Burger Law Group, PLLC, Saratoga Springs (Sarah J. Burger of counsel), for petitioner-plaintiff. McCabe & Mack LLP, Poughkeepsie (David L. Posner of counsel), for respondents-defendants.
Burger Law Group, PLLC, Saratoga Springs (Sarah J. Burger of counsel), for petitioner-plaintiff. McCabe & Mack LLP, Poughkeepsie (David L. Posner of counsel), for respondents-defendants. Robert J. Muller, J.
The underlying facts are set forth in the Court's prior determination and will not be repeated at length. Briefly stated, petitioner was appointed the sole assessor of respondent City of Glens Falls (hereinafter the City) in September 2009 by then Mayor, respondent Jack Diamond (hereinafter the Mayor). This appointment — which completed the term of a previous assessor — expired on September 30, 2013, and petitioner was then re-appointed to a full six-year term expiring on September 30, 2019. In September 2016, the Mayor charged petitioner with two counts of misconduct, one based upon 1998 convictions for burglary in the State of Florida and another based upon August 2016 convictions for reckless endangerment in the second degree and driving while ability impaired. The Mayor suspended petitioner without pay pending a hearing on the charges and appointed respondent Robert A. Curtis — the City Clerk — as the hearing officer. A hearing was then held and Curtis recommended that petitioner be terminated. Respondent City of Glens Falls Common Council (hereinafter the Common Council) accepted this recommendation at a special meeting on October 3, 2016 and, on October 11, 2016, the Mayor sent correspondence to petitioner advising that her employment with the City was terminated.
Diamond served as Mayor from 2009 to 2017.
These convictions stemmed from two separate incidents. Specifically, in 2014 petitioner was arrested for driving while intoxicated in the Town of Lake George, Warren County. She was then arrested again in 2015 for driving while intoxicated in the Town of Queensbury, Warren County.
Petitioner commenced this combined CPLR article 78 proceeding and plenary action on February 10, 2017. The plenary action — which asserts claims under 42 USC § 1983, the New York State Constitution and the New York Human Rights Law — was then removed to the United States District Court for the Northern District of New York on March 10, 2017. Respondents thereafter moved to dismiss the CPLR article 78 proceeding on statute of limitations grounds. The motion was granted by Decision, Order and Judgment dated October 17, 2017, with the Court finding that "petitioner knew, or should have known, that she was terminated on October 4, 2016 and, as such, . . . the statute of limitations expired on February 4, 2017." Petitioner appealed and this determination was reversed, with the Appellate Division, Third Department remitting the matter for further proceedings (see 169 AD3d 1220 ).
On August 13, 2018, the District Court granted respondents' motion to dismiss the complaint in the plenary action (see Stack v City of Glens Falls, 2018 WL 3850629 [Dist Ct, NDNY 2018]). With respect to petitioner's 42 USC § 1983 claim, the District Court stated as follows: "[B]ecause a neutral adjudicator is not a required component of procedural due process at a pre-termination hearing in situations, such as this one, where [p]laintiff has a wholly adequate post-deprivation hearing under [a]rticle 78 available to her, the Court finds that [p]laintiff has not stated sufficient factual allegations in her complaint to state a claim for relief that is plausible on its face, i.e., that [d]efendants violated her Fourteenth Amendment procedural due process rights by appointing [d]efendant Curtis as the hearing officer for her pre-termination hearing" (id. at *5).
The District Court then dismissed petitioner's remaining state law claims, "declin[ing] to exercise supplemental jurisdiction over [them]" (id.). To date, petitioner has not re-filed these claims and has presumably abandoned them.
Presently before the Court is the remaining CPLR article 78 proceeding wherein petitioner challenges the termination of her employment, claiming that respondents' determination in this regard was arbitrary and capricious (see CPLR 7803 ). Upon commencement of the proceeding petitioner sought reinstatement to her position as sole assessor — together with incidental damages including lost wages and lost public employment benefits, calculated from the date of termination to the date of reinstatement (see CPLR 7806) — as well as a name-clearing hearing. With that said, at oral argument on November 13, 2019 counsel for petitioner stated as follows: "I can't argue in good faith that we know whether or not [petitioner] would have been appointed [as sole assessor] again beyond September 30[,] 2019. So, we are seeking a back pay award in lieu of reinstatement." Counsel for petitioner further "concede[d] that [the Court does] not need to do" a name clearing hearing.
