The City of Saratoga Springs ("City") has commenced a hybrid CPLR article 78 proceeding and declaratory judgment action, challenging four determinations of an independent hearing officer made pursuant to Civil Service Law § 75 (Proceeding No. 1). The determinations concern the disposition of certain disciplinary charges made against the City's Fire Chief. Specifically, the City seeks judicial review of the hearing officer's (pre-hearing) dismissal of certain charges/specifications as untimely, as well as those portions of the hearing officer's final decision (made after a hearing) and/or subsequent determinations directing the City to pay (1) the full amount of the hearing officer's fee ($18,000); (2) the Fire Chief's attorney's fees (approximately $100,000); and (3) damages to reimburse the Fire Chief for compensation that he returned to a state agency ($905). The Fire Chief disputes that any grounds exist to vacate the hearing officer's determinations and contends that the City's petition-complaint is not reviewable.

The Fire Chief has filed his own petition seeking to confirm the hearing officer's final decision (Proceeding No. 2). In that proceeding, the City has filed a motion seeking to dismiss Fire Chief's petition for failure to state a cause of action pursuant to CPLR 3211(a)(7). The City contends that the Court lacks jurisdiction to entertain the Fire Chief's petition under CPLR article 75, as those provisions concern arbitration and would require an agreement to arbitrate, which does not exist here. The City also contends that the petition does not contain a single reference to any statutory authority for the Court to issue an order or judgment confirming the final decision nor does it allege facts which would allow the Court to grant any relief.

The parties have not made a motion to consolidate the two cases (see CPLR 602). Nonetheless, for the sake of efficiency, the Court has taken judicial notice of the NYSCEF filings and is issuing the same decision and directives for both cases, as follows:

The Court rejects the parties' attempts to prohibit judicial review. Regarding the challenge to the City's filing, the Fire Chief contends that the City stipulated that "any appeal . . . shall be governed by Civil Service Law § 76" and that this section (Section 76) authorizes only employees to "appeal" (rather than employers). The Fire Chief therefore essentially concludes that the City waived its right to seek judicial review. This interpretation erroneously ignores the purpose and context of the stipulation, as well as the plain language of the statute and the parties' intent.

Far from evidencing some sort of waiver of judicial review, the stipulation cited by the Fire Chief is much more limited. It was between the City and the union representing the Fire Chief. At the time, the union had filed a grievance on behalf of the Fire Chief, challenging the City's ability to terminate the Fire Chief's employment. The stipulation was intended to confirm that the City could proceed with prosecuting the charges under Civil Service Law § 75 despite the grievance. The phrase "any appeal . . . shall be governed by Civil Service Law § 76," when considered in proper context, merely clarifies that the Fire Chief would have to use Section 76 if he desired to appeal from any adverse decision (e.g. he could not use CPLR article 75 or some other procedure set forth in the parties' Collective Bargaining Agreement).^[FN1]

Moreover, even assuming that Section 76 itself authorizes only disciplined employees to file an "appeal" (rather than employers), it would be illogical to conclude (as the Fire Chief contends) that the City agreed in the stipulation to seek judicial review only through a statute (Section 76) that does not authorize it to seek judicial review. Rather, the more logical interpretation is that this sentence regarding Section 76 applies only to the Fire Chief (as Section 76 applies only to him) or, alternatively, that any challenges to the hearing officer's determinations had to proceed according to the procedure set forth in Section 76 (e.g., either by an application to the civil service commission or by an application to the court pursuant to CPLR article 78).

In any event, a waiver "involves the intentional relinquishment of a known right" (East 56th Plaza, Inc. v Abrams, 91 AD2d 1129, 1130 [3d Dept 1983]). Such intent "must be clearly established and cannot be inferred from doubtful or equivocal acts or language, and the burden of proof is on the person claiming the waiver of the right" (id.; see e.g. Cloke v Findlan, 165 AD3d 1545, 1548 [3d Dept 2018]; Orange Steel Erectors v Newburgh Steel Prods., 225 AD2d 1010, 1012 [3d Dept 1996]). At the very least, the stipulation does not clearly evidence that the City was waiving its right to seek judicial review, either pursuant to Civil Service Law § 76 or, alternatively, CPLR article 78. As such, the stipulation is insufficient to constitute a waiver of this right.

The Court has also reviewed the language of the statutes (Sections 75 and 76 of the Civil Service Law) and the bill jacket for the recent amendment to Civil Service Law § 75 (L. 2022, Ch. 674, effective March 1, 2023), which contains a new procedure for the use of an independent hearing officer to resolve disciplinary charges against certain firefighters. Neither of these statutes nor the bill jacket contains any clear and unambiguous intent to preclude an aggrieved employer from seeking judicial review of determinations made by an independent hearing officer under Section 75 of the Civil Service Law (compare Civil Service Law § 76[3] [providing that if an appeal is made to the civil service commission, the "decision of such civil service commission shall be final and conclusive, and not subject to further review in any court"]; NY City Dep't of Envtl. Prot. v NY City Civil Serv. Comm'n, 78 NY2d 318, 322 [1991]). Sections 75 and 76 were therefore not intended to prevent the City from seeking judicial review. Moreover, even in cases "where judicial review is proscribed by statute, the courts [nevertheless] have the power and the duty to make certain that [a hearing officer] has not acted in excess of the grant of authority given . . . by statute or in disregard of the standard prescribed by the legislature" (NY City Dep't of Envtl. Prot., 78 NY2d at 323 [internal quotation marks and citations omitted]; see also Board of Educ. of The Unadilla Val. Cent. Sch. Dist. (McGowan), 97 AD3d 1078, 1080-1081 [3d Dept 2012]). Accordingly, the Court finds that nothing in the stipulation or Section 76 prevents it from considering the City's petition-complaint.

