Opinion
10274/06.
Decided September 29, 2006.
Lovett Gould, LLP, Attorneys for Petitioner, White Plains, New York.
Charlene M. Indelicato, Westchester County Attorney, Attorney for Respondents, Michaelian Office Building White Plains, New York.
The following papers numbered 1 to 10 were read on the motion of respondents Thomas Belfiore, as Commissioner-Sheriff of the Westchester County Department of Public Safety, and the County of Westchester, New York ("respondents") to dismiss the proceeding pursuant to CPLR § 3211(a)(7) and 7804(f):
PAPERS NUMBERED
Notice of Petition/Verified Petition 1-2 Notice of Motion 3 Affirmation of Christie L. Magno, Esq., Exhibit A-C4-7 Memorandum of Law in Support of Motion to Dismiss 8 Memorandum of Law in Opposition to Motion to Dismiss 9 Reply Affirmation in Support of Respondents' Motion to Dismiss 10
Upon the foregoing papers, respondents' motion to dismiss is denied.
FACTUAL AND PROCEDURAL BACKGROUND
This is an Article 78 proceeding in which petitioner is seeking to nullify as illegal, arbitrary and capricious a March 31, 2006 determination of respondents which terminated petitioner as a police officer in the Department of Public Safety of the County of Westchester ("DPS") after a disciplinary proceeding. In his petition, petitioner alleges that respondent Commissioner-Sheriff Belfiore ("respondent Belfiore") was petitioner's appointing authority for purposes of New York State Civil Service Law § 75. Petitioner contends that respondent Belfiore adopted and implemented an unwritten "zero tolerance policy" with regard to drug use ( i.e., that any sworn member of the DPS who tests positive for marijuana use must be terminated from his/her position) which was contrary to the written policy that had been adopted by respondent County of Westchester ("County"), which, according to petitioner, "does not contemplate the termination of any such person by reason of their simply testing positive for inter alia marijuana" (Petition at ¶ 4). Petitioner admits that pursuant to a random drug test administered by DPS, petitioner tested positive for marijuana use, but asserts that he immediately and voluntarily submitted to a rehabilitation program as well as to the County's Employee Assistant Program.
Despite petitioner's efforts at rehabilitation, petitioner alleges that respondent Belfiore preferred disciplinary charges against him on January 6, 2006 based on the positive drug test. Petitioner's disciplinary hearing was held on January 23, 2006 before Steven T. Sledzik. It is alleged that Mr. Sledzik was designated the hearing officer by respondent Belfiore. Hearing Officer Sledzik thereafter issued a report and recommendation on March 23, 2006 finding petitioner guilty of the charges and recommending his termination. Petitioner was terminated from his employment pursuant to a letter dated March 31, 2006.
The petition alleges seven causes of action. The first through fourth causes of action and the sixth cause of action allege, with slight variation, that the termination of petitioner was illegal, arbitrary, capricious and otherwise violative of law insofar as DPS's and/or Commissioner Belfiore's unwritten "zero tolerance policy" was unlawfully adopted and implemented, and that it was further ultra vires, null and void because it violated the County's established policy and the actual written rules, regulations and policies of DPS. The fifth cause of action alleges that the punishment imposed was excessive and should be reduced. The seventh cause of action alleges that "the disciplinary hearing was a sham, and its conduct violated Petitioner's right to a fair hearing as required by due process and pertinent law" (Petition at ¶ 30). This cause of action is supported by petitioner's allegations that Mr. Sledzik was biased insofar (1) he was a former Assistant County Attorney for the County, (2) he is one of a select few who regularly serves as a hearing officer at such disciplinary proceedings so that the compensation he receives causes him to rule in favor of the County and/or its officials, and (3) Mr. Sledzik's track record of ruling in favor of the County and/or its officials at every disciplinary hearing, except for one at which the party was dying so the result would have been irrelevant, shows Mr. Sledzik's bias in favor of the County (Petition at ¶ 8). Based on these allegations, petitioner claims that Mr. Sledzik "pre-determined Petitioner's guilt and punishment" prior to the hearing (Petitioner's Memorandum of Law at 6).
Respondents move to dismiss the proceeding arguing that "since the determination was not arbitrary or capricious and the Petition fails to state a cause of action, it should be dismissed in its entirety" (Affirmation of Christie L. Magno, Esq. ("Magno Aff.") at ¶ 3). In support of their motion, respondents assert that at the disciplinary hearing on January 23, 2006, petitioner admitted that he smoked marijuana, that he had notice of the DPS's written Zero Tolerance Policy set forth in General Order No. 14.14.01 (the "DPS policy"), and that he did not dispute that he violated the DPS policy. Respondents further argue that "[a]s shown by the evidence, the use of illegal drugs by members of DPS cannot and will not be tolerated since police officers are to serve and protect the public welfare, to uphold the law, and, in the course of their duties, to effect arrests and respond to emergencies. Petitioner's conduct was particularly egregious since he was a bomb squad technician who handles explosives . . . [Because] Petitioner's actions not only violated . . . [the DPS policy] but also the public trust and the integrity of DPS . . . Respondents sought the maximum penalty allowed by Section 75 — termination" (Magno Aff. at ¶ 5). Given the foregoing, it is respondents' position that "[t]here is ample caselaw supporting the termination of a police officer who tests positive for drugs" (Reply Affirmation of Christie L. Magno, Esq. ("Reply Aff.") at ¶ 7).
