Opinion
November 10, 1987
Appeal from the Supreme Court, Monroe County, Tillman, J.
Present — Doerr, J.P., Boomer, Pine, Lawton and Davis, JJ.
Determination unanimously annulled on the law without costs and matter remitted to respondents for further proceedings, in accordance with the following memorandum: The findings of the Hearing Officer, adopted by the Fire Commissioners, are supported by substantial evidence. Considering petitioner's persistent conduct and his attitude toward his superior officers culminating in an act of insubordination, and mindful of the deference to be accorded to the judgment of those who must accept responsibility for the operation of the Fire Department, we cannot say that the penalty of dismissal shocks our sense of fairness (see, Matter of Koch v Webster Cent. School Dist. Bd. of Educ., 89 A.D.2d 778, 779, affd 57 N.Y.2d 1028). Nevertheless, "as a matter of propriety and because of his personal involvement" Commissioner Richard Siebert "should have disqualified himself from acting with respect to the charges" (Matter of Edgar v. Dowling, 96 A.D.2d 510, 511; see also, Matter of Pollett v. McGourty, 111 A.D.2d 1023; Matter of Devany v. Rice, 84 A.D.2d 565; Matter of Sander v. Owens, 82 A.D.2d 968). Accordingly, there should be a de novo determination by the Commissioners, without participation by Commissioner Richard Siebert, based on the original hearing record and the report of the Hearing Officer.