IN RE: Ronald MALLOCH

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Ronald MALLOCH, Petitioner, v. BALLSTON SPA CENTRAL SCHOOL DISTRICT et al., Respondents.

Decided: April 23, 1998

Before CARDONA, P.J., and WHITE, PETERS, SPAIN and CARPINELLO, JJ. Nancy E. Hoffman, Civil Service Employees Association (Pamela Baisley, of counsel), Albany, for petitioner. Ruberti, Girvin & Ferlazzo (Jeffrey D. Honeywell, of counsel), Albany, for respondents.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Saratoga County) to review a determination of respondents which found petitioner guilty of misconduct and terminated his employment as a school bus driver.

In April 1996 respondent Ballston Spa Central School District (hereinafter the District) brought charges against petitioner, a school bus driver, for incompetence and misconduct based upon a series of incidents that occurred in March 1996.   A hearing was held before a Hearing Officer in June 1996 after which petitioner was found guilty of incompetence and misconduct on each of six specific charges stemming from observations of petitioner's driving between March 12, 1996 and March 27, 1996.   Based upon his conclusions, the Hearing Officer recommended that petitioner's employment be terminated.   By letter dated September 12, 1996, the District advised petitioner that respondent Board of Education of the Ballston Spa Central School District accepted the Hearing Officer's findings and recommendations and that petitioner was dismissed.   Petitioner thereafter commenced this CPLR article 78 proceeding to annul the determination and the proceeding was then transferred to this court pursuant to CPLR 7804(g).

 We confirm.   In reviewing an administrative determination, a court must consider whether, based on the entire record, the decision is supported by substantial evidence (see, Matter of Lahey v. Kelly, 71 N.Y.2d 135, 524 N.Y.S.2d 30, 518 N.E.2d 924;  Matter of Doolittle v. McMahon, 245 A.D.2d 736, 737-738, 665 N.Y.S.2d 739, 741).   A decision is proper if it results from a hearing based on evidence from which an “inference of the existence of the fact found may be drawn reasonably” (Matter of Stork Rest. v. Boland, 282 N.Y. 256, 273, 26 N.E.2d 247;  see, Matter of Welcher v. Sobol, 227 A.D.2d 770, 772, 642 N.Y.S.2d 370), and in which the facts provide a rational basis for the finding (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183).  Although a court may review the proceeding to determine if there was enough evidence, it may not weigh the evidence and substitute its own judgment even in light of conflicting testimony (see, Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443, 522 N.Y.S.2d 478, 517 N.E.2d 193;  Matter of Sowa v. Looney, 23 N.Y.2d 329, 336, 296 N.Y.S.2d 760, 244 N.E.2d 243;  Matter of Heslop v. Board of Educ., Newfield Cent. School Dist., 191 A.D.2d 875, 877, 594 N.Y.S.2d 871).   Moreover, “compliance with the technical rules of evidence is not mandated in [administrative] hearings” (Matter of Heslop v Board of Educ., Newfield Cent. School Dist., supra, at 877, 594 N.Y.S.2d 871).

 Here, respondents presented testimony from, inter alia, Cheryl Dalton, then acting director of transportation for the District, Carol Manley, a bus driver/driver trainer employed by the District, Tim Bonk, the coordinator of facilities and operations for the District, and Roger Gorham, Superintendent of Schools.   Dalton testified that on March 12, 1996 petitioner, while driving his school bus, cut her off and failed to stop or look to his right and left.   On March 15, 1996, Bonk observed petitioner make a “short stop” and exceed the speed limit by 10 or more miles per hour on two separate occasions.   Testimony adduced at the hearing also indicated that on March 18, 1996, petitioner exceeded the posted speed limit during his midmorning run and failed to fully stop at a stop sign;  on March 25, 1996 the same witness, who checked the accuracy of her speedometer, again observed petitioner exceed the speed limit by between 5 and 11 miles per hour;  on March 26, 1996 petitioner was observed driving 10 miles above the speed limit, making incomplete stops, and waiting too long to activate his turn signal;  and on March 27, 1996 petitioner was observed making a wide right-hand turn causing him to enter the opposite lane of traffic.   All of these observations were made by staff members in supervisory positions, and the Hearing Officer credited those firsthand observations.

