Sommers v. Board of Fire Commissioners of the Mastic Beach Fire District

Proceeding pursuant to CPLR article 78 to review a determination of respondent Board of Fire Commissioners of the Mastic Beach Fire District, dated December 24, 1982, which, after a hearing, inter alia, ordered petitioner removed as a member of the Mastic Beach Fire Department. Determination confirmed and proceeding dismissed on the merits, without costs or disbursements. Initially, it is noted that respondent Board of Fire Commissioners of the Mastic Beach Fire District had jurisdiction, pursuant to section 209-Z of the General Municipal Law, to entertain removal proceedings based upon the misconduct of petitioner, a volunteer fireman, who had the status of a life member of the Mastic Beach Fire Department (see Matter of Acker v Board of Fire Comrs., 25 AD2d 282; Matter of Busking v Kronimus, 41 Mise 2d 985, affd 22 AD2d 888). While petitioner raised in his petition the question of whether respondent board’s finding of misconduct was based upon substantial evidence, in his brief, petitioner concedes that a charge of misconduct can be supported by a guilty plea in a prior criminal prosecution. Accordingly, petitioner’s pleas of guilty to the crimes of filing of a false instrument in the second degree and petit larceny, as evidenced by a certified copy of the transcript of the minutes of the plea proceedings and a certified copy of the disposition, were sufficient to support the board’s determination of misconduct (cf. Matter ofPozarny v State of New York, 92 AD2d 954; Matter ofChilson v Board ofEduc., 41 AD2d 739, affd 34 NY2d 222). Furthermore, the penalty of removal imposed herein was not “ ‘ “so disproportionate to the offense[s], in the light of all the circumstances, as to be shocking to one’s sense of fairness” ’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233, quoting from Matter of McDermott v Murphy, 15 AD2d 479, affd 12 NY2d 780). Respondent properly found that petitioner “violated his public trust”, in that the crimes he pleaded guilty to were committed against the Mastic Beach Fire District while petitioner was a fire commissioner of the fire district. The question before us is not “whether we might have imposed another or different penalty”, but whether respondent board “reasonably acted within the scope of its powers. The answer [to the latter question] must be in the affirmative” (Matter of Pell v Board ofEduc., 34 NY2d 222, 238, supra). Finally, we find that the hearing held was not conducted in violation of petitioner’s due process rights. Lazer, J. P., Thompson, Bracken and Rubin, JJ., concur.