Calendar Date: February 14, 2017
M. King, New York State Public Employees Federation, AFL-CIO,
Albany (John D. Svare of counsel), for petitioner.
T. Schneiderman, Attorney General, Albany (Owen Demuth of
counsel), for respondents.
Before: Garry, J.P., Egan Jr., Rose, Devine and Aarons, JJ.
MEMORANDUM AND JUDGMENT
pursuant to CPLR article 78 (transferred to this Court by
order of the Supreme Court, entered in Albany County) to
review two determinations of respondents suspending
petitioner's credential and terminating his employment.
Office of Alcoholism and Substance Abuse Services
(hereinafter OASAS) employed petitioner as an Addictions
Counselor 2 at the Bronx Addiction Treatment Center
(hereinafter BATC). Under the terms of his employment,
petitioner was required to maintain a valid Credentialed
Alcoholism and Substance Abuse Counselor (hereinafter CASAC)
credential, which is issued by OASAS. In 1997, petitioner
received his CASAC credential and renewed it every three
October 2013, the Credentialing Unit's Complaint Review
Committee of OASAS received an official complaint from
BATC's facility director alleging that petitioner
violated certain ethical provisions prohibiting a counselor
from engaging in a sexual relationship or activity with a
client. Specifically, the complaint arose from a report that
petitioner had inappropriate contact with a client while she
was receiving treatment at BATC and after she left for
another treatment center. In May 2014, OASAS notified
petitioner of this complaint and, in a June 2014 letter,
advised him of his right to a hearing, which petitioner
hearing, in a February 2015 report and recommendation, the
Hearing Officer found that petitioner and the client had a
relationship that "far exceeded an appropriate and
professional one" and that "it comprised potential,
and actual, harm" to the client. The Hearing Officer
further found that, while the relationship between petitioner
and the client had "sexual overtones, " it was
"debatable" whether they engaged in an actual
sexual encounter. As a penalty, the Hearing Officer
recommended a one-year suspension of petitioner's CASAC
credential. Respondent Commissioner of Alcoholism and
Substance Abuse Services adopted the Hearing Officer's
recommendation. In a March 2015 letter, OASAS notified
petitioner that his employment was being terminated due to
the suspension of his CASAC credential. Petitioner commenced
this CPLR article 78 proceeding to review respondents'
determinations to suspend his CASAC credential and to
terminate his employment. The matter thereafter was
transferred to this Court. We confirm.
review an agency's determination made following a hearing
to see whether it is supported by substantial evidence
(see CPLR 7803 ; Matter of Doctor v New York
State Off. of Alcoholism & Substance Abuse Servs.,
112 A.D.3d 1020, 1021 ; cf. Matter of Supreme
Energy, LLC v Martens, 145 A.D.3d 1147, 1148 ).
"[S]ubstantial evidence consists of proof within the
whole record of such quality and quantity as to generate
conviction in and persuade a fair and detached fact finder
that, from that proof as a premise, a conclusion or ultimate
fact may be extracted reasonably[, ] probatively and
logically" (300 Gramatan Ave. Assoc. v State Div. of
Human Rights, 45 N.Y.2d 176, 181 ).
disagree with petitioner's contention that the
determination to suspend his CASAC credential was not
supported by substantial evidence. The record indicates that
the relationship between petitioner and the client started
when petitioner caught the client smoking at BATC. Since
then, it progressed to the point where petitioner continued
to provide the client cigarettes, petitioner drove her in his
car, and they met on a beach and a boardwalk to eat. The
client testified that petitioner bought her gifts, including
a glass rose and earrings, and they exchanged personal
messages and pictures via text messaging. Petitioner admitted
that he had regular contact with the client that was
unrelated to his professional relationship with her. In view
of the foregoing, we conclude that respondents'
determination that petitioner engaged in inappropriate
behavior with the client was supported by substantial
evidence (see Matter of Kingston v Gorman, 17 A.D.3d
1079, 1081 ).
though there was insufficient evidence to establish that an
actual sexual encounter between the client and petitioner
occurred, in light of petitioner's inappropriate
behavior, we find that the penalty of suspending
petitioner's CASAC credential does not shock one's
sense of fairness (see generally Matter of Pell v Board
of Educ. of Union Free School Dist. No. 1 of Towns of
Scarsdale & Mamaroneck, Westchester County, 34
N.Y.2d 222, 233 ). To that end, because
petitioner's employment with OASAS required that he hold
a "currently registered and valid credential"
(Mental Hygiene Law § 19.07[d] ), we reject
petitioner's assertion that his termination was
irrational (see generally Matter of Felix v New York City
Dept. of Citywide Admin. Servs., 3 N.Y.3d 498, 505-506
). Nor do we agree with petitioner's argument that
he was denied due process because OASAS did not proceed under
the disciplinary procedures set forth in the collective
bargaining agreement. In this regard, petitioner's
termination from OASAS stemmed from his failure to maintain a
minimum qualification of his employment and, therefore, the
provisions of the collective bargaining agreement did not
apply (see id.; Matter of Lutz v Krokoff,
102 A.D.3d 146, 147 , lv denied 20 N.Y.3d 860');">20 N.Y.3d 860
; Matter of Stolzman v New York State Dept. of
Transp., 68 A.D.3d 1331, 1333 , lv denied
14 N.Y.3d 708');">14 N.Y.3d 708 ).
remaining arguments have been examined and are ...