Petitioner presented evidence that he did not know that he cut Dalton off because his view was obstructed by a tree and by the bus itself;  that the brakes could have been “spongy”;  that the incomplete stop was somewhat routine;  that the failure to signal in a timely fashion could not be a violation because the distance requirement of 150 feet was only a suggested guideline;  that the wide turn was often unavoidable at the particular intersection;  and that the speeding violations were impossible to prove without professional radar equipment and the testimony of a qualified expert.

Clearly, the Hearing Officer was presented with an issue of credibility which he was free to, and did, resolve against petitioner (see, Matter of Loffredo v. Sobol, 195 A.D.2d 757, 759, 600 N.Y.S.2d 507, lv. denied 82 N.Y.2d 658, 604 N.Y.S.2d 557, 624 N.E.2d 695;  Matter of Edelman v. Sobol, 174 A.D.2d 896, 897, 571 N.Y.S.2d 592, appeal dismissed 78 N.Y.2d 1006, 575 N.Y.S.2d 456, 580 N.E.2d 1059).   Upon our review of the record, we conclude that respondents' determination was rational and supported by substantial evidence.

We also conclude that petitioner's reliance on the recent Court of Appeals decision in Matter of Miller v. De Buono, 90 N.Y.2d 783, 666 N.Y.S.2d 548, 689 N.E.2d 518, for the proposition that the proper standard of review in this matter is a fair preponderance of the evidence rather than substantial evidence, is misplaced.   There, unlike here, a nurse's aide was disciplined for patient abuse and her name was placed in a State Nurses Aide Registry that was available to the public;  she was also prohibited from further employment as a nurse's aide (id., at 787, 666 N.Y.S.2d 548, 689 N.E.2d 518).   The Court of Appeals held “that the inclusion and dissemination of information contained [in a register] which harms not only an individual's good name, integrity or standing in the community, but also affects that individual's present employment or effectively forecloses possible future employment opportunities is sufficient to constitute ‘stigma plus' and invoke the procedural protection of the Due Process Clause” (id., at 791, 666 N.Y.S.2d 548, 689 N.E.2d 518;  see, Matter of Lee TT. v. Dowling, 87 N.Y.2d 699, 707-709, 642 N.Y.S.2d 181, 664 N.E.2d 1243).   Here, such is not the case;  petitioner is not barred from seeking employment as a bus driver in another school district or from trying to get another driving-related job.   Moreover, petitioner is not subject to a registry and the information about the School District's charges and the disposition is not readily accessible to the public at large, and thus does not trigger the “stigma plus” analysis (see, Matter of Lee TT. v. Dowling, supra, at 708, 642 N.Y.S.2d 181, 664 N.E.2d 1243);  therefore, petitioner's employment prospects as a driver have not been foreclosed (see, Matter of Miller v. De Buono, supra, at 792, 666 N.Y.S.2d 548, 689 N.E.2d 518;   Matter of Lee TT. v. Dowling, supra, at 709, 642 N.Y.S.2d 181, 664 N.E.2d 1243).

 Finally, we reject petitioner's contention that his penalty of termination was inappropriate.   It is well settled that a penalty will not be disturbed unless it is so severe and disproportionate to the offense that it shocks one's sense of fairness (see, Matter of Pell v. Board of Educ., 34 N.Y.2d 222, 233-234, 356 N.Y.S.2d 833, 313 N.E.2d 321;  Matter of Smith v. Board of Educ. of Taconic Hills Cent. School Dist., 235 A.D.2d 912, 914, 652 N.Y.S.2d 666;  Matter of Heslop v. Board of Educ., Newfield Cent. School Dist., 191 A.D.2d 875, 878, 594 N.Y.S.2d 871, supra ).   Here, petitioner's personnel records are replete with numerous incidents of traffic infractions and accidents.   Moreover, petitioner was found guilty of six separately charged safety violations based on observations of his driving on six separate occasions within a short period of time.   We therefore decline to disturb respondents' determination (see, Matter of Heslop v. Board of Educ., Newfield Cent. School Dist., supra, at 877, 594 N.Y.S.2d 871;  Matter of Robbins v. Malone Cent. School Dist., 182 A.D.2d 890, 892, 581 N.Y.S.2d 493, appeal dismissed 80 N.Y.2d 825, 587 N.Y.S.2d 907, 600 N.E.2d 634).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

SPAIN, Justice.

CARDONA, P.J., and WHITE, PETERS and CARPINELLO, JJ., concur.

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