Austin v. Howard

Gabrielli and Cardamone, JJ. (dissenting).

The petitioner-appellant fireman was accused of wearing brown shoes rather than the black ones prescribed by the Fire Department Dress Code. He was found guilty by respondent Fire Commissioner of this charge and suspended for 60 days without pay (a fine which amounted to approximately $2,000). Petitioner demanded a hearing before an impartial arbitrator as provided in the agreement between the City of Buffalo and the Firefighters’ Association. Following a full and comprehensive hearing, the arbitrator found the charges not sustained and recommended reinstatement without loss of pay. The record reveals that appellant was an outstanding firefighter with no previous disciplinary record. Further, there was ample testimony that the Dress Code was not invariably enforced.

Upon receipt of the impartial arbitrator’s findings and recommendations, respondent, without referring to them, the hearing or the record, merely reaffirmed his previous determination as to petitioner’s guilt and imposed the 60-day suspension without pay.

It thus seems quite plain that the record was ignored. This view is given further credence by respondent’s attorney’s comment upon oral argument that the arbitrator’s report was entitled to “no weight ’ ’.

Such view of the law is clearly erroneous. The rule in this State is set forth in Matter of Kelly v. Murphy (20 N Y 2d 205) which held, under similar circumstances, that an examiner’s report is a part of the record and although not conclusive against being overruled by the Commissioner, is entitled to great weight particularly with respect to the issue of credibility since the Commissioner neither saw nor heard any of the witnesses (Matter of Kelly v. Murphy, supra, pp. 209-210, citing Universal Camera Corp. v. Labor Bd., 340 U. S. 474, 487).

While a court should not ordinarily substitute its judgment for that of the administrative body, it must do so where the administrative determination is not supported by substantial evidence considering the record as a whole (Matter of Burke v. Bromberger, 300 N. Y. 248; Matter of Stork Rest. v. Boland, 282 N. Y. 256).

The severity of the fine (without any evidence that the Dress Code was invariably enforced) is persuasive proof that the determination made by the respondent Fire Commissioner does not find substantial support in the record.

Wither and Henry, JJ., concur with Marsh, J. P.; Gabrielli and Cardamons, JJ., dissent and vote to annul the determination of the Commissioner and reinstate the findings and recommendations of the arbitrator in a memorandum.

Determination confirmed without costs.