Opinion
7495-06.
Decided October 17, 2006.
The Petitioner, Arthur DiPillo, was employed by the County of Westchester, in a civil service position, in the Department of Information Technology. On November 10, 2005, a disciplinary hearing was held, in Petitioner's absence. On January 6, 2006, Petitioner was informed that, effective immediately, his employment with Westchester County's Department of Information Technology was terminated. The Petitioner has now filed the instant Article 78 proceeding arguing that he was never furnished with written notice of the charges preferred against him pursuant to Civil Service Law § 75 and thus, Respondents acted in an arbitrary and capricious manner by unlawfully terminating Petitioner from his employment. Petitioner seeks an order from this Court: vacating the January 6, 2006 Hearing Officer determination, reinstating his position effective January 6, 2006, with retroactive compensation and benefits accrued from January 6, 2006 as well as expungement of the charges, and disciplinary proceedings from his personnel file and Civil Service Commission files.
The crux of the instant Article 78 application is what constitutes proper notice to an employee pursuant to Civil Service Law § 75.
C.P.L.R. § 7803 sets forth the only questions that may be raised in an Article 78 proceeding, specifically:
1. whether the body or officer failed to perform a duty enjoined upon it by law; or
2. whether the body or officer proceeded, is proceeding or is about to proceed without or in excess of jurisdiction; or
3. whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed; or
4. whether a determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence.
Civil Service Law § 75 states that: "[a] person against whom removal or other disciplinary action is proposed shall have written notice thereof and of the reasons therefor, shall be furnished a copy of the charges preferred against him and shall be allowed at least eight days for answering the same in writing." Civil Service Law § 75 does not provide for a specific method for which to furnish an employee with notice of the charges against him. However, it is well settled that a hearing pursuant to Civil Service Law § 75 cannot be said to be a fair hearing without proper notice to the employee.
In Metropolitan Life Insurance Company v. McRae, 157 Misc 2d 452, 454, 596 NYS2d 653, 655 (New York County 1993), the court stated that "the common law presumption of regularity, that a properly stamped, addressed and mailed envelope is presumed to have been received by the addressee, applies to ordinary first class mail. . . . However, where the method of mailing requires the addressee to sign a return receipt, the presumption of receipt which attaches to first class mail is inapplicable, because the mailing cannot be received until the addressee signs for it. It thus cannot be presumed that plaintiff's mailings here gave any notice to defendant."
In DelBello v. New York City Transit Authority, 151 AD2d 479, 542 NYS2d 270 (2nd Dep't 1989), the Appellate Division affirmed the Supreme Court decision to annul and vacate a determination terminating petitioner's employment. In that case, hearing notices were sent to an address which the petitioner had moved from and all notices were returned to respondent unopened and marked "moved-left no address". The Appellate Division found that:
"It is uncontroverted that the petitioner was never apprised of the hearing. He was aware that the appellant could not notify him at the address it had on record. However, the appellant undertook no other steps to notify the petitioner of the pending charges (Civil Service Law § 75). Clearly, mailing the notice to the petitioner's last known address was not notice reasonably calculated, under all the circumstances, to apprise [the petitioner] of the pendency of the [disciplinary proceedings] and afford [him] an opportunity to represent [his] objections.' Rather, the appellant regarded the failure of the petitioner to receive notice of the hearing and charges as his problem'. Clearly, it conducted itself in an arbitrary and capricious manner." Id., at 480-481, at 271-272.
In the instant matter, Petitioner argues that Respondents arbitrarily chose to furnish the notice of charges upon Petitioner by certified mail, a method of service not specifically prescribed in Civil Service Law § 75. Respondents claim that Petitioner was furnished with a copy of the charges as specified in Civil Service Law § 75 by mailing the charges to him and thus, Respondents assert, that they complied with the dictates of Civil Service Law § 75. Respondents do admit, however, that the certified mail sent to Petitioner was returned as "unclaimed". Respondent claims that even though the mailing was returned as unclaimed, such constitutes reasonable notice of the charges against Petitioner and of the disciplinary hearing that was held on November 10, 2005, in Petitioner's absence.
Respondents have furnished the Court with several exhibits in support of their contention that Petitioner received written notice of the charges pending against him. Specifically, among the thirteen exhibits provided, Respondents provide three key exhibits: Exhibit E, which is a copy of the envelope that allegedly included the notice of the charges and was returned by the United States Postal Service as "unclaimed"; Exhibit F, which is a copy of the transcript of the disciplinary hearing held in Petitioner's absence and Exhibit G, the Report and Recommendations of Hearing Officer Peter Korn. The Court shall discuss each of these Exhibits in greater detail below.
