Opinion
October 27, 1986
Adjudged that the petition is granted to the extent that the determination is annulled, on the law, without costs or disbursements, and the matter is remitted to the Nassau County Department of Labor for a de novo determination by a duly qualified individual who may be designated by the respondents. The determination shall be based upon the original hearing record and shall include written findings of fact showing the grounds for the decision.
This matter was heard before an impartial Hearing Officer, who made findings of fact and recommendations which were disregarded by the respondent Commissioner who then made new findings and imposed a harsher penalty. As a matter of propriety, the Commissioner should have disqualified himself from acting with respect to any of the charges in view of the fact that he instituted the initial investigation and was directly involved and present at at least one of the alleged incidents (see, Matter of Edgar v Dowling, 96 A.D.2d 510, 511; Matter of Devany v Rice, 84 A.D.2d 565; Sinicropi v Milone, 80 A.D.2d 609). Furthermore, the Commissioner's wife was the petitioner's office manager and a material witness in this proceeding. Mangano, J.P., Brown, Rubin and Spatt, JJ., concur.