esq., you are hereby terminated from your position as Deputy Budget Director, effective July 23, 2004 "[FN7] ].

The Second Article 78 Proceeding

In this Article 78 proceeding McComb seeks judgement declaring illegal, ultra vires, null and void the disciplinary charges preferred against her by the Mayor, as well as his appointment of Stein as the hearing officer for the disciplinary hearing, his delegation of his decision making authority to Scheinman and Scheinman's ultimate determination of the disciplinary charges, and the termination of McComb's employment. McComb also seeks retroactive reinstatement to her position as the Deputy Budget Director along with back pay and costs.

Who Should Have Preferred The Charges? [*4]

McComb, former Deputy Budget Director, asserts that the Mayor's preferral of charges was improper. She argues that the Budget Director at the time, Eileen Earl [ " Earl " ], was the proper appointing authority for the position of Deputy Budget Director and not the Mayor and, hence, only Earl was the appropriate person to prefer the charges against her.

The White Plains City Charter

Article IV, Section 47 of the White Plains City Charter provides

that the Mayor " shall be charged with the general oversight of all departments, boards and commissions of the city ". Article II, Section 8 provides that " There shall be appointed by the mayor, with the consent of the common council, a commissioner of finance, an assessor and a board of assessment review...and a budget director... Other officers may be appointed as provided in this act or otherwise by law. Any city officer, when authorized by the common council, may appoint a deputy or deputies...". Article II, Section 6 defines a " city officer " as " all persons elected or appointed to any office of the city created or authorized by this act or otherwise by law ".

It is clear that pursuant to the White Plains City Charter the Mayor has the power, with the consent of the Common Council, to appoint the Deputy Budget Director. Accordingly, the Mayor was a proper appointing authority for McComb in her position as Deputy Budget Director.

Budget Director Properly Delegated Her Authority

In addition, the Mayor was authorized to prefer the charges against McComb by virtue of the fact that Earl, as Budget Director, delegated to the Mayor her own authority to prefer charges against McComb. Pursuant to Article II Section 8 of the City Charter, the Mayor was her immediate supervisor. As stated by Earl at the disciplinary hearing " I report directly to the Mayor and to his executive officer, Mr. Gretsas "[FN8].



Fear In The Budget Department

Earl delegated her authority to the Mayor because she was afraid of McComb. Earl testified at the disciplinary hearing that during 1999 and 2000, she witnessed McComb's escalating pattern of abusive behavior, e.g., McComb hurled objects at or near Earl and engaged in verbal abuse. McComb's behavior deteriorated into [*5]irrational episodes during which she threatened her colleagues and expressed her intent to shoot Earl. McComb also told Earl that she wished to splatter the blood of two colleagues all over the wall [ emphasis added ][FN9]. It seems apparent that Earl's preferral of charges against McComb, someone who threatened her life, may have created a conflict of interest situation.

Keep Them Separated

Dr. Schechtman, a psychiatrist hired by the City of White Plains to evaluate McComb following complaints regarding her threats to Earl and other colleagues, recommended that McComb's office not be located in the Budget Department. She was placed in the City Library and she could only communicate by e-mail with Earl through the Mayor's Executive Officer, Mr. Gretsas, who would relay McComb's e-mails to Earl. McComb was absolutely forbidden to speak with Earl. Under these unusual and life threatening circumstances this Court finds that Earl properly delegated her authority to prefer charges against McComb to the Mayor.

The Power To Give And To Take Away

The Mayor had both the authority to appoint McComb as the Deputy Budget Director and the power to remove her from her position [ See, e.g., Waters v. City of Glen Cove, 181 AD2d 783, 580 N.Y.S.2d 796 (2d Dept. 1992)( interpretation of Civil Service Law § 75; " [i]t is an elementary principle of law that an appointing authority possesses the power to remove an employee....although the Mayor must appoint employees with the City Council's consent, it is the Mayor who possesses the power of appointment...Similarly, it is the Mayor who wields the power of removal...and that power is not subject to the consent or approval of the City Council " ].

The Mayor Properly Designated Stein

Civil Service Law § 75(2) provides " The hearing upon such charges shall be held by the officer 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 ". Since the Mayor had the power to remove the Deputy Budget Director, he also had the power, [*6]pursuant to Section § 75(2) to either hold the hearing himself or to designate that power, in writing, to another person, which he did to Stein.

