This is a proceeding brought pursuant to CPLR Article 78 seeking review of a Civil Service Law Section 75 hearing wherein the petitioner was found guilty of various instances of misconduct and punished by way of demotion. The proceeding began with the filing of a petition seeking review of the Section 75 hearing under both CPLR §7803 (3) and (4). At oral argument held in this court on October 27,2006, counsel for the petitioner withdrew his claim seeking review under CPLR §7803(4) by conceding that there was substantial evidence to justify the findings of misconduct and the penalty imposed (see, Transcript at page 6, lines13-19) Without such concession the Court would have been constrained to order the matter transferred [*2]to a term of the Appellate Division pursuant to CPLR §7804 (g), as the review under CPLR §7804(g) could not be disposed of by considerations of lack of jurisdiction, statute of limitations or res judicata.

The petitioner alleges that the determination by the municipality 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. The relevant facts presented are as follows. On December 17, 2002 charges alleging various instances of misconduct were levied against the petitioner, a 25-year Huntington Town employee who, at the time of the filing of charges served in a supervisory role as a Town Maintenance Crew Leader, also known as Labor Crew Leader II with the Highway Department. He was suspended from employment without pay pursuant to Civil Service Law §75 as of December 17, 2002. Supplemental charges were filed on May 27, 2003.

Commencing July 8, 2002, and on various dates thereafter, a hearing was held before Dennis Ryan, designated by the Commissioner of General Services, Thomas Cavanagh, pursuant to Civil Service Law §75(2), to make a record and recommendation for review and decision. Before the conclusion of the hearing on October 15, 2003, the petitioner was placed on non-occupational disability from his position pursuant to §72 of the Civil Service Law to determine his mental fitness to perform his duties. On January 9, 2004, the petitioner met with Dr. Michael Schwartz, a board certified psychiatrist hired to conduct an independent psychiatric evaluation of the petitioner. Dr. Schwartz was hired by the Town pursuant to the authority granted it under §72 of the Civil Service Law. Dr. Schwartz rendered his report concerning this evaluation on February 3, 2004.

Dr. Schwartz found, among other diagnoses, that the petitioner was not suffering any "acute psychiatric problems." Before rendering his opinion, Dr. Schwartz consulted with Dr. Quinn, a psychologist, and Dr. Lieberman, a psychiatrist, both of whom had been treating the petitioner for depression. Dr. Schwartz also administered the MMPI-2 test to the petitioner. All three mental health professionals agreed that the petitioner had not displayed any evidence of a propensity to violence, and in Dr. Schwartz's opinion, the DSM IV diagnosis was "Major Depression, Single Episode." Dr. Schwartz noted that this condition was in remission and that there was no personality disorder diagnosis. In addition to the above, Dr. Schwartz found that: the petitioner was alert and oriented; he had no abnormalities; he had no cognitive dysfunction; his short term memory was in tact; his language reflected logical thinking; he had no evidence of a depressed mood; he exhibited no evidence of mania, anxiety, psychotic process or delusions; that his insight and judgment were good; and that he acknowledged the inappropriateness of his behavior on the job. Most importantly, Dr. Schwartz found within a reasonable degree of medical certainty, that past instances of misbehavior were not due to any mental illness.

The petitioner's papers also include a letter from Dr. Quinn, dated October 16, 2002, in which he represented that he was treating the petitioner for major depression and that the petitioner was on antidepressant medication. Dr. Quinn opined that individuals with this condition often find it difficult to function at work. His basis for this conclusion was reference to [*3]a World Health Organization source stating that depression is a leading cause of lost days at work. The source is not annexed to the petition. There is also a November 2005 letter from Dr. Quinn, which apparently tries to causally connect the petitioner's depression to the disagreements with his boss. This letter, however, was written subsequent to the final decision by the Hearing Officer in this matter, and is based solely on the self-serving declarations of the petitioner. Finally, there is a note from Dr. Lieberman, dated December 2002, indicating that the petitioner could return to work. There is no document from Dr. Quinn or Dr. Lieberman that opines that the alleged misconduct was due to the petitioner's depression.