With regard to petitioner's claims that the termination decision was illegal, arbitrary, capricious and violative of law based upon an ultra vires unwritten zero tolerance policy, respondents assert the petitioner's claims are "simply wrong" since the evidence will bear out that the termination resulted from a disciplinary proceeding brought pursuant to Civil Service Law Section 75. Furthermore, in support of their contention that DPS's policy was validly adopted, respondents assert that the DPS policy was implemented on October 26, 2005, and was never challenged by the Police Officer's Benevolent Association, Inc. ("PBA") even though "the PBA was on notice of this Policy and it was distributed to its members" (Respondents' Memorandum of Law at 4).
Respondents further argue that "[n]either DPS's policy nor the County's policy dictates the penalty to be imposed" (Respondents' Memorandum of Law at 4). In support of this position, respondents have attached copies of the DPS policy and the County's Drug Free Workplace Policy (the "County policy") as exhibits to the Affirmation of Christie L. Magno, Esq. The DPS policy explains that its purpose is to ensure that members of DPS do not use illegal drugs and that they maintain a high level of performance. In furtherance of this purpose, the DPS policy provides that the use of illegal drugs will subject officers to disciplinary action (up to and including termination). The DPS policy recognizes that while the County policy emphasizes treatment and rehabilitation rather than discipline, the DPS policy mandates that a disciplinary proceeding be initiated upon a positive drug test for its sworn officers.
The thrust of petitioner's opposition is that respondents have gone beyond attacking the sufficiency of the pleadings as found within the four corners of the petition, and have injected evidentiary material not properly considered in connection with a motion to dismiss. Petitioner argues that respondents have improperly referred to facts outside of the pleadings to support their motion to dismiss based on the insufficiency of the petition as a matter of law. Petitioner's opposition also points out that respondents have annexed the DPS policy to their moving papers and have summarized the policy as providing that "you do drugs, you get caught, and you get disciplined," (Respondents' Memorandum of Law at 5) which is not petitioner's claim. Instead, petitioner's claim is that he was terminated as the result of an ultra vires unwritten policy of "You do drugs, you get caught, and you get terminated regardless of the circumstances" (Petitioner's Memorandum of Law at 20).
In reply, respondents argue that "[p]etitioner fails to state what, if any, mitigating factors were not given due consideration. Petitioner was afforded Civil Service Law Section 75 due process and the right to present any mitigating circumstances to the hearing officer" (Reply Aff. at ¶ 6). Respondents further argue that even "assuming arguendo, that there was an unwritten' policy that police officers who test positive for marijuana are required to be terminated, the penalty of termination is not arbitrary or capricious" ( id. at ¶ 8). Finally, respondents argue that "[e]ven if Belfiore adopted an unwritten' policy, that policy cannot dictate a penalty. As discussed in the County Respondents' memorandum of law, Section 75 delineates the penalties that may be imposed upon a finding of guilty after a hearing" ( id. at ¶ 8, n. 3).
LEGAL DISCUSSION Standard of Review
In deciding a motion to dismiss a petition for failure to state a claim under CPLR 3211(a)(7) and 7804(f), the allegations of the petition, and all reasonable inferences that may be drawn from those allegations, must be accepted as true and the petition must be liberally construed in favor of the petitioner ( see Matter of 10 East Realty, LLC v. Incorporated Village of Valley Stream, 17 AD3d 472; Matter of Zaidins v. Hashmall, 288 AD2d 316; Anguita v. Koch, 179 AD2d 454). Although a petitioner may be required to supply evidentiary support for his/her claims in response to a motion for summary judgment under CPLR 3212, he/she is not obligated to do so in response to a pre-answer motion to dismiss under CPLR 3211 and 7804(f). The central question on motions to dismiss is whether the petition's allegations state a legally cognizable claim ( see Held v. Kaufman, 91 NY2d 425). The court's role is simply to determine whether the facts, as alleged, fit into any valid legal theory ( see Sokoloff v. Harriman Estates Dev. Corp., 96 NY2d 409), and the court is not authorized to assess the relative merits of the petition's allegations against the respondent's contrary assertions or to determine whether or not petitioner has produced evidence to support his claims ( see Salles v. Chase Manhattan Bank, 300 AD2d 226).
