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Penalty imposed remanded to appointing authority for reconsideration after court vacates findings of guilt with respect to 2 of 5 disciplinary charges

Penalty imposed remanded to appointing authority for reconsideration after court vacates findings of guilt with respect to 2 of 5 disciplinary charges
Matter of Berger v Board of Fire Commissioners of the Jericho Fire District., 2010 NY Slip Op 02138, Decided on March 16, 2010, Appellate Division, Second Department

The Board of Fire Commissioners of the Jericho Fire District a hearing officer finding Michael Berger guilty of five charges of misconduct and, or, incompetence and terminated his membership as a Volunteer Firefighter Captain with the Jericho Fire District.

Berger appealed and the Appellate Division vacated so much of the determination as found Berger guilty of charges five and six and as imposed a penalty is annulled. The court then dismissed two of the five charges and remitted the matter to the Board of Fire Commissioners for a new determination as to the penalty to be imposed on the petitioner on the remaining three charges.

The three remaining charges, all of which concerned events at one emergency call scene, involved Berger?s violation of his Chief's orders that members wear the Department-issued protective clothing, disobeyed a direct order from his Chief at the call scene, and left the call scene without authorization from a superior officer. The Appellate Division said that the Board?s finding that Berger was guilty of these charges was supported by substantial evidence in the record.

In contrast, the Board's determination that the petitioner was guilty of charges five and six, which relate to an incident on June 19, 2007, is not supported by substantial evidence in the record, as the petitioner was not on duty at the time of that incident.

Accordingly, it annulled so much of the Board?s determination that found Berger guilty of those two charges and remitted the matter to the Board for a new determination as to the penalty to be imposed on Berger with respect to the surviving charges.

Full post as published by New York Public Personnel Law on March 25, 2010 (boomark / email).