                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: December 18, 2014                   518726
________________________________

In the Matter of KAREN BIRCH,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

COUNTY OF MADISON et al.,
                    Respondents.
________________________________


Calendar Date:   October 15, 2014

Before:   Lahtinen, J.P., McCarthy, Rose, Lynch and Clark, JJ.

                             __________


     Jonathan Lovett, White Plains, for appellant.

      Hancock & Estabrook, LLP, Syracuse (Janet D. Callahan of
counsel), for respondents.

                             __________


Lahtinen, J.P.

      Appeal from a judgment of the Supreme Court (Dowd, J.),
entered February 3, 2014 in Madison County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent Board of
Supervisors of the County of Madison terminating petitioner's
employment.

      Petitioner began employment in 2006 with respondent County
of Madison as Director of the Probation Department. In 2011,
Joanne Swidowski – who had recently resigned from the Department
– filed a personnel complaint and threatened litigation regarding
actions by petitioner, prompting respondent Board of Supervisors
of the County of Madison to commence an investigation. In
November 2011, petitioner was placed on paid administrative leave
and, in February 2012, she was offered a severance package that
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included, among other things, six months' pay if she voluntarily
resigned. Petitioner rejected the offer and, in April 2012, the
Board brought five disciplinary charges against her pursuant to
Civil Service Law § 75.

      The first three of the five charges arose from
circumstances that occurred when Swidowski, an employee with less
than two years experience, had been assigned to a high profile
case involving Stanley Derdzinski. Derdzinski had a pattern of
domestic violence, stalking and harassment, and he reportedly
obtained personal information about Swidowski and made repeated
threats against her. Petitioner refused to permit Swidowski to
be relieved from the assignment. The three charges pertaining to
Swidowski alleged that petitioner exercised poor judgment
involving a probation officer whose life had been threatened,
failed to remove an officer from writing a presentence report
after a conflict of interest had developed, and created a risk of
violating relevant regulations regarding impartiality and
fairness in a probation investigation and report. The fourth
charge alleged mismanagement of a different workplace incident
and the fifth charge asserted poor leadership of the Department
as reflected by, among other things, high staff turnover during
her short tenure.

      After a hearing over the course of five days, the Hearing
Officer issued a detailed written decision in which he determined
that petitioner was guilty of the first three charges of
misconduct, but that charges four and five had not been proven.
The Hearing Officer recommended a penalty of termination. The
Board adopted the findings of the Hearing Officer and petitioner
was dismissed from employment in May 2013. This proceeding
seeking to annul the Board's determination ensued. Supreme Court
dismissed the petition and petitioner now appeals.

      Petitioner contends that the Board prejudged the charges
against her and engaged in impermissible ex parte communications
regarding those charges.1 "Involvement in the disciplinary


     1
        Petitioner made similar allegations in a federal action
that she commenced while this disciplinary proceeding was
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process does not automatically require recusal" (Matter of Ernst
v Saratoga County, 234 AD2d 764, 767 [1996] [citations omitted]),
and a Board may "serv[e] a dual investigatory and adjudicatory
function" (Matter of Donlon v Mills, 260 AD2d 971, 974 [1999], lv
denied 94 NY2d 752 [1999]). However, "individuals who are
personally or extensively involved in the disciplinary process
should disqualify themselves from reviewing the recommendations
of a Hearing Officer" (Matter of Baker v Poughkeepsie City School
Dist., 18 NY3d 714, 717-718 [2012] [internal quotation marks and
citation omitted]; see e.g. Matter of Botsford v Bertoni, 112
AD3d 1266, 1268-1269 [2013]; Matter of Ashe v Town Bd. of the
Town of Crown Point, N.Y., 97 AD3d 1022, 1022-1023 [2012]; Matter
of Memmelaar v Straub, 181 AD2d 980, 981 [1992]).

      Here, after receiving Swidowski's complaint about
petitioner, the Board retained outside counsel (John Corcoran)
and authorized an independent investigation. As a result of the
investigation, the Board offered petitioner a severance package
if she resigned. The offer was made by the Assistant County
Attorney (Tina Wayland-Smith) in a meeting also attended by
Corcoran, the Chair of the Board (John Becker) and the Chair of
the Criminal Justice Committee of the Board (Darrin Ball).
During the course of making the offer, Wayland-Smith indicated to
petitioner that the Board had lost confidence in her and that she
could not continue in her current job. The offer was rejected
and disciplinary charges ensued. A Hearing Officer was
appointed, and there is no evidence that he was biased or
otherwise unqualified. Petitioner had a full opportunity to
defend against the charges, cross-examine the witnesses and
present her proof. The Hearing Officer found sufficient evidence
as to three of the five charges and recommended termination.
Significantly, Becker and Ball disqualified themselves from
consideration of the Hearing Officer's recommendation because
they had participated in the investigation and the negotiations
to have petitioner resign. The remaining members of the Board
considered the matter over the course of two meetings and


pending, and the defendants in that action successfully moved for
summary judgment (Birch v Becker, 2014 WL 2510565, 2014 US Dist
Lexis 75882 [ND NY 2014]).
                               -4-                518726

ultimately adopted the Hearing Officer's recommendation.