Turning now to the merits, petitioner first contends that the determination must be vacated as arbitrary and capricious because it was improper for Curtis to serve as the hearing officer. In support of this contention, petitioner has submitted, inter alia, the transcript of a hearing held before the Unemployment Insurance Appeal Board. To that end, petitioner applied for unemployment insurance benefits following her termination and was denied on the ground that she engaged in disqualifying misconduct. She then appealed that determination and Curtis, among others, was called to testify at the hearing. Curtis stated as follows:
"Q. [W]as there a particular department that [petitioner] worked for?
"A. She was the head of her department, the . . . assessor's office.
"Q. What's the relationship, if any, between[ the] City [C]lerk, as a position and the assessor's office?
"A. The City [C]lerk . . . works with practically every department in the City and certainly conducted business with the assessor's office on more than one occasion.
"Q. Who did [petitioner] report to regarding her duties?
"A. [T]he [M]ayor of the City of Glens Falls, the [M]ayor being the CEO of the City.
"Q. And . . . who does the City [C]erk . . . report to?
"A. The [M]ayor of the City of Glens Falls.
"Q How did you come to be appointed . . . the hearing officer in this case?
"A. I was . . . asked by the [M]ayor to . . . take the job and I . . . did so, per his request.
"Q. How often, previously, have you been a hearing officer?
"A. I have never been a . . . hearing officer."
When questioned about the meeting at which the Mayor asked him to serve as hearing officer, Curtis further stated as follows:
"Q. How were you notified of this meeting? . . . Did you get a phone call . . . ?
"A. The [M]ayor's secretary called me and said, would you come up to the [M]ayor's conference room. I said, sure, I would like to know what the subject is and she did not tell me, but I waited in the conference room. . . .
"Q. After you went up to the [M]ayor's conference room, what do you recall about the conversation in the room?
"A. The [M]ayor . . . says that we wanted to conduct a . . . hearing on the termination of the assessor and asked me how I felt about that.
"Q. What did you say?
"A. I said I don't feel very good about it, but if you're ordering me to do that, I will do it.
"Q. When the [M]ayor asked you to serve as hearing officer, . . . you believed that that was a directive of the [M]ayor?
"A. Well, I — it — it may have been. My role as a long-standing City employee is, whoever I am working for, I will do whatever I can for the cause.
"Q. Understood. You said, quote, I don't feel very good about it. What do you mean by
"A. Not having any experience as a hearing officer."
Following this hearing, the Unemployment Insurance Appeal Board overruled the initial determination and found that petitioner was entitled to receive benefits. In the decision, the Administrative Law Judge stated as follows:
"I am bound by the findings of fact of an impartial arbitrator, provided that the claimant was afforded a full and fair opportunity to be heard. . . . I am not persuaded that the arbitrator at the hearing held on September 28, 2016 was impartial as contemplated in the case law. I note that the arbitrator was the [C]ity [C]lerk, who was appointed by and reported to the Mayor, the [C]ity [C]lerk worked with the claimant routinely during the course of her employment, and he was admittedly uncomfortable being the hearing officer in the case. Even accepting that the claimant otherwise had a full and fair opportunity to be heard, I find that collateral estoppel does not apply as the prior hearing was not heard by an impartial arbitrator."
The City appealed this decision and it was upheld by the Third Department (see Matter of Stack [City of Glens Falls — Commissioner of Labor], 165 AD3d 1362, 1364 ).
In opposition, respondents contend that the Court is not bound by the Unemployment Insurance Appeal Board's findings. Respondents further contend that petitioner was not entitled to a formal hearing in any event, but simply an opportunity to be heard. In this regard, § 3.24 of the City Charter — pursuant to which petitioner was charged — states, in pertinent part:
"[T]he official, officer or board given the appointment of any official, officer or employee of the city, shall have the power to remove such official, officer or employee from office for cause shown, after giving him a copy of the charges against him [or her], and an opportunity to be heard in his [or her] defense."
According to respondents, the hearing conducted by Curtis provided petitioner with a sufficient opportunity to be heard — notwithstanding the alleged inadequacies.
At the outset, the Court agrees that "[f]indings of fact or law by the Unemployment Insurance Appeal Board have no preclusive effect in subsequent actions or proceedings not related to article 18 of the Labor Law" (Matter of Ufland v New York State Div. of Human Rights, 167 AD3d 1509, 1510 ; seeLabor Law § 623 ). That being said, the record of the proceeding before the Unemployment Insurance Appeal Board is certainly very telling and the conclusions reached by the Administrative Law Judge persuasive.
