Matter of Rutkunas v Stout
Annotate this CaseDecided on June 3, 2005
Supreme Court, Westchester County
IN THE MATTER OF THE APPLICATION OF Anthony Rutkunas, Petitioner, FOR AN ORDER AND JUDGMENT PURSUANT TO ARTICLE 78 OF THE CIVIL PRACTICE AND LAW AND RULES
against
Joseph A. Stout, as COMMISSIONER OF THE WESTCHESTER COUNTY DEPARTMENT OF PARKS, RECREATION AND CONSERVATION, THE WESTCHESTER COUNTY DEPARTMENT OF PARKS, RECREATION AND CONSERVATION AND THE COUNTY OF WESTCHESTER., Respondents.
3417/05
JAMES M. ROSE, ESQ.
Attorney for Petitioner
50 Main Street Suite 974, White Plains, NY 10606-1934
CHARLENE M. INDELICATO, ESQ.
WESTCHESTER COUNTY ATTORNEY
Jacob E. Amir, Assistant County Attorney
Of Counsel
Attorney for Respondents
Michaelian Office Building
148 Martine Avenue, White Plains, NY 10601
Mark C. Dillon, J.
By Notice of Petition and Verified Petition dated March 9, 2005, the Petitioner, Anthony Rutkunas (hereinafter referred to as either the "Petitioner" or "Rutkunas"), commenced this Article 78 proceeding against the Respondents, Joseph A. Stout ("Stout") as Commissioner of the Westchester County Department of Parks, Recreation and Conservation, the Westchester County Department of Parks, Recreation and Conservation ("PRC") and the County of Westchester (the "County") (hereinafter referred to collectively as the "Respondents"). The Petitioner seeks an Order vacating Stout's administrative determination dated February 18, 2005 which terminated Rutkunas from his position as a Senior Maintenance Mechanic I (Carpenter), Grade VIII.
By way of background and pursuant to New York Civil Service Law §75, Stout had preferred formal disciplinary charges against Rutkunas by formal Notice of Charges dated July 12, 2004. The Notice of Charges consisted of seven (7) separate Specifications alleging inappropriate and/or unprofessional conduct by Rutkunas on
June 9, 2004 (Specifications 1 and 2) and July 8, 2004 (Specifications 3 through 7). Stout designated Hon. Robert Ponzini as the Hearing Officer to preside over the hearing on the charges. On August 9, 2004, the hearing was commenced at which time both sides appeared and were represented by legal counsel. The hearing was continued to its conclusion on August 16, 2004. On February 11, 2005, Hearing Officer Ponzini issued a written Hearing Officer's Report and Recommendation in which he found the Respondent guilty of misconduct and/or incompetence and sustained all seven (7) Specifications. As for a penalty, Hearing Officer Ponzini recommended that the "Respondent be suspended without pay for a minimum of sixty (60) days, but a termination would be equally appropriate."
The Petitioner now alleges in four (4) causes of action that the punishment of termination was "harsh and shocking to one's sense of fairness...," that Stout engaged in [*2]an improper ex parte communication with Hearing Officer Ponzini prior to the issuance of his Report and Recommendation, that such communication was highly prejudicial and a violation of the Petitioner's due process rights, and that the Hearing Officer made contradictory and improper recommendations as to penalty. By Verified Answer dated April 7, 2005, the Respondents, as to the material allegations of the Petition, either deny or deny knowledge or information sufficient to form a belief. They also assert six (6) defenses and objections in point of law.
As a threshold matter, the Court notes the requirement under CPLR §7804 (g) for a Court to transfer the matter to the appropriate Appellate Division where the Petitioner alleges that a determination made after hearing is not supported by substantial evidence. At first blush, it would appear that this application is an appropriate one for transfer. However, §7804 (g) also provides that if the Petition raises other points which are objections that could terminate the proceeding, the trial Court shall first dispose of those issues. See. Duso v. Kralik, 216 AD2d 297 (2d Dept. 1995). Upon a careful reading of the Petition, it is apparent that the Petitioner's challenge is limited to alleged errors of law such as the appropriateness of the sanction imposed, and whether or not certain alleged conduct by the Hearing Examiner and Stout violated the Petitioner's rights and/or constituted an abuse of discretion. Nowhere in the Petition does Rutkunas claim that the evidentiary process, including the Hearing Officer's Findings and Decision sustaining the seven (7) Specifications of misconduct, were not supported by substantial evidence in the record. Accordingly, pursuant to CPLR §§ 7803 (4) and 7804 (g), this Court may dispose of the issues raised herein and that transfer to the Appellate Division is not required. See, Ferguson v. Meehan, 141 AD2d (2d Dept. 1988).
Regarding the issue as to whether or not termination of Rutkunas from his position was a proper sanction, the Court is guided by the seminal case of Pell v. Board of Education, 34 NY2d 222 (1974). There, the New York Court of Appeals held that where a finding of guilt has been imposed in an administrative personnel disciplinary proceeding, the test on review is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness. Here, on the dates in question, the Petitioner was assigned as a senior maintenance mechanic (carpenter) at Playland Park, an amusement park operated by the PRC. After a two-(2) day evidentiary hearing, the Hearing Officer found that Rutkunas failed to bring wood to a job site and failed to complete certain work, despite being asked to do so. The Hearing Officer also found that the Petitioner was assigned to inspect the Dragon Coaster, a roller coaster at Playland Park. While walking the tracks as part of the inspection, Rutkunas threw a coffee cup and at least two, four-inch nails from an elevation of approximately fifteen (15') feet in the direction of other employees who were working below him. Two nails struck an employee in the back and chest. Immediately following [*3]the nail throwing incident, the Respondent attempted to drive a motor vehicle while appearing to be under the influence of alcohol.
