                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 1, 2016                   522894
________________________________

In the Matter of MARK F.
   MALLICK,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
NEW YORK STATE DIVISION OF
   HOMELAND SECURITY AND
   EMERGENCY SERVICES et al.,
                    Respondents.
________________________________


Calendar Date:   October 13, 2016

Before:   Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.

                             __________


      Allen & Desnoyers LLP, Albany (George J. Hoffman of
counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Jonathan D.
Hitsous of counsel), for respondents.

                             __________


Mulvey, J.

      Appeal from a judgment of the Supreme Court (McGrath, J.),
entered June 5, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent Division of
Homeland Security and Emergency Services denying petitioner's
request for approval of activities outside his employment.
                              -2-                522894

      Petitioner has been an employee of respondent Office of
Fire Prevention and Control (hereinafter OFPC) since 1984.1
Since 1984, for six weeks each year, petitioner has engaged in
activities outside his employment by privately conducting fire
safety inspections of grade schools. These inspections are
required for the schools to obtain their occupancy permit.
Pursuant to an ethics policy of respondent Division of Homeland
Security and Emergency Services (hereinafter DHSES), issued in
December 2012, petitioner was required to request approval for
his outside activity. Petitioner submitted a request to his
direct supervisor, who verified that there were "no schedule
conflicts." OFPC's ethics officer later denied petitioner's
request on the ground that petitioner's outside activity is
substantially similar to OFPC's inspection responsibilities
pursuant to Education Law § 807-b and Executive Law § 156-e, and
because "[t]he potential for an actual or apparent conflict [of
interest], pursuant to Public Officers Law §§ 73 and 74,
exists."2 On administrative appeal to DHSES, petitioner's
request was again denied based on the ground that Public Officers
Law §§ 73 and 74 "prohibit [s]tate employees from engaging in
outside activities that have a conflict of interest, or even the
appearance of a conflict of interest, with respect to their
public duties." The denial determined that since Executive Law
§ 156 (13) authorizes OFPC to conduct fire safety inspections of
state-regulated facilities, upon request of the appropriate state
agency (here, the Department of Education), OFPC could be called
upon "to conduct fire inspections" of schools that petitioner had
inspected in his outside activity and this "could be in direct
conflict with OFPC's . . . statutory duties and authorities."
Petitioner commenced this CPLR article 78 proceeding to set aside


    1
        In 2010, OFPC, which had previously been a division of
the Department of State, was transferred into the newly formed
respondent Division of Homeland Security and Emergency Services.
    2
        Respondents' initial denial, based on the premise that
petitioner's outside activity is substantially similar to OFPC
inspection responsibilities pursuant to Education Law § 807-b and
Executive Law § 156-e, is clearly erroneous as these statutes
relate exclusively to public or independent colleges.
                              -3-                522894

the determination of DHSES. Supreme Court dismissed his
petition, and he now appeals, arguing that, because OFPC has no
statutory authority to conduct fire safety inspections of grade
schools, no conflict could arise between his outside activity and
his official duties with OFPC, and that the denial of his request
for approval of the requested outside activity was therefore
arbitrary and capricious.

      School authorities are required to ensure that grade school
buildings undergo yearly fire safety inspections, and Education
Law § 807-a lists five categories of authorized parties who may
be engaged to conduct these inspections (see Education Law § 807-
a [1], [3]). OFPC is not included in those five categories.
"School authorities," as used in this section, refers to the
governing body "in general charge of the operation of any such
school" (Education Law § 807-a [9]). The Commissioner of
Education is not specifically named in the definition. Education
Law § 807-a (6) states that "[t]he [C]ommissioner may inspect or
cause to be inspected . . . the school buildings required to be
inspected by this section." Executive Law § 156 (13) provides
that OFPC may, "[u]pon request of the appropriate state agency,
provide for the fire safety inspection of state or state-
regulated facilities with the cooperation and assistance of local
fire inspection personnel."3 Supreme Court found that "Education
Law § 807-a and Executive Law § 156 (13) are not in conflict as
they separately address the abilities and duties of 'school
authorities' and the Commissioner" and "[s]ince the
Commissioner's choice of inspectors is not limited by Education
Law [§] 807-a, . . . the Commissioner . . . is enabled by
Executive Law [§] 156 (13) to request OFPC to conduct such an
inspection." Supreme Court then deferred to respondents'
conclusion that petitioner's outside employment could be subject
to OFPC review, if requested by the Commissioner, and that
petitioner's outside activity is substantially the same as his
employment duties with OFPC. We agree and affirm.