"Regardless of whether disciplinary charges are pursued in the judicial or administrative realm, '[t]he participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions" (Matter of Zlotnick v City of Saratoga Springs, 122 AD3d 1210, 1214 , quoting Matter of General Motors Corp.-Delco Prods. Div. v Rosa, 82 NY2d 183, 188 ; see Matter of 1616 Second Ave. Rest. v New York State Liq. Auth., 75 NY2d 158, 161 ).
Here, it is undisputed that Curtis was appointed as City Clerk by the Mayor. It is likewise undisputed that — in his capacity as City Clerk — Curtis worked regularly with petitioner, and also worked closely with the Common Council. Indeed, § 3.16 of the City Charter provides that "[t]he City Clerk shall be ex-officio Clerk of the Common Council, and . . . shall keep the minutes of the Common Council, . . . and shall record and index, in books to be kept for the purpose, all proceedings of the Council . . . ." Under these circumstances, it would be difficult for anyone to act as an independent, unbiased adjudicator.
Further, "'[a]dministrative findings of fact must be made in such a manner that the parties may be assured that the decision is based on the evidence in the record, uninfluenced by extralegal considerations, so as to permit intelligent challenge by an aggrieved party and adequate judicial review'" (Matter of Alverson v Albany County, 173 AD3d 1415, 1416 , quoting Matter of Ethington v County of Schoharie, 144 AD3d 1473, 1473-1474  [internal quotation marks, brackets and citations omitted]; see Matter of United Helpers Care, Inc. v Molik, 164 AD3d 1029, 1031 ).
Here, it is undisputed that Curtis failed to make any record of the hearing. When testifying before the Unemployment Insurance Appeal Board, he stated that there was no stenographer at the hearing and he did not record it or otherwise make any type of transcript. He instead prepared his report and recommendations based solely on his "copious notes" — which are not included in the record before this Court.
While counsel for petitioner recorded a portion of the hearing and a transcript of that recording is annexed to respondents' answering papers, it unfortunately does not provide for any meaningful review. There are frequent lapses in testimony, presumably because the recording was inaudible. For example, the following is an excerpt of testimony from the assistant to the Mayor with respect to correspondence he received from the City's liability insurer:
The recording extends from the beginning of the hearing to a break requested by counsel for petitioner after finishing her cross-examination of the City's second witness. It is unclear what transpired after the recording ended.
"A. This is the letter that I received in response. He indicated that he would need some time to investigate or look into it. So this letter came to me on the afternoon —
"Q. Anything else besides the drive issue? Did he answer the driving issuing in that letter?
"A. Well, his answer regarding the driver issue was — may have a risk of additional exposure depending on if the surrogate driver is a family member.
"Q. Did he make any other —
"A. He did. Though, we didn't specifically ask this question, he did say that the City has — if I can expand. The City has coverage to protect the City against employees who may commit malfeasance, theft.
— stated that based on the history regarding [petitioner's] prior felony conviction, the City . . . is not protected for any future claim or future crime, dishonesty issues created by [petitioner] in her employment — Glens Falls."
It must also be noted that those parts of the transcript which are intelligible demonstrate that Curtis failed to rule on objections — or was perhaps unaware of his obligation to make such rulings. Instead, he sat silently while counsel for the parties resolved the objections between themselves. For example, the following colloquy took place when counsel for petitioner was cross-examining the assistant to the Mayor:
"Mr. Watt: Hold on. I'm going to object here. This is in the record already. It's been read. I don't know what the purpose of reading it again is.
"Ms. Burger: Because I want Mr. Mender to read it.
"Mr. Watt: Does he have to read it out loud?
"Ms. Burger: Why not?
"Mr. Watt: Okay, go ahead.
"Ms. Burger: Might as well hear it."
While respondents contend that this hearing was sufficient because § 3.24 of the City Charter requires nothing more than "an opportunity to be heard," the Court is not persuaded. "New York courts have construed 'opportunity to be heard' to require either the right to cross-examine, offer evidence and produce witnesses on one's behalf at a hearing or the more informal procedure of an opportunity to attack or deny the charge" (Matter of East 56th Plaza v Abrams, 91 AD2d 1129, 1131  [internal quotation marks and citations omitted]). "An 'opportunity to be heard' must be granted 'in a meaningful manner'" (id., quoting Armstrong v Manzo, 380 US 545, 552 ; see Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d 235, 260 ).
Here, even if a formal hearing was not required, petitioner still was not given the opportunity to be heard in a meaningful manner. As set forth above, Curtis was neither an independent nor unbiased adjudicator; he was the City Clerk appointed by the Mayor — the same Mayor who leveled the charges against petitioner and then requested that he serve as hearing officer, notwithstanding his lack of experience and hesitancy to assume the role.