As for the Fire Chief's petition, the City's contention that the Fire Chief has no cognizable claim to enforce the final decision is likewise absurd. Because Civil Service Law § 75(2-a) provides for the procedure for a final decision after a hearing, the Fire Chief is entitled under the statute to seek to confirm and/or enforce the final decision. While one could quibble over whether the Fire Chief's petition was in the proper form at the commencement of the proceeding (as it appeared to rely on CPLR article 75), the Court nonetheless considers the relief requested as appropriate for either a plenary action or a special proceeding (see CPLR 103[c]; 3026; see also CPLR article 4). The City's motion to dismiss the Fire Chief's petition is therefore DENIED.

Turning now to the City's objections, the Court agrees that the hearing officer improperly dismissed various charges as untimely. The limitations period relied upon by the hearing officer (18 months) does not apply "where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime" (Civil Service Law § 75 [4]). "In determining whether the statutory exception applies, [one] must refer—by statutory directive—only to the allegations of misconduct complained of and described in the charges and may not consider any evidentiary proof submitted during later proceedings" (Matter of De Guzman v State of New York Civ. Serv. Commn., 129 AD3d 1189, 1192 [3d Dept 2015] [internal quotation marks and citation omitted]).

Here, the hearing officer concluded (based on proposed, pre-hearing hearsay evidence) that the City could not prove the allegations, without determining whether the allegations themselves would, if proved, constitute a crime. The dismissal of the charges prior to the hearing based on proposed evidence was therefore arbitrary and capricious and contrary to this statutory mandate. Notwithstanding, the dismissed charges/specifications are simply an extension of the other charges heard at the hearing. In addition, the hearing officer's decision and affidavit indicate that another decision (if rendered after another hearing on similar issues before the same hearing officer) would not be any different from the decision reached after the first hearing. As such, the Court declines to direct a hearing on the dismissed charges/specifications, especially considering the unnecessary burden it would impose on the Fire Chief in having to expend additional resources to defend against the same types of allegations/charges that have already been resolved in his favor.

Further, the hearing officer did not act arbitrarily or capriciously, nor did he violate any lawful procedure, by requiring the City to pay his entire fee ($18,000) rather than only half of it. Section 75(2-a) sets forth the procedure for selecting the hearing officer and the manner in which the hearing officer will be paid. It states that the "cost incurred in obtaining such independent hearing officer shall be divided equally between the parties; provided that as may be determined upon the circumstances of the case, the hearing officer shall be authorized to allocate such cost on the basis of the frivolous nature of any claim made or any defense interposed." In order to find a claim or defense to be frivolous, Section 75(2-a) mandates that the hearing officer must find that "(i) the claim or defense was commenced, used or continued in bad faith, solely to delay or prolong the resolution of the action or to harass or maliciously injure another; or (ii) the claim or defense was commenced or continued in bad faith without any reasonable basis in law or fact."

Here, the hearing officer made a finding that the "matter should have been resolved initially in 'good faith' and certainly - and especially - after the receipt by the Commissioner's [*2]Office of the State Police Investigation's finding of no evidence of criminal activity by [the Fire Chief], and the conclusion of the Saratoga County District Attorney's Office based upon the State Police Investigation" (Decision and Award, at pp. 54-55 [emphasis omitted]). The hearing officer further found that the charges were "'frivolous' as so defined in Section 75(2-a) of the Civil Service Law of the State of New York" (Decision and Award, at pp. 54 & 56). These findings were sufficient to satisfy the technical requirements of Section 75(2-a)(ii). In addition, the hearing officer has since clarified his position and reaffirmed his findings in his answer to the petition.^[FN2]

The Court does however find that the hearing officer exceeded the scope of his authority by directing the City to pay the Fire Chief's legal expenses and reimburse the Fire Chief for an amount ($905) that he originally received from and then repaid to a state agency. Contrary to the Fire Chief's contention, Civil Service Law § 75 does not vest the hearing officer with any equity jurisdiction. Rather, the statute (Section 75) contains very limited authority, and the hearing officer may not exceed the authority provided (see Matter of De Guzman v State of New York Civ. Serv. Commn., 129 AD3d 1189 [3d Dept 2015]; Hermance v Pritchard, 87 AD2d 962 [3d Dept 1982]; Carlstrom v Hauser, 54 AD2d 705 [2d Dept 1976]; see also Matter of Kowaleski (New York State Dept. of Correctional Servs.), 16 NY3d 85 [2010]; Wein v New York, 56 NY2d 758 [1982]).