    3
        We note that Bryant Stevens, the State Fire Administrator
who manages OFPC, admitted that, even though OFPC has offered its
services to the Commissioner, OFPC has never conducted
inspections for grade schools.
                              -4-                522894

      "[T]he standard of review for this proceeding, which
challenges a determination that was not made after a quasi-
judicial hearing, is whether [DHSES's] determination was
arbitrary and capricious" (Matter of CDE Elec., Inc. v Rivera,
124 AD3d 1178, 1180 [2015]; see CPLR 7803 [3]). "'An action is
arbitrary and capricious when it is taken without sound basis in
reason or regard to the facts'" (Matter of CDE Elec., Inc. v
Rivera, 124 AD3d at 1180, quoting Matter of Peckham v Calogero,
12 NY3d 424, 431 [2009]). "When a determination is supported by
a rational basis, it must be sustained even if the reviewing
court would have reached a different result" (Matter of CDE
Elec., Inc. v Rivera, 124 AD3d at 1180).

      The record shows that petitioner is the Deputy Chief of
OFPC's western district, one of only 10 deputy chiefs in the
entire state, and he is in charge of a group of fire inspectors.
Determining whether petitioner's outside activity creates a
conflict of interest, or an appearance of a conflict of interest,
is the kind of determination that requires "knowledge and
understanding of underlying operational practices" such that
respondents' determination should be given deference (Kurcsics v
Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]; accord Matter
of Westchester Lib. Sys. v King, 141 AD3d 172, 175 [2016]).
Contrary to petitioner's contention, Education Law § 807-a (6)
does not require the Commissioner to cause an inspection by the
methods in Education Law § 807-a (3), and the Commissioner is
free of the limitations placed on "school authorities" by
Education Law § 807-a (3). Since the Commissioner is free of
these limitations when choosing an inspector, the Commissioner
may request OFPC to inspect school buildings. Accordingly, if
OFPC is called upon by the Commissioner to inspect a school
previously inspected by petitioner, as part of his outside
employment, petitioner might be put in a position where he was
called upon to review his own work, a classic conflict of
interest (see Reichel v Suffolk County Water Auth., 283 AD2d 475,
476 [2001]). Further, not only would petitioner and his entire
team have to recuse themselves, but, according to the
determination of petitioner's administrative appeal, "it would
necessitate that OFPC make extraordinary and unreasonable
accommodations to avoid actual and perceived conflicts of
interest resulting from the operational overlaps" (see Matter of
                              -5-                  522894

Speers v New York State Ethics Commn., 209 AD2d 919, 921 [1994],
lv denied 85 NY2d 805 [1995]; see also Public Officers Law §§ 73,
74).

      Even though, as petitioner argues, OFPC lacks statutory
authorization to inspect grade schools (absent a request by the
Commissioner), the appearance of a conflict of interest cannot be
disengaged if OFPC is called on by the Commissioner to inspect a
school previously inspected by petitioner, as part of his outside
employment, and his "offer to recuse himself is insufficient to
guard against, much less remove, the appearance of a conflict of
interest" (Matter of Speers v New York State Ethics Commn., 209
AD2d at 921). Accordingly, respondents had a rational basis to
conclude that a conflict of interest, or an apparent conflict of
interest, could exist. As DHSES's determination had a rational
basis, it cannot be said that its decision was arbitrary and
capricious (see Matter of Pell v Board of Educ. of Union Free
School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,
Westchester County, 34 NY2d 222, 231 [1974]). Petitioner's
remaining arguments, to the extent not specifically addressed,
have been examined and found to be lacking in merit.

     Garry, J.P., Egan Jr., Rose and Devine, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