It must also be noted that respondents' contention that a formal hearing was not required flatly contradicts the City's interpretation of § 3.24 of the City Charter throughout the disciplinary process. Indeed, in the September 6, 2016 "Notice of Discipline," the Mayor advised petitioner that "[i]n accordance with [the] Glens Falls City Charter . . . and New York State Civil Service Law Section 75, your employment with the City . . . is suspended without pay for a period not exceeding 15 days pending a hearing and determination of [the] charges of misconduct." The Mayor then sent an "Updated Notice of Discipline" on September 8, 2016 advising as follows:
"Upon further investigation . . . you are exempt from . . . New York State Civil Service Law Section 75. The disciplinary procedure that must be followed is Section 3.24 of the Glens Falls City Charter. The charge against you as detailed in the original Notice of Discipline . . . is unchanged and the hearing will still take place on September 20, 2016 . . . with Robert Curtis, City Clerk, as Hearing Officer . . . . You shall be entitled to be represented by an attorney of your own choosing at every step of this procedure."
Under the circumstances, the Court finds that petitioner has amply demonstrated that the determination must be vacated as arbitrary and capricious because she was denied an independent, unbiased adjudicator and a meaningful opportunity to be heard.
While petitioner's remaining contentions need not be considered, the Court finds that one particular contention warrants some discussion. Specifically, petitioner contends that the determination to terminate her employment must be vacated as arbitrary and capricious under article 23-a of the Correction Law, which provides as follows:
While petitioner also claimed in the petition that the determination must be vacated as arbitrary and capricious under Public Officers Law § 36 and Real Property Tax Law § 310 (8), she since conceded that Public Officers Law § 36 is inapplicable and Real Property Tax Law § 310 (8) has been repealed.
"[N]o employment . . . held by an individual . . . shall be denied or acted upon adversely by reason of the individual's having been previously convicted of one or more criminal offenses, or by reason of a finding of lack of 'good moral character' when such finding is based upon the fact that the individual has previously been convicted of one or more criminal offenses, unless
(1) there is a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought by the individual; or
(2) the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public." (Correction Law § 752).
In opposition, respondents contend that article 23-a of the Correction Law does not apply when an individual is convicted of a criminal offense while already employed — as was the case with petitioner's August 2016 convictions, which formed the basis of the first count of misconduct. Insofar as the second count of misconduct is concerned — which count was based upon petitioner's 1998 burglary conviction — respondents contend that petitioner was not terminated because of the conviction but, rather, because of the effect the conviction had on the City's "insurability."
At the outset, respondents are correct that the provisions of article 23-a of the Correction Law apply only to "employment held by any person whose conviction of one or more criminal offenses . . . preceded such employment" (Correction Law § 751 [emphasis added]). Accordingly, where an employee's "conviction, and . . . subsequent arrest occurred when he [or she] was already employed . . . , they do no provide a basis for a claim under Correction Law [a]rticle 23-A" (Martino v Consolidated Edison Co. of NY Inc., 105 AD3d 575, 575 ). To the extent that petitioner was already employed by the City in August 2016, Correction Law article 23-a does not apply to the first count of misconduct.
The second count of misconduct, however, does fall within the purview of Correction Law article 23-a. With that said, when considering whether one of the two exceptions to Correction Law § 252 applies, respondents were required to consider the factors under Correction Law § 753:
"(a) The public policy of this state . . . to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
"(b) The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.
"(c) The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
"(d) The time which has elapsed since the occurrence of the criminal offense or offenses.
"(e) The age of the person at the time of occurrence of the criminal offense or offenses.
"(f) The seriousness of the offense or offenses.
"(g) Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
"(h) The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public."
Here, the record includes no evidence whatsoever that respondents considered these factors prior to finding petitioner guilty of the second count of misconduct. Indeed, it does not appear that they were even aware of their obligation to consider these factors. The Court finds that such failure constitutes an alternative ground upon which to vacate the determination to terminate petitioner's employment (see Griffin v Sirva, Inc., 29 NY3d 174, 182-183 ; Matter of Acosta v New York City Dept. of Educ., 16 NY3d 309, 316 ).
