Opinion
February 17, 1981
Proceeding pursuant to CPLR article 78, inter alia, to review a determination of the Director of Probation of Nassau County, dated June 20, 1978, which, after a hearing, terminated petitioner's employment with the Nassau County Probation Department. Petition granted to the extent that the determination is annulled, on the law, without costs or disbursements, and matter is remitted to the Nassau County Probation Department for a de novo determination by a deputy director or any other duly qualified individual who may be designated (see County Law, § 401). The determination shall be based upon the original hearing record and shall include written findings of fact showing the grounds for the decision (see Matter of Klein v. Department of Mental Hygiene of State of N.Y., 15 A.D.2d 562). In the event the charges are sustained, and if petitioner's personnel record is to be considered with respect to the determination of punishment, petitioner shall be so notified and shall be given an opportunity to be heard with respect to that record (cf. Matter of Schadt v Sardino, 67 A.D.2d 821). Because of his personal involvement in the events underlying some of the specifications of misconduct, Director Milone should have disqualified himself from acting with respect to any of the charges (see, e.g., Matter of O'Reilly v Pisani, 79 A.D.2d 973; Matter of Aiello v. Tempera, 65 A.D.2d 791; cf. Matter of Murchison, 349 U.S. 133; Arnett v. Kennedy, 416 U.S. 134, 196-199 [White, J., concurring in part and dissenting in part]). Mollen, P.J., Hopkins, Mangano and Cohalan, JJ., concur.