Mallia v. Connelie

Appeal by permission from an order of the Supreme Court at Special Term, entered December 18, 1979 in Albany County, in a proceeding pursuant to CPLR article 78, which transferred the matter to a Trial Term of said court for the resolution of factual issues. Petitioner was removed from the list of 1031 those eligible for appointment to the State Police following an examination into her background. Such action may be taken by respondent without a prior administrative hearing, and the sole issue available for judicial review is whether the decision is arbitrary, capricious or an abuse of his discretion (Matter of Shedlock v Connelie, 66 AD2d 433, affd 48 NY2d 943). Since the answer and supporting affidavits in this article 78 proceeding negate petitioner’s claims in that regard, we disagree with Special Term’s ruling that the matter cannot be determined on the pleadings alone. In our opinion, the petition should be dismissed. The reasons advanced by respondent in support of his decision, and challenged by petitioner, were that she did not have suitable moral character and had an unfavorable employment history. Without detailing the underlying circumstances said to justify his conclusions, we have no difficulty in determining that either would ordinarily support respondent’s action, for he has wide discretion in this field and may legitimately demand high standards of fitness (cf. Matter of Shedlock v Connelie, supra). It is petitioner’s burden to prove that those reasons lack a rational foundation. If it could be shown that they were based on rumor or that respondent entirely ignored an attempt to correct mistaken information, the removal of a candidate from the eligible list would be arbitrary or capricious. This does not mean, however, that a narrowly limited judicial review proceeding may be converted into a trial on the merits of a petitioner’s qualifications, or be used as a forum for the examination of respondent’s policies in disciplining those who have received appointments. The judicial function is exhausted when enough facts are developed to establish or refute the rationality of the questioned determination. Petitioner’s former employment record has not been developed; she has submitted a reply affidavit explaining her work activities, and the sources of respondent’s information have not been disclosed. Thus, a legitimate factual dispute might be said to exist if that were the sole reason offered as the basis of her disqualification. Nevertheless, petitioner has failed to deny that in the course of a background interview she acknowledged having affairs with a local police officer and a married State trooper. Whether she was married or separated at the time is of little significance. Respondent could properly credit those admissions and reasonably decide that such behavior exhibited unsuitable moral character. Accordingly, the order should be reversed and judgment should be entered dismissing the petition. Order reversed, on the law, without costs, and petition dismissed. Kane, Staley, Jr., and Casey, JJ., concur.