Briefly, respondents contend that the CPLR article 78 proceeding should be dismissed as against the individual respondents — namely, the Mayor, Curtis, respondent Jim Campbell, First Ward Councilman, respondent Bill Collins, Second Ward Councilman, respondent Jane Reid, Third Ward Councilwoman, respondent Scott Endieveri, Fourth Ward Councilman, respondent Jim Clark, Jr., Fifth Ward Councilman and respondent Dan Hall, Councilman-at-large — all of whom are immune from personal liability in this matter (see Matter of Abbitt v Carrube, 159 AD3d 408, 409 ; Kreamer v Town of Oxford, 91 AD3d 1157, 1159 . Petitioner does not dispute this point in her reply papers and expressly conceded at oral argument that the proceeding should be dismissed as against these individual respondents. The proceeding is therefore dismissed as against them.
Turning now to the appropriate remedy, the Court would typically reinstate petitioner and remit the matter to respondents for a new hearing before an impartial hearing officer. Indeed, remittal is particularly appropriate where — as here — there exist "deficiencies in the record" (Matter of Police Benevolent Assn. of NY State Troopers v Vacco, 253 AD2d 920, 921 , lv denied 92 NY2d 818 ). That being said, petitioner cannot be reinstated at this juncture because her appointment has expired. As a result, there is no need to conduct a new hearing. The only issue before the Court is the damages to which petitioner is entitled for the period of time she would have been reinstated, namely from October 11, 2016 — the date of her termination — to September 30, 2019 — when her appointment expired. As stated above, counsel for petitioner appeared to recognize this during oral argument, indicating that her client is now seeking "a back pay award in lieu of reinstatement."
Counsel for both parties in fact appeared to agree that damages would be the sole issue remaining if the determination to terminate petitioner's employment was vacated. In this regard, counsel for respondents stated as follows during oral argument: "I don't believe there's anything in this record upon which the Court could do anything other than, say, hypothetically, decision was wrong, she's entitled to back pay, et cetera. To be determined at a later date. Parties have so much time to figure it out or we have an evidentiary hearing." Counsel for petitioner then stated that she had "no objection to a damages hearing." --------
Based upon the foregoing, the parties are hereby directed to appear for a hearing on the issue of damages on March 31, 2020 at 10:30 A.M. at the Warren County Courthouse in Lake George, New York.
Therefore, having considered the Verified Petition and Complaint with exhibits attached thereto, dated February 9, 2017; Answer and Objections in Point of Law, dated May 1, 2019; Affidavit of David L. Posner, Esq. with exhibits attached thereto, sworn to May 1, 2019; Memorandum of Law in Support of Objections in Law of David L. Posner, Esq., dated May 1, 2019; Affidavit of Sarah J. Burger, Esq. with exhibits attached thereto, sworn to June 4, 2019; Reply Memorandum of Law of Sarah J. Burger, Esq., dated June 4, 2019, and oral argument having been held on November 13, 2019 with Sarah J. Burger, Esq. appearing on behalf of petitioner and David L. Posner, Esq. appearing on behalf of respondents, it is hereby
ORDERED AND ADJUDGED that the CPLR article 78 proceeding is dismissed as against the individual respondents — namely, Jack Diamond, Mayor, Jim Campbell, First Ward Councilman, Bill Collins, Second Ward Councilman, Jane Reid, Third Ward Councilwoman, Scott Endieveri, Fourth Ward Councilman, Jim Clark, Jr., Fifth Ward Councilman, Dan Hall, Councilman-at-large and Robert Curtis, City Clerk; and it is further
ORDERED AND ADJUDGED that the caption shall hereinafter read as follows: STATE OF NEW YORK SUPREME COURTCOUNTY OF WARREN __________ In the Matter of the Application of LAUREN M. STACK,Index No. 63591
RJI No. 56-1-2017-0112Petitioner-Plaintiff, For a Judgment Pursuant to CPLR article 78
v. CITY OF GLENS FALLS and CITY OF GLENS FALLS COMMON COUNCIL,
Respondents-Defendants. __________ ; and it is further
ORDERED AND ADJUDGED that the petition is granted and respondents' determination to terminate petitioner's employment vacated as arbitrary and capricious; and it is further
ORDERED AND ADJUDGED that counsel for the parties shall appear for a hearing on the issue of damages on March 31, 2020 at 10:30 A.M. at the Warren County Courthouse in Lake George, New York.
The above constitutes the Decision, Order and Judgment of this Court.
The original of this Decision, Order and Judgment has been filed by the Court together with the Notice of Verified Petition dated February 9, 2017 and the above-referenced submissions. Counsel for petitioner-plaintiff is hereby directed to promptly obtain a filed copy of the Decision, Order and Judgment for service with notice of entry upon counsel for respondents-defendants in accordance with CPLR 5513. Dated: February 11, 2020 Lake George, New York __________ ROBERT J. MULLER, J.S.C. ENTER: