Opinion
November 29, 1993
Adjudged that the determination is confirmed and the proceeding is dismissed on the merits, with costs.
We reject the petitioner's contention that the Hearing Officer should have disqualified himself as a matter of due process because he had heard testimony concerning similar charges in a prior proceeding (see, Matter of Willett v Dugan, 161 A.D.2d 900, 901). There is no indication that the Hearing Officer had prejudged the specific facts of this dispute because of his involvement in the prior proceeding (see, Matter of 1616 Second Ave. Rest. v New York State Liq. Auth., 75 N.Y.2d 158, 161-162). We are satisfied that the Hearing Officer's findings and recommendation were based solely on matters of record (see, Matter of Simpson v Wolansky, 38 N.Y.2d 391). Hence, we conclude that the petitioner was not denied his right to a fair hearing and an impartial Hearing Officer (see, Civil Service Law § 75; Matter of Gioe v Board of Educ., 126 A.D.2d 723, 724).
Furthermore, we find that the Acting Commissioner's determination was supported by substantial evidence (see, Matter of Jeremias v Sander, 177 A.D.2d 488), and that the penalty imposed was not so disproportionate to the petitioner's misconduct, in light of all the circumstances, as to be shocking to one's sense of fairness (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222). Thompson, J.P., Sullivan, Rosenblatt and Ritter, JJ., concur.