In connection with this matter, on July 25, 2005, Hearing Officer Ryan filed his written findings and recommendations with Deputy Director Wanat for final review and determination. On September 8, 2005, Deputy Director Wanat rendered a final determination by accepting all findings and conclusions contained in Ryan's report.

Petitioner's first claim is essentially that the Town knew that the petitioner was suffering from depression before and/or during the hearing on the misconduct charges, and that the bringing of charges by the Town under these circumstances amounted to unlawful workplace discrimination against a person with a disability. The petitioner further argues that the municipality had an obligation to present the evidence of depression in the §75 hearing as a defense or in mitigation of the misconduct charges.

The law in this Department concerning this issue is best stated in Penebre v Dzaluk, 51 AD2d 574, 378 NYS2d 767 [2d Dept 1976]. In that case, the petitioner performed successfully as a police officer for 13 years before his behavior markedly changed. He became depressed and inattentive. The Court held that §75 charges for misconduct were misplaced under these particular circumstances and that they should have proceeded under §72, a fact which was stated by the prosecutor of the §75 charges on the record at the end of the hearing.

In this matter, the disciplinary hearing under §75 had begun when the municipality had decided to do that which was not done in the Penebre case. Here, the Town suspended the hearing and by taking advantage of their rights under §72, the Town sought to determine whether or not the petitioner was suffering from a mental health issue that precluded him from performing his duties. Dr. Schwartz's report makes it very clear that such was not the case. His opinion, given within a reasonable degree of medical certainty, was that "any past misbehavior on the part of Mr. Schlitz would not have been because of a psychiatric condition." This Court has no other admissible evidence before it to contradict Dr. Schwartz's finding.

The petitioner was the one who was evaluated and undergoing treatment. He was represented by counsel at the §75 hearing. Therefore, the party with the most extensive and intimate knowledge of his mental health history was the petitioner himself. There is nothing proffered by the petitioner in the papers before the Court that would suggest he was somehow precluded from presenting the mental health evidence at the hearing, including the calling of the mental health professionals as witnesses. [*4]

Under these particular circumstances, the Court finds that the Town was within its rights to conduct the §72 proceeding and suspend the §75 hearing pending the results. Once the Town had affirmative evidence that the misconduct alleged in the §75 hearing was not due to mental disability, it had the right to move forward under §75. The petitioner submits no authority that suggests it was incumbent upon the Town to actually present the mental health evidence in the §75 hearing, particularly after learning the results of Dr. Schwartz's evaluation.

The Court also notes that even if there was mental health evidence tendered as part of these pleadings introduced before the Hearing Officer, there is nothing to suggest that the outcome would have changed, because none of this evidence causally connects the petitioner's depression to his misconduct. Indeed, the only evidence on this subject comes from Dr. Schwartz who opined within a reasonable degree of medical certainty that the acts of misbehavior perpetrated by the petitioner in the past were not caused by a psychiatric condition. Thus, there is no admissible proof that the petitioner is, or ever was, mentally disabled, and the claim of workplace discrimination perpetrated by the Town by bringing the charges of misconduct against an allegedly disabled person is, therefore, without merit.

The petitioner further claims that the prosecuting attorney, John J. Leo, should have recused himself from prosecution, as he had been the subject of two confrontations by the petitioner during the course of the hearing, one of which resulted in the filing of a criminal charge against the petitioner. These confrontations, however, were not contained in the charges and specifications which were the subject of the hearing. Thus, this is not a situation where Mr. Leo, would be testifying, putting his credibility in issue, or having to ultimately vouch for himself before the Hearing Officer. Neither the petition, nor the papers on which the petition is based, contain any evidence from which the Court can conclude that the petitioner's "procedural due process rights to a fair hearing were impaired," or that the alleged conflict "impaired the integrity of the entire proceeding." Mr. Leo was not the Hearing Officer in these proceedings, nor was he the person making the final determinations. He was merely a lawyer prosecuting the §75 charges. The fact that Mr. Leo was also the Huntington Town attorney does not, a fortiori, translate to a violation of the petitioner's rights (see also, Rine v City of Sherrill,195 AD2d 961, 600 NYS2d 592 [4th Dept. 1993], citing, Anderson v Dolce, 653 F.Supp. 1556 [SDNY 1987]; see also, Withrow v Larkin, 421 US 35, 95 SCt 1456 [1975]).