Exhibit E is a copy of an envelope, mailed to Petitioner on October 6, 2005, purporting to contain notice of the charges. However, Exhibit E, Respondents' own documentary evidence, supports Petitioner's contention that Petitioner failed to receive the notice of the charges. The copy of the envelope clearly indicates, and it is undisputed by Respondents, that such envelope was returned as "unclaimed" by the United States Postal Service. The envelope also indicates that the letter was mailed to Pleasantville Road, Suite 180, Briarcliff Manor, NY 10501, an address with no building number.
Exhibit F is a copy of the transcript of the disciplinary hearing held on November 10, 2005. It is clear that Respondents, at the time of the hearing, were aware that Petitioner did not receive notice of the hearing or a copy of the charges. On the date of the disciplinary hearing, Respondents' witness informed the Hearing Officer that notice was sent to Petitioner from an address that was given to her — Pleasantville Road, Suite 180, Briarcliff Manor, NY 10501. The Hearing Officer then expressed concern that there was no building number associated with the mailing address, thus, raising questions regarding proper notice given to Petitioner. Respondents' Exhibit F, page 10, line 4-6. At the conclusion of the hearing, Respondents further informed the Hearing Officer that the notice sent to Petitioner was unclaimed and still at the post office. Respondents' Exhibit F, page 28, line 9-24, page 29 line 1-6
Exhibit G is Hearing Officer Korn's Report and Recommendations where he states that "the failure of the Respondent, Union or Union attorney to contact the county in the matter of a long-term employee raises a concern of whether adequate notice was given." Nonetheless, Hearing Officer Korn still found that notice given to Petitioner was appropriate. Respondents' Exhibit G, p. 9.
Respondents claim in their answer that "Petitioner failed and refused service of delivery of the Notice of Charges", yet Respondents fail to provide any factual or documentary evidence in support of the empty assertion that Petitioner was refusing or avoiding service. The only evidence set forth is that the mailing was returned "unclaimed". However, this statement is misleading and disingenuous, at best. When Respondents' witness was questioned by the Hearing Officer as to what additional steps were undertaken by Respondents to provide notice to Petitioner, or the union, the witness admitted that no one spoke to Petitioner, or the union, and that the mailings were the only attempts to inform Petitioner of the charges and of the hearing date. Respondents' Exhibit F, page 30, line 14-24 and page 31 lines 1-10.
Upon review, the Court finds that Respondents own documentary evidence provides sufficient evidence to rebut any presumption of proper mailing. It is clear to this Court that Respondents failed to provide Petitioner with written notice of the charges or of the disciplinary hearing date and that Respondents and the Hearing Officer proceeded with the disciplinary hearing, in Petitioner's absence, knowing that Petitioner had not received proper notice. The Court cannot deem the mailing to be proper when Respondents mailed the charges to an address with no building number and Respondents knew it was returned as "unclaimed". As the Respondents in DelBello v. New York City Transit Authority, the Respondents in this matter also regarded the "unclaimed" letter as Petitioner's "problem" and took no further steps to remedy the fact that Petitioner did not receive notice, regardless of the fact that the notice was mailed to a seemingly "defective" address. See, Matter of Holland v. New York City, et al., 271 AD2d 609, 706 NYS2d 161 (2nd Dep't 2000) (proper mailing presumption rebutted when notice and petition were mailed to wrong address); see also, DelBello v. New York City Transit Authority, supra.
What is even more troubling is that Petitioner could have been served personally at his place of employment, after the notice came back unclaimed. At the very least, the Respondents could have inquired as to Petitioner's address to ensure that the notice was properly sent.
Accordingly, the Court finds that Respondents, and the Hearing Officer, acted in an arbitrary and capricious manner by proceeding with the disciplinary hearing and terminating Petitioner's employment in his absence in violation of the dictates of Civil Service Law § 75 and C.P.L.R. § 7803. There can be no meaningful hearing under Civil Service Law § 75 without proper notice.
The Hearing Officer's determination of January 2006 is vacated, Petitioner is reinstated retroactive to date of termination of January 6, 2006, with full benefits and compensation. Should Respondents wish to proceed with a disciplinary hearing, Petitioner must be given proper notice of the charges and of the disciplinary hearing date; and the hearing to be held, de novo, must be conducted before another Hearing Officer. All other arguments raised by Respondents are deemed to be without merit.
It is abundantly clear from the Hearing Officer's original decision, particularly given his willingness to proceed after acknowledging that service may not have been proper, that Petitioner will not be afforded a fair hearing if this matter is remitted to the same Hearing Officer, who arbitrarily and capriciously proceeded in the first instance. Due process concerns mandate that the matter be heard before another Hearing Officer such that any new hearing is truly " de novo".
This constitutes the Decision and Order of this Court.