Opinion
February 23, 1967
Appeal from the Erie Special Term.
Present — Williams, P.J., Bastow, Goldman, Del Vecchio and Marsh, JJ.
Determination unanimously annulled, without costs, and matter remitted to respondents for further proceedings in accordance with the Memorandum. Memorandum: Petitioner brings this proceeding to review a determination of respondents suspending him for 30 days without pay from his position of police officer for allegedly "using insulting and abusive language while on duty". The suspension order recites that the determination was by the unanimous vote of six members of the Common Council. Both petitioner and respondents apparently presented all available proof in connection with the charges of misconduct. Immediately at the close of the proceedings the President of the Common Council, without polling the other members and without any findings whatsoever, stated "The decision of the Council after going over all the findings and circumstances here, it is the decision of this Committee here that Vincent Mariotti be suspended for 30 days without pay". There was no finding of guilt and this summary action by the President was highly improper and requires that the matter be remitted to the respondents. The statement of charges contained four specific acts of misconduct. The absence of findings and decision as to which of the charges petitioner was found guilty mandates that the matter be remitted to the Common Council for a proper review of the testimony and the making of findings on each of the specifications of the charges ( Matter of Arcuri v. City of Utica, 24 A.D.2d 534). "Determinations subject to judicial review must be based on findings which are sufficient to inform the court and parties as to the findings made, the basis of the findings, and whether the findings are supportable by the evidence" ( Matter of Di Orio v. Murphy, 20 A.D.2d 754).