In Anderson, supra , the hearing officer's participation in two prior disciplinary proceedings as to the employee and the fact that he was a former Corporation Counsel did not disqualify him from acting as a hearing officer concerning that same employee. The petitioner claims that because of the petitioner's two confrontations with Mr. Leo and Mr. Leo's participation in two subsequent disciplinary proceedings as a witness, he should have not prosecuted the petitioner here. There is no evidence in this record to suggest that any facts Mr. Leo may have testified to in the subsequent proceedings were related to the hearing which is the subject of this review, such that the petitioner was prejudiced or deprived of any of his constitutional or statutory rights. In Anderson, the Court found it permissible for the hearing officer to conduct the hearing and make findings and recommendations. In this matter, Mr. Leo was not the fact-finder, he was the attorney charged with the responsibility of presenting the [*5]Town's evidence. There is also no evidence before the Court that Mr. Leo had some personal knowledge or involvement with the charges of misconduct he was prosecuting, nor that the petitioner's rights were in any way prejudiced because of Mr. Leo's position as Town Attorney.

The Court notes that the Commissioner of General Services, Thomas Cavanagh, originally assigned Josephine Jahier as the Hearing Officer in this case. The record shows that Ms. Jahier, however, voluntarily recused herself because she was confronted twice by the petitioner (see, Affidavit , Josephine Jahier, dated March 1, 2006). As a result, Mr. Dennis Ryan was subsequently appointed to hear the case. Now, the petitioner claims the prosecutor should have been excused because of confrontations that the petitioner himself initiated. Granting the petitioner's application under the particular circumstances of this case would give an incentive to other employees charged with misconduct to initiate confrontations with those involved in the case in an effort to have them disqualified. This would, in effect, have the unacceptable result of permitting petitioners to selectively choose those who would be prosecuting and hearing their cases.

The evidence before the Court indicates that Thomas Cavanagh was the Commissioner of General Services who preferred the charges regarding the petitioner, and was designated as a witness because of his involvement with the petitioner regarding those charges. Because of these facts, Mr. Cavanagh designated the Deputy Director of General Services, Richard Wanat, to receive the report and recommendation of the Hearing Officer and make a final determination, including any penalty to be imposed. Mr. Wanat is generally authorized to act in Mr. Cavanaugh's stead in situations when Mr. Cavanaugh is absent or cannot otherwise act (see, Code of Town of Huntington §32-1 [B]). The designation of Mr. Wanat was properly made in writing, which was sent to the petitioner, the union and the petitioner's counsel. There is no evidence to show that any objection was ever raised regarding this designation.

The Appellate Division of this Department held in DiMattina v. LaBua, 262 AD2d 409, 691 NYS2d 145 [2d Dept 1999], that when an officer institutes charges and later testifies at the hearing, he should recuse himself (see also, Martin v Platt, 191 AD2d 758, 594 NYS2d 398 [3d Dept. 1993]; Hicks v Fortier, 117 AD2d 930, 499 NYS2d 236 [3d Dept. 1986]). Those circumstances were present here. Accordingly, the Court finds that Mr. Cavanagh's recusal was appropriate, since he is the one who preferred the charges, and was involved as a witness regarding his involvement with the petitioner concerning the very charges which were the subject of the hearing.

Finally, the petitioner was suspended without pay from the filing of the charges on December 17, 2002 until January 23, 2003. The final penalty imposed on the petitioner by the municipality was demotion. Under Civil Service Law §75 (3), there can only be one penalty. The statute also states, "the time during which an employee is suspended without pay maybe considered as part of the penalty."

Inasmuch as demotion was imposed, a penalty that petitioner conceded at oral argument was appropriate based on the evidence adduced, the Court will consider the third claim of [*6]petitioner to be a request to remit payment of wages for the pre-hearing suspension and will grant the request. Therefore, this matter is remanded to Deputy Director of General Services, Town of Huntington, Richard Wanat, with a direction to remit payment of wages to the petitioner, upon his application for same, for the period of pre-hearing suspension.

The petition in all other respects is dismissed.

So Ordered.

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Peter H. Mayer, J.S.C.