      Hiring an investigator and being aware of the result of
that investigation before bringing charges did not disqualify the
entire Board (see Matter of Donlon v Mills, 260 AD2d at 974).
The two Board members who were actively involved in prehearing
matters pertaining to petitioner did, in fact, disqualify
themselves (compare Matter of Ernst v Saratoga County, 234 AD2d
at 768). Wayland-Smith's general characterization of the Board's
concern about petitioner's continuing employment made during an
effort to settle the matter, which occurred after the
investigation but before a hearing, does not compel the
conclusion that the Board could not fairly consider the evidence
and recommendation resulting from the hearing. Nor does
Corcoran's involvement with the Board following the hearing
reveal a failure by the Board to independently consider the
evidence. In such regard, the Board has a "presumption of
integrity" and petitioner did not overcome that presumption
(Matter of Donlon v Mills, 260 AD2d at 974; see Withrow v Larkin,
421 US 35, 47 [1975]).

      The remaining arguments, which were fully addressed by
Supreme Court, do not require extended discussion. The minor
amendment made to the first charge part way through the hearing,
and at a time when petitioner had ample opportunity to respond to
the amendment, did not deprive her of due process (see Matter of
Sachs v New York State Racing & Wagering Bd., Div. of Harness
Racing, 1 AD3d 768, 771-772 [2003], lv denied 2 NY3d 706 [2004];
Matter of Groff v Kelly, 309 AD2d 539, 540 [2003]).2 Becker, as
Chair of the Board, did not exceed his authority in authorizing
the minor amendment to the charges or in suspending petitioner
for 30 days without pay (see Civil Service Law § 75 [3]). Valid
reasons were set forth in the record regarding the concern for
the safety of one witness as well as a nonparty to support the
decision to close the hearing during the testimony of one witness
(compare Matter of Mosher v Hanley, 56 AD2d 141, 142 [1977]).
The record contains substantial evidence supporting the Board's


     2
        Although an amendment was also made to the fifth charge,
petitioner was found not guilty of such charge.
                              -5-                518726

determination (see Matter of Covert v Schuyler County, 78 AD3d
1309, 1310 [2010], lv denied 16 NY3d 706 [2011]) and the penalty
does not, under the circumstances, "shock[] the judicial
conscience" (Matter of Ellis v Mahon, 11 NY3d 754, 755 [2008];
see Matter of Kuznia v Adams, 106 AD3d 1227, 1231 [2013]). The
remaining arguments have been considered and are unavailing.

     Rose, Lynch and Clark, JJ., concur.


McCarthy, J. (dissenting).

      I respectfully dissent. We should annul the determination
of respondent Board of Supervisors of the County of Madison.
"[W]here, as here, there is evidence indicating that the
administrative decision maker may have prejudged the matter at
issue, disqualification is required" (Matter of Botsford v
Bertoni, 112 AD3d 1266, 1269 [2013]). Tina Wayland-Smith, an
Assistant County Attorney, testified that she and others met with
petitioner, prior to disciplinary charges being proffered, to
offer her a separation from employment agreement. Referring to
her talking points from that meeting, Wayland-Smith testified
that the Board had "lost faith and confidence in [petitioner's]
ability to continue to manage the activities and staff of the
Probation Department" based on evidence adduced from the
investigation. The source of information for that statement was
the Board itself and its Criminal Justice and Government
Operations Committees. When asked if any member of any of those
groups told her "that they did not lose faith and confidence in
[petitioner's] ability," Wayland-Smith testified, "Not that I
recall." Wayland-Smith also testified that the Board had taken a
position on the separation agreement and "it was the feeling of,
at least, the Government Operations Committee and the Board of
Supervisors that [petitioner] could not continue in her . . .
employment based on what the investigation had revealed."

      This testimony indicates that the entire Board not only
believed that the information from the investigation was true,
but also believed that termination was the proper penalty. These
beliefs were formed and expressed to petitioner before any formal
charges were ever brought. Due to this apparent prejudgment of
                              -6-                  518726

the facts by the entire Board, the Board should have recused
itself, and its failure to do so rendered its determination in
petitioner's disciplinary proceeding affected by an error of law
(see Matter of 1616 Second Ave. Rest. v New York State Liq.
Auth., 75 NY2d 158, 161-164 [1990]; Matter of Botsford v Bertoni,
112 AD3d at 1269). For that reason alone, we should not permit
the determination to stand, but instead should "remit the matter
for a de novo review of the present record and the Hearing
Officer's recommendations by a qualified and impartial
individual" (Matter of Botsford v Bertoni, 112 AD3d at 1269; see
Matter of Memmelaar v Straub, 181 AD2d 980, 982 [1992]).



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