The 30-Day Suspension Proper

McComb argues that her 30-day suspension without pay is illegal, ultra vires, and null and void. This Court finds that because the Mayor was a proper appointing authority for McComb in her position as Deputy Budget Director, he was also the proper person to suspend McComb pending disciplinary charges.

The Mayor Properly Designated Scheinman

If a deputy or other person has been designated [ by the appointing authority ] to conduct a disciplinary hearing [ rather than the officer or body having the power to remove ], Civil Service Law § 75(2) states that " he shall, for the purpose of such hearing, be vested with all the powers of such officer or body and shall make a record of such hearing which shall, with his recommendations, be referred to such officer or body for review or decision ".

Upon conclusion of the disciplinary hearing, Stein issued a report and recommendations to the Mayor wherein he recommended that McComb be found guilty of Insubordination, Misconduct, Incompetence and Neglect of Duty and that she be dismissed from her position as Deputy Budget Director. Since the Mayor preferred the written charges and was subpoenaed to testify and did testify as a witness in the hearing against McComb [ and was named by McComb as a respondent in a prior Article 78 proceeding ] the Mayor properly delegated to Scheinman the full power and authority to consider and review Stein's report and recommendations " in order to preempt any assertion of bias or partiality that may be made on Ms. McComb's behalf " and to make a final and binding determination based on the entire record [ See e.g., Matter of Lowy v. Carter, 210 AD2d 408, 409, 620 N.Y.S.2d 103, 104 (2d Dept. 1994) ( " where a respondent filed charges and testified at the hearing, as a matter of propriety and because of the personal involvement, the respondent should disqualify himself from reviewing the recommendation of the hearing officer and acting on any of the charges...By reviewing the hearing officer's recommendation and the hearing itself, the Commissioner was in a position of passing on his own credibility as a witness... "); Matter of Brundage v. Yonkers Parking Authority , 220 AD2d 411, 631 N.Y.S.2d 883 ( 2d Dept. 1995 ) ( " The Executive Director...preferred the charges, and appointed the hearing officer. Based on all the facts and circumstances of the Executive Director's involvement, he should have disqualified [*7]himself and appointed another individual to make the final

determination " ); Matter of Pryor v. O'Donnell, 262 AD2d 648, 693 N.Y.S.2d 187 ( 2nd Dept. 1999 )( " The Commissioner of the Suffolk County Department of Labor...should have disqualified himself from reviewing the recommendation of the hearing officer and acting on any of the charges because of his personal involvement with the case...The Commissioner was involved in the initial investigation, preferred the charges, and testified at the hearing " ).

This Court finds that the Mayor properly acted within his authority to designate Scheinman as a duly qualified impartial decision maker in order to avoid any allegations of bias or impartiality.

Conclusion

Accordingly, Respondents' Motion is granted and Petitioner's Article 78 Petition is dismissed in its entirety.

The foregoing constitutes the decision and order of this court.

Dated: White Plains, NY

January 21, 2005

________________________________

HON. THOMAS A. DICKERSON

JUSTICE SUPREME COURT

TO: Lovett & Gould

Attorneys For Petitioner

222 Bloomingdale Road

White Plains, NY 10605

Lamb & Barnosky, LLP

Attorneys For Respondents

534 Broadhollow Road, Ste 210

P.O. Box 9034

Melville, NY 11747-9034

ENDNOTES Footnotes

Footnote 1: See letter of Mayor Joseph M. Delfino to Ms. Jean McComb dated May 16, 2002 at p. 44 of Administrative Return.

Footnote 2: See Notice of Suspension from Mayor Joseph M. Delfino to Ms. Jean McComb dated May 16, 2002 at p. 46 of Administrative Return.

Footnote 3: Id.

Footnote 4: See letter of Mayor Joseph M. Delfino to David N. Stein, Esq. dated May 16, 2002 at p. 45 of Administrative Return.

Footnote 5: See letter of Mayor Joseph Delfino to Martin F. Scheinmann, Esq. dated May 4, 2004 at p. 113 of Administrative Return.

Footnote 6: See Final and Binding Determination dated July 23, 2004 at p. 140 of Administrative Return.

Footnote 7: See letter of Anne Reasoner, Budget Director, to Jean McComb dated August 2, 2004 at p. 141 of Administrative Return.

Footnote 8: See p. 146 of Administrative Return.

Footnote 9: See Report And Recommendations of Hearing Officer David N. Stein, Esq. dated January 2, 2004 at p. 70 of Administrative Record.