As a result of the aforesaid infractions, the Hearing Officer recommended a suspension without pay for a minimum of sixty (60) days and noted that termination would be "equally appropriate." In arriving at such recommendation, the Hearing Officer credited the testimony of the Respondents' witnesses. He also noted the Petitioner's apparent lack of appreciation or understanding of the threat his actions posed to the health and safety of his co-workers, not to mention the general public, if the amusement rides were not properly maintained.
Commissioner Stout, after being presented with the Hearing record and with the Hearing Officer's Report and Recommendation, chose to terminate the Petitioner from his position. On the facts presented, the Court finds that Stout did not abuse his discretion in imposing the sanction of termination. It cannot seriously be argued that the penalty is so disproportionate to the offense as to be shocking to one's sense of fairness.
The Court must next consider Petitioner's claim that the January 28, 2005 designation of Hearing Officer Ponzini to a subsequent disciplinary proceeding involving Rutkunas, while the instant matter was still pending, constitutes an impermissible ex parte communication. The crux of the Petitioner's claim is that providing Hearing Officer Ponzini with a second set of disciplinary charges, when he had yet to determine the first matter, prejudiced the Petitioner and impacted the Hearing Officer in his determination of the July 12, 2004 charges.
The Court is mindful of the opinion rendered by the Court of Appeals thirty (30) years ago in Simpson v. Wolansky, 38 NY2d 391 (1975), upon which the Petitioner primarily relies. The case stands for the proposition that it is improper for an administrative agency to base a decision of an adjudicatory nature upon evidence or information outside of the record. The Court reiterated this holding in Bigelow v. Board of Trustees of the Incorporated Village of Gouverneur, 63 NY2d 470 (1984), when it stated that material outside the record cannot be considered in the adjudicatory determination of guilt. The Bigelow Court did acknowledge, however, that material outside of the record, upon proper notice to the accused, may be considered by an employer in the determination of an appropriate sanction.
Here, other than bare speculation by the Petitioner, there is no indication that the Hearing Officer considered, or even knew of, the newly-filed disciplinary charges when he examined the issue of Petitioner's guilt. Moreover, the Petitioner has not provided decisional authority supporting his position that an appointment letter to a Hearing [*4]Officer constitutes an improper ex parte communication merely because that same Hearing Officer heard earlier charges against the employee. In cases involving information obtained by a Court or Hearing Officer during the course of a proceeding, it is well established that, in the absence of a showing that a decision was based upon something other than evidence in the record, disqualification or recusal is not required. See, People v. Moreno, 70 NY2d 403 (1987); Hall v. Del Castillo, 174 AD2d 743 (2d Dept. 1991). Indeed, the record here contains strong and virtually uncontroverted evidence of the Petitioner's guilt, and there is no showing that the Hearing Officer considered anything other than the evidence when he reached his decision as to guilt and made his recommendation as to penalty. Thus, the Petitioner's present attempt to claim that the appointment of Hearing Officer Ponzini to preside over the hearing involving the January 2005 charges somehow tainted the adjudicatory phase of the proceeding involving the 2004 charges is without merit.
To the extent that the Petitioner is claiming that the Hearing Officer's alleged knowledge of the new charges caused him to recommend an unduly harsh remedy, the Court has already determined that the sanction of termination was appropriate and not shockingly severe. Further, the Hearing Officer merely recommended a sanction; the duty of actually imposing the sanction belonged to Stout, as the PRC Commissioner. Here, Stout adopted the Hearing Officer's findings of guilt and imposed the penalty of termination which the Hearing Officer noted would be an appropriate sanction under the circumstances of this case.
While the Petitioner does not specifically allege that Stout improperly considered the new charges in his imposition of a termination in this case, the Court nonetheless rejects any such argument. There is no evidence to suggest that Stout considered the new charges in arriving at a sanction on the earlier charges. Even if he had, however, the Petitioner's counsel concedes that by February 7, 2005, both he and his client were aware of the new charges. Armed with this knowledge, they could have taken whatever legal action they deemed to be appropriate at the time, since the determination on the earlier charges had not yet been rendered. Thus, there is no merit to the Petitioner's claim that his legal and Constitutional rights were violated by either the Hearing Officer or by Commissioner Stout.
Lastly, the Court rejects the Petitioner's claim that the Hearing Officer impermissibly made two (2) contradictory recommendations. A logical reading of the Hearing Officer's Report and Recommendation clearly demonstrates that the Hearing Officer believed a suspension without pay for at least sixty (60) days or a termination would be an appropriate penalty. Stout, in the exercise of his discretion, chose the latter. Even if this Court were to accept, which it does not, the Petitioner's argument that the [*5]Hearing Officer's dual recommendation constituted no recommendation at all, it is well established that the failure to recommend a sanction does not require the drastic remedy of annulling an entire proceeding. See, Wiggins v. Board of Education of the City of New York, 60 NY2d 385 (1983).
The Court has considered any remaining arguments and finds them to be either without merit or otherwise mooted by this Decision and Order.
On the basis of the foregoing, it is hereby
ORDERED and ADJUDGED, that the Petition dated March 9, 2005 is denied in its entirety.
This constitutes the Decision and Order of the Court.
Dated: June 3, 2005
White Plains, New York
_________________________________
HON. MARK C. DILLON
JUSTICE OF THE SUPREME COURT
TO:
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