As relevant here, the statute provides, as follows: "If [the employee] is acquitted, he shall be restored to his position with full pay for the period of suspension less the amount of any unemployment insurance benefits he may have received during such period" (Civil Service Law § 75[3]). In addition, as discussed above, the statute (Section 75) also authorizes the hearing officer to allocate the cost of his services if he finds that a claim is frivolous. The statute therefore provides very limited authority and does not authorize an award of attorney's fees or lost compensation from other employment.

The Fire Chief misplaces reliance on the cost allocation provision as authority for the award of his legal fees. "Attorneys' fees are considered an incident of litigation and, unless authorized by statute, court rule, or written agreement of the parties, are not recoverable" (Culinary Connection Holdings, Inc. v Culinary Connection of Great Neck, Inc., 1 AD3d 558, 559 [2d Dept 2003]; see Sage Sys., Inc. v. Liss, 39 NY3d 27, 29-34 [2022]). Unless there is "an explicit statutory or contractual authority" authorizing such fees, "a right to attorneys' fees will not be inferred" (Culinary Connection Holdings, Inc., 1 AD3d at 559; see also Sage Sys., Inc., 39 NY3d at 29-34). These rules cannot be avoided by invoking principles of equity, characterizing conduct as sanctionable, or citing statutes authorizing an award of costs (see e.g. A.G. Ship Maint. Corp. v Lezak, 69 NY2d 1 [1986]; Culinary Connection Holdings, Inc., 1 [*3]AD3d at 558; Hamer v Chessman, 129 AD2d 491 [1st Dept 1987]; Hoffliss Water Corp. v Arne, 88 AD2d 989 [2d Dept 1982]).

Here, the cost allocation provision on its face is limited to the hearing officer's fee, specifically the "cost incurred in obtaining such independent hearing officer" (Civil Service Law § 75[2-a]). This provision contains no authority for a hearing officer to award attorney's fees (see Culinary Connection Holdings, Inc., 1 AD3d at 559; Hoffliss Water Corp., 88 AD2d at 990; see also Hayman v Morris, 37 NYS 2d 884, 891 [Sup Ct, NY County 1942] ["It is generally agreed that the term 'costs' . . . as employed in a statute, ordinarily does not include 'attorneys fees'"]; Schwartz v Durning, 104 Misc 2d 1018, 1019 [Town Ct, Westchester County 1977] [explaining that "costs awarded in an action normally are separate and distinct from award of attorney's fees"]; Caperna v Williams-Bauer Corp., 185 Misc 687, 688 [City Court, NY County 1945] ["the term 'costs' has a well-defined, and, when applied to legal proceedings, universally understood meaning, and that meaning does not include counsel fees" (internal quotation marks and citation omitted)]). Indeed, if the Legislature intended to grant such authority, it could have easily done so (see e.g. Education Law § 3020-a[4][c] [expressly authorizing a hearing officer to award attorney's fees]; Education Law § 3028).

Further, the Court disagrees that the more deferential review standard applicable under CPLR article 75 should be applied. Notwithstanding, even under the standard of review applicable to CPLR article 75, the Court would still vacate these portions of the final decision as unauthorized and beyond the proper scope of the hearing (see e.g. CPLR 7513; Matter of 544 Bloomrest, LLC v. Harding, 202 AD3d 499, 500-501 [1st Dept 2022]; Matter of New York Merchants Protective Co., Inc. v RW Adart Poly, LLC, 108 AD3d 554, 556-557 [2d Dept 2013]; Matter of Matza v Oshman, Helfenstein & Matza, 33 AD3d 493, 494-495 [1st Dept 2006]; Stewart Tabori & Chang, Inc. v Stewart, 282 AD2d 385, 386 [1st Dept 2001]).

It is therefore,

ORDERED and DECLARED that those portions of the final decision of the hearing officer dated June 20, 2025, which awarded legal expenses and damages for lost compensation (as set forth in numbered paragraphs 5 and 7 on page 56) are hereby ANNULLED and VACATED; that the remaining portions of the final decision are CONFIRMED; that the City of Saratoga Springs is not required to comply with the vacated portions of the final decision, but the City shall comply with the remaining terms of the final decision, if not already in compliance, and pay the hearing office for the remaining balance due on his invoice dated June 20, 2025; and it is further

ORDERED that the City's motion seeking to dismiss the Fire Chief's petition is DENIED; and that the Fire Chief's petition (Index No. EF20254280) is DISMISSED as moot in light of the decision rendered on the City's petition.

This shall constitute the Decision & Order of the Court. No costs are awarded to any party. The Court is hereby uploading the original into the NYSCEF system for filing and entry by the County Clerk. The Court further directs the parties to serve notice of entry in accordance with the Local Protocols for Electronic Filing for Saratoga County.

So-Ordered.
Dated: March 23, 2026
at Ballston Spa, New York
HON. RICHARD A. KUPFERMAN
Justice Supreme Court
Enter.

Papers Considered:

All papers filed on NYSCEF in both proceedings