Geberth v. Augustine

In a proceeding pursuant to CPLR article 78 to review three determinations of the Commissioner of Public Safety of the City of Mount Vernon, all dated February 19, 1987, finding three Mount Vernon police officers guilty of misconduct after administrative hearings, the Commissioner of Public Safety, the Deputy Commissioner of Public Safety, and the Chief of Police of the City of Mount Vernon appeal from so much of a judgment of the Supreme Court, Westchester County (Donovan, J.), entered October 22, 1987, as annulled the determinations, and the officers cross-appeal from so much of the same judgment as denied their application for an award of attorney’s fees pursuant to 42 USC §§ 1983 and 1988. The officers also directly appeal from the same administrative determinations of misconduct, all dated February 19, 1987, pursuant to the Charter of the City of Mount Vernon § 120 (L 1922, ch 490). Ordered that the appeal and the cross appeal from the judgment are dismissed, without costs or disbursements, and the judgment is vacated; and it is further, Adjudged that the determinations are modified by vacating the penalties imposed; as so modified, the determinations are confirmed, without costs or disbursements, and the matters are remitted to the appellants-respondents for the imposition of penalties not inconsistent herewith. Initially we note that the appeal and cross-appeal from the judgment of the Supreme Court, Westchester County, rendered in the proceeding pursuant to CPLR article 78 must be dismissed, as the proper vehicle for review of a determination of the Commissioner of Public Safety of the City of Mount Vernon which aggrieves a Mount Vernon police officer is a direct appeal to this court pursuant to Charter of the City of Mount Vernon § 120 (L 1922, ch 490; see, Matter of De Milo v Department of Pub. Safety, 84 AD2d 538). Although procedurally complex, the merits of this matter are quite simple. The evidence established that Officers Theresa Lisella and Paul Merck engaged in off-duty employment without seeking and obtaining permission therefor as required by the applicable rules and regulations of the Mount Vernon Police Department (see, General Municipal Law § 208-d). Equally clear is the fact that Lieutenant Kevin Geberth, who solicited the services of these officers (along with those of Officer Rolland who pleaded guilty to the administrative charge), failed to make certain that these officers had followed [912] proper procedures as he was affirmatively obligated to do. Moreover, in carrying out their unauthorized off-duty responsibilities, which in essence required them to protect an elderly couple from the harassing behavior of a neighbor in Yonkers, Officers Merck and Holland had an encounter with this neighbor which prompted action by Yonkers police. Although the Grand Jury ultimately declined to hand down indictments against these officers, Geberth was aware of these developments as they unfolded yet he failed to immediately report them to his superiors as he was required to do. Our review of the record convinces us that the administrative charges were supported by substantial evidence and thus the determinations of guilt should be confirmed (see, Matter of De Milo v Department of Pub. Safety, supra). The officers’ allegations of impropriety on the part of the Hearing Officer, Corporation Courisel and Commissioner of Public Safety do not persuade us to reach a different conclusion. These allegations are either unsubstantiated or are of such trivial nature as in no way to deny them due process of law (see, Matter of Taub v Pirnie, 3 NY2d 188; Matter of Warmack v Jacobs, 29 Misc 2d 957) Although we are convinced that the administrative determinations were supported by substantial evidence, this matter must be remitted to the Commissioner for the imposition of appropriate penalties. The forfeiture of 15 vacation days as imposed against Officers Lisella and Merck is not authorized under Civil Service Law § 75 (3). The 60-day suspension imposed against Lt. Geberth, during which he is required to report daily to the desk officer, is disproportionate to the offense. A 30-day suspension without the reporting requirement, would be more appropriate. Kooper, J. P., and Sullivan, J., concur.