To the extent respondents are seeking to dismiss this proceeding on the basis of documentary evidence, the standard to be applied to that motion has been aptly described as follows:
"[o]ur scope of review applicable to defendant's CPLR 3211 motion to dismiss is constrained to a determination whether the facts alleged by plaintiffs fit within any cognizable legal theory. . . . In making that determination, the allegations of fact set forth in plaintiffs' . . . [petition] and their submissions in opposition to defendant's motion are accepted as true, liberally construed and given every favorable inference. Dismissal under CPLR 3211(a)(1) is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law. . . .'" ( Hopkinson v. Redwing Constr. Co., 301 AD2d 837, 837-838 [2003], quoting Leon v. Martinez, 84 NY2d 83 [2003]).
Accordingly, for respondents to succeed on their motion to dismiss based upon a defense founded upon documentary evidence, the documentary evidence must be such that it resolves all factual issues as a matter of law, and conclusively disposes of petitioner's claim ( Teitler v. Max J. Pollack Sons, 288 AD2d 302; see also Arnav Indus., Inc. Retirement Trust v. Brown, Raysman, Millstein, Fleder Steiner, LLP, 96 NY2d 300; Wiener v. Lazard Freres Co., 241 AD2d 114).
Petitioner's Allegations that Respondents' Termination Decision
was Arbitrary and Capricious State Legally Cognizable Claims
A cursory review of respondents' moving papers makes clear that it would be inappropriate for this Court, given the current procedural posture of this proceeding, to dismiss this proceeding before respondents file their answer and return and petitioner's optional filing of a reply. A review of the pleadings, giving every favorable inference to petitioner, shows that petitioner has stated cognizable claims based upon his allegations that respondents' decision to terminate petitioner was arbitrary, capricious and violative of law insofar as it was made pursuant to respondent's Belfiore's unwritten zero tolerance policy mandating a police officer's termination based on a failed drug test, which was contrary to the DPS policy and the County policy. Although it appears, contrary to petitioner's assertions, that petitioner was simply subjected to a disciplinary proceeding pursuant to the DPS policy and New York's Civil Service Law § 75, in the context of a motion to dismiss, the Court must accept petitioner's allegations as true. As such, respondents' motion to dismiss petitioner's first through fourth causes of action and sixth cause of action pursuant to CPLR 3211(a)(7) must be denied.
In this regard, the Court recognizes the fragility of petitioner's claims given the numerous decisions upholding the terminations of civil servants (and, in particular, police officers) based on failed drug tests. However, those decisions were either decided by the Appellate Courts based on substantial evidence appearing in the record to substantiate the charge and decision, or were otherwise rendered at a different procedural juncture than that presented in this proceeding ( see, e.g., Matter of Gordon v. Brown, 84 NY2d 574 [1994]; Trotta v. Ward, 77 NY2d 827 [1991], rearg dismissed 79 NY2d 887 [1992]; Matter of Connor v. New York City Police Dept., 22 AD3d 425 [2005] ; Matter of Seeley v. City of New York, 269 AD2d 205 [2000]; Matter of Jackson v. Safir, 261 AD2d 348 [1999]; Matter of Catlin v. Orleans County Highway Dept., 255 AD2d 966 [1998]; Matter of Casey v. New York City Housing Auth., 249 AD2d 230 [1998]; Matter of Allen v. Police Dept. of City of New York, 240 AD2d 229 [1997]; Worel v. Brown, 177 AD2d 446 [1991], lv denied 79 NY2d 755 [1992]; Matter of McCoy v. Gunn, 153 AD2d 863 [1989]).
With regard to respondents' motion to dismiss based on documentary evidence, the only documentary evidence provided by petitioner was the written DPS policy and the County policy. Neither of these policies definitely dispose of petitioner's claims as a matter of law since petitioner is not relying on the DPS written policy. Instead, petitioner is claiming that the unwritten zero tolerance policy adopted by respondent Belfiore violated the DPS policy as well as the County policy. Accordingly, because the documents submitted do not definitively dispose of petitioner's first through fourth causes of action and sixth cause of action, respondents' motion to dismiss these claims pursuant to CPLR 3211(a)(2) must also be denied.
Petitioner's Claim that the Punishment was Excessive States a Cognizable Claim
Petitioner's fifth cause of action repeats and realleges paragraphs 1 to 11 of the petition and claims "[u]nder the premises the punishment imposed upon Petitioner was excessive and must be reduced" (Petition at ¶ 25). This cause of action states a cognizable claim and cannot be dismissed.
