Klein v. O'Hagan , 70 A.D.2d 514 ( 1979 )

—Determination of respondent-respondent fire commissioner, made on or about August 26, 1977, adjudging petitioner-appellant to have violated rules and regulations of the New York City Fire Department and imposing sanctions thereon, annulled, without costs, on the law, and the matter remanded to respondent-respondent for further proceedings not inconsistent herewith. Petitioner-appellant, a departmental medical officer, was charged with violation of the department’s rules and regulations in that he had disobeyed the order of a departmental officer to proceed to a hospital to examine an injured fireman. We do not reach the question of substantiality of the evidence against petitioner even though there are indications in the record that what was involved was a matter of petitioner’s professional judgment. (Cf. Rosenblum v O’Hagan, 68 AD2d 847.) We do find that, regardless of whether the evidence was sufficient, petitioner was not accorded administrative due process at his hearing, requiring remand and hearing anew before a different hearing officer. Petitioner alleges that, after the first session of the hearing, as he was engaged in putting in a telephone call from a room adjacent to the hearing room, he overheard a conversation between the hearing officer and the departmental prosecutor. The latter is said to have made several statements to the hearing officer to the effect that departmental medical officers were not needed, that they were lazy, that they were paid too much, and that they cheated the taxpayers, to which disparagement the hearing officer is said to have agreed. Assuming that this had occurred, the hearing officer’s disqualification would necessarily have been required, not alone because of an indication of bias, but because of consideration of factors dehors the record. (See Matter of Avery v Rechter, 56 AD2d 963; cf. Matter of Simpson v Wolansky, 38 NY2d 391.) At the next session, petitioner presented his affidavit requesting retirement of the hearing officer, based on a recital of the foregoing. The officer did not deny the occurrence; he denied only that he had any recollection of it, which in itself left open the question of its having occurred. Propriety called for a hearing on the subject, before another officer. However, the accusation was summarily brushed off and a direction given to continue the hearing. These circumstances call for the disposition we have made. Quite obviously the disqualification here discussed is not based on any statute nor is it based on bias either against a person or a class. But the expressions made to the hearing officer which he is said to have approved go to the very merits of the matter he was called upon to adjudicate. This medical officer was charged with what in effect was failure to perform an assigned duty, of the very same nature of the general expression of disparagement concurred in by the supposedly impartial trier of the fact. (See Matter of Rotwein [Goodman], 291 NY 116, 123.) If indeed the expressions were as described, they should not even have been listened to, let alone approved. The very appearance of impropriety is to be avoided by anyone performing the judicial function, even though only having the title of hearing officer. Concur—Sullivan, J. P., Bloom, Lane and Markewich, JJ.