The opinion of the court was delivered by: Jones, J.:
This opinion is uncorrected and subject to revision before publication in the New York Reports.
In this appeal, we are called upon to determine whether persons who have testified in a Civil Service Law § 75 disciplinary hearing are required to disqualify themselves from subsequently acting upon any of the charges related to that hearing. We hold that, because the testimony of the testifying witnesses, concerning the charges levied pursuant to section 75, rendered them personally involved in the disciplinary process, disqualification is necessary.
In July 2007, pursuant to Civil Service Law § 75, the Superintendent of Schools of the Poughkeepsie City School District preferred eight charges of "misconduct and/or incompetence" against petitioner Jeffrey Baker, then Business Manager of respondent Poughkeepsie City School District. The charges alleged, among other things, that petitioner (1) made errors in calculating the former superintendent's gross pay and producing a preliminary budget document; (2) failed to make a required non-elective employer contribution and secure a disability insurance policy; and (3) failed to follow certain directives and competitive bidding procedures. Charge I specifically stated that Mr. Baker failed to follow prior directives from his supervisor when he spoke with Ellen Staino, the Board of Education President of the Poughkeepsie City School District, "in an attempt to gain her support for his candidate of choice for District Treasurer and for a restructuring of Business Office staff positions."
The Board of Education appointed a hearing officer to preside over the disciplinary action. During the hearing, Ellen Staino and another Board member, Raymond Duncan, testified. The School District called Ms. Staino to testify in support of the first charge. Mr. Duncan, who discovered an error made by the petitioner in calculating the District's budget, testified about his personal knowledge concerning certain documents at issue during the hearing and information provided to him by petitioner's supervisor.
The hearing officer reported to the Board his findings and recommended that Mr. Baker be found guilty of the eight charges and that his services be terminated. The Board, including Ms. Staino and Mr. Duncan, adopted the findings and recommendations, and terminated Mr. Baker's employment. Mr. Baker, challenging the Board's determination, commenced this CPLR article 78 proceeding.
Upon transfer to the Appellate Division, the court "grant[ed] the petition, annul[led] the determination, and remit[ted] the matter to the Board, excluding the members of the Board who testified at the disciplinary hearing, for a review of the findings and recommendations of the hearing officer." This Court granted respondents School District and Board of Education leave to appeal from the Appellate Division order, and we now affirm.
Although "[i]nvolvement in the disciplinary process does not automatically require recusal," we recognize that individuals "who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of the hearing officer and from acting on the charges" (Matter of Ernst v Saratoga County, 234 AD2d 764, 767 [3rd Dept 1996] [citations omitted]). Thus, where a witness is testifying during a disciplinary hearing concerning charges levied against an individual, disqualifying himself or herself from reviewing the recommendations of the hearing officer and rendering a final determination is appropriate (see Matter of Nicoletti v Meyer, 42 AD3d 722 [3rd Dept 2007]; see also Matter of Lowy v Carter, 210 AD2d 408, 409 [2nd Dept 1994] [a testifying witness reviewing recommendations and acting upon the charges permits that person to pass upon his or her "own credibility as a witness"]; Matter of Hicks v Fortier, 117 AD2d 930 [3rd Dept 1986]).
Not all testimony will require disqualification. It is only required where the testimony of the official directly supports or negates the establishment of the charges preferred. Such testimony renders the decision-maker personally involved in the disciplinary process and partial. Nevertheless, we observe that disqualification, in a section 75 proceeding, is inappropriate where such person is necessary to effectuate a decision (see McComb v Reasoner, 29 AD3d 795, 799 [2d Dept 2006] [the rule of necessity]; see generally Matter of General Motors Corp.-Delco Prods. Div. v Rosa, 82 NY2d 183 ).
Here, Ms. Staino was extensively involved in the disciplinary process given that petitioner's communication with her was the basis for Charge I. Moreover, she was called to testify for the purpose of sustaining that charge. Mr. Duncan brought to the attention of petitioner's supervisor a discrepancy in a budget prepared by petitioner, which subsequently was included in the charges preferred against petitioner. Likewise, Mr. Duncan's testimony concerning his knowledge of relevant documents that were at issue and certain communications with petitioner's supervisor regarding petitioner's performance demonstrated his personal involvement in the disciplinary process. Moreover, neither of their votes were needed to take disciplinary action. Thus, the Appellate Division properly granted the petition, annulling the determination and remitting the matter to be decided without the testifying board members.
Accordingly, the Appellate Division order should be affirmed, with costs.
Matter of Jeffrey Baker
Poughkeepsie City School District, et
Because in my view Ms. Staino and Mr. Duncan were not required to disqualify themselves from rendering a determination on the hearing officer's recommendation, I respectfully dissent. Unlike the Appellate Division, the majority does not create a per se rule of disqualification, but given the breadth of its determination in light of the facts of this case, it may as well have done so, because there was no ...