In reviewing disciplinary proceedings, courts have the discretion to decide "whether the penalty of dismissal was so disproportionate to the offenses committed as to be shocking to one's sense of fairness" ( Matter of Goudy v. Schaffer, 24 AD3d 764, 765; Matter of Schnaars v. Copiague Union Free School District, 275 AD2d 462). Of course, the prerequisite to such a determination is access to the underlying record of the disciplinary proceedings. Because the return in this proceeding has not yet been filed, it would be premature for this Court to render a decision with regard to whether petitioner's termination was disproportionate to the offense committed, even though there are numerous cases suggesting that termination may well be an appropriate sanction in circumstances similar to petitioner's alleged offense ( see Matter of Gordon v. Brown, 84 NY2d 574; Trotta v. Ward, 77 NY2d 827, rearg dismissed 79 NY2d 887; Matter of Connor v. New York City Police Dept., 22 AD3d 425; Matter of Seeley v. City of New York, 269 AD2d 205; Matter of Casey v. New York City Housing Auth., 249 AD2d 230; Matter of McCoy v. Gunn, 153 AD2d 863). Petitioner's Claim of Hearing Officer Bias States a Cognizable Claim
Courts routinely defer to the administrative agency's punishment determination in cases involving police officers based on the following rationale:
"[i]n matters of police discipline, we must accord great leeway to [respondent's] determinations concerning appropriate punishment, because [it], and not the courts, is accountable to the public for the integrity of the Department" ( Matter of Perry v. Municipal Civ. Serv. Commn. of City of Rochester, 191 AD2d 971, 972 [1993], lv denied 82 NY2d 653 [1993], quoting Matter of Berenhaus v. Ward, 70 NY2d 436, 445 [1987]).
Petitioner's seventh cause of action alleges that "the disciplinary hearing was a sham, and its conduct violated Petitioner's right to a fair hearing as required by due process and pertinent law" (Petition at ¶ 30). This claim is based on petitioner's allegations, inter alia, that Mr. Slezdik's prior position as a County Attorney and interest in being designated by the County to preside over these proceedings, caused Slezdik to be biased in favor of the County.
A civil service position is a property interest of substantial value, protected by the due process clause of the constitution, and should not be taken from an individual without a hearing and opportunity to be heard ( see Matter of Hodella v. Chief of Police of Town of Greenburgh, 73 AD2d 967, lv denied 49 NY2d [1980]; Matter of Johnson v. Director, Downstate Medical Center, 52 AD2d 357, affd 41 NY2d 1061). Furthermore, as pronounced by the New York Court of Appeals, "[i]t is beyond dispute that an impartial decision maker is a core guarantee of due process, fully applicable to adjudicatory proceedings before administrative agencies . . . [and] [n]o single standard determines whether an administrative decision maker should disqualify himself from a proceeding for lack of impartiality" (Matter of 1616 Second Avenue Restaurant, Inc. v. New York State Liq. Auth., 75 NY2d 158, 161).
Given these due process protections, disciplinary determinations are frequently challenged on the ground that the record of the proceeding demonstrates that the hearing officer was biased against petitioner and the determination flowed from this bias (Matter of Hughes v. Suffolk County Dept. of Civ. Serv., 74 NY2d 833; Matter of Martinez v. Scully, 194 AD2d 679). In addition, disciplinary proceedings are also successfully challenged based on facts appearing outside the record of the proceedings which raise an appearance of impropriety over the hearing officer having presided over the proceedings. For example, claims that a hearing officer was involved in the investigation of the disciplinary charges, as well as claims that the hearing officer received additional compensation from one of the parties to the proceeding, have justified the courts' vacating the determinations based on the hearing officers' bias ( see Matter of Syquia v. Board of Educ. of Harpursville Cent. School Dist., 180 AD2d 883, affd 80 NY2d 531; Matter of Edgar v. Dowling, 96 AD2d 510)).
Nevertheless, "there is a presumption of integrity on those serving as adjudicators and hearing officers are presumed to be free from bias" ( Matter of Donlon v. Mills, 260 AD2d 971, 974, lv denied 94 NY2d 752). Furthermore, unsupported allegations of bias are "insufficient to set aside an administrative determination" ( id.). Although petitioner will ultimately bear the burden of proving that the hearing officer's determination was biased ( see Matter of Hegarty v. Board of Educ. of City of New York, 5 AD3d 771, 772), in the context of this motion to dismiss, the allegations of the petition, standing on their own, would appear to state a cognizable claim of bias. Although respondents appear to raise a valid argument that petitioner may have waived this claim by failing to raise it before the hearing officer ( see, e.g., Matter of Kole v. New York State Educ. Dept., 291 AD2d 683), without the return, the Court is unable to make a factual determination in this regard. Accordingly, respondents' motion to dismiss petitioner's seventh cause of action is denied.
Based on the foregoing, respondents' motion to dismiss this proceeding is denied.
The foregoing constitutes the decision and order of this Court.