Mayor Should Have Recused Himself From Disciplinary Case

Brian Botsford was employed as a fire inspector by the Village of Endicott, New York Fire Department and was the president of its firefighters union. In May 2009, he was charged with multiple counts of misconduct after engaging in a verbal altercation with Stephen Hrustich, the Fire Chief, concerning Hrustich’s directive that all firefighters undergo a respiratory physical examination. The charges alleged that, upon arriving at the fire station to address the matter, Botsford stated to Hrustich, “What the f* * * is your problem” and, after a verbal warning, stated, “I am the f* * *ing union president and you cannot do a f* * *ing thing to me,” or words to that effect. Shortly after the disciplinary charges were filed, Botsford filed an improper practice charge with the Public Employment Relations Board alleging that the decision to discipline him amounted to anti-union animus.

At the hearing on the disciplinary charges, Botsford acknowledged that he had made the first statement but denied making the second statement, testifying that he instead stated, “I’m the union president and I’m acting in my capacity as the union president.” Crediting the testimony of Hrustich and a firefighter who witnessed the encounter to the effect that Botsford in fact made the second statement, a Hearing Officer found Botsford guilty of the charges and recommended a period of unpaid suspension. John Bertoni, the Village’s Mayor, sustained the findings of guilt but modified the period of unpaid suspension.

During the March 2010 PERB hearing, held shortly after Bertoni had sustained the findings in the disciplinary hearing, Botsford again testified that he did not make the second statement. Based upon this testimony and his testimony at the disciplinary hearing, Botsford was served with another notice in June 2011 charging him with misconduct amounting to perjury and making a false official statement, as well as incompetence for failure to be truthful. Following a hearing, a Hearing Officer issued a recommendation finding Botsford guilty of the charges set forth above and recommending that his employment be terminated. Bertoni adopted the findings and penalty of the Hearing Officer and Botsford appealed.

An appellate court overturned Botsford’s discharge. The Court found that “Mayor Bertoni should have been disqualified from reviewing the Hearing Officer’s recommendations. To be sure, an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges. However, where, as here, there is evidence indicating that the administrative decision maker may have prejudged the matter at issue, disqualification is required.

“In his decision in the first disciplinary proceeding, Bertoni not only agreed with the Hearing Officer’s report, but stated his own opinion that ‘I do not believe Botsford’s account of what was said.’ In an affidavit, Bertoni went one step further. In that document, while explaining the portion of his decision addressing Botsford’s version of the second statement, Bertoni averred that he found that version ‘incredible.’ While the falsity of Botsford’s account of the second statement was not at issue in the second proceeding, as that issue was conclusively determined in the first proceeding, the central issue in the second proceeding was whether Botsford’s false testimony was given knowingly and willingly. Thus, after concluding that he did not believe Botsford’s account of what was said and that Botsford’s version was ‘incredible,’ Bertoni put himself in the position of determining whether the statement that Botsford did in fact make was made knowingly and willfully.

“These questions are inextricably intertwined, and Bertoni’s statements regarding Botsford’s testimony in the first proceeding were such that ‘a disinterested observer may conclude that Bertoni had in some measure adjudged the facts’ surrounding the knowing and willful question in advance of hearing it. Accordingly, Bertoni should have recused himself. Because he did not, respondents’ determination was affected by an error of law. The proper remedy is to remit the matter for a de novo review of the present record and the Hearing Officer’s recommendations by a qualified and impartial individual.”

Botsford v. Bertoni, 112 A.D.3d 1266 (N.Y. A.D. 2013).Cook v. East Greenbush Police Department, 114 A.D.3d 1005 (N.Y. A.D. 2014).