Petitioner(s), -against- Motion Seq. No.: 1 Notice of Petition. Respondent(s)

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1 SHORT FROM ORDER SUPREME COURT Present: HON. JOHN P. PETER MASTROCOVI - STATE OF NEW YORK DUNNE, Justice TRIAL/IAS. PART 12 Index No. 585/03 -against- Motion Seq. No.: 1 Notice of Petition NASSAU COUNTY CIVIL SERVICE COMMISSION Petitioner(s), Respondent(s) Motion submission: 3/10/03 The following papers read on this motion: Notice of Motion/ Order to Show Cause Answering Affidavits Memorandum x X X Upon the foregoing papers, it is hereby ordered that Petitioner s application for a judgment annulling determination of the Nassau County Civil Service Commission after Court ordered hearing which reaffirmed the disqualification of Petitioner from becoming a member of the Nassau County Police Department or any other Police Department is decided as follows: FINDINGS OF FAC T Pursuant to an Order of the Court dated January 28, 2002, the 1

2 disqualification of Petitioner from the eligible candidate list for Police Officer was annulled pending a hearing by the Respondent. On July 24, 2002, said hearing was held. Petitioner and his attorney were present and participated in said hearing. After the hearing, in a decision and order dated September 10, 2002, the Respondents disqualified Petitioner from Police Officer Exam The Commission s decision stated that it based its conclusion on several misstatements and outright lies which the Petitioner put forth at various points in the application process, i.e., his medical background. The Petitioner responded to the Questionnaire that he never had a back injury when he has had at least three reported incidents involving his back. Same for questions involving hand and eye trouble. The Commission also cited the Petitioner s denial that he had ever sustained injuries in a motor vehicle accident; his chronic A sick rating; large number of Civilian Review Board complaints lodged against Petitioner, (one of which involved the use of force); firearm discharges and command discipline. Based upon these findings, the Commission determined that Petitioner had displayed a lack of good moral character and would not be an eligible candidate for the Police exam. The Petitioner submitted, in support of his petition, a letter signed by a Sargent and Lieutenant of the NYCPD 100TH Precinct Integrity Control Office, who stated Petitioner never discharged his firearm outside of authorized firearms training sessions. However, he was witness to two firearm discharges. This letter was dated October 7, 2002, after the hearing and decision of the Commission. Petitioner argues that the Connnission s decision was arbitrary 2

3 and capricious. Petitioner also alleges a Commissioner had a conflict of interest but does not identify, explain or support his allegation. Respondent argues that petition should be dismissed on the basis that the disqualification of Petitioner was supported by substantial evidence and was neither arbitrary or capricious. In support of their position, Respondent points out that at the hearing, Petitioner conceded that he failed to disclose at least eight additional line of duty injuries. The additional misrepresentations were not credibly explained by the Petitioner at the hearing according to the Commission s decision. The Respondents also state that during the hearing, a Commissioner, David J. Gugerty clearly disclosed a possible conflict of interest at the hearing and both Petitioner and his attorney stated they had no problem with the Commission continuing with the hearing. Respondents argue that the Petitioner s allegation regarding said Cornmission is without merit and said objection is waived. Based upon the review of record and above-mentioned findings of fact, the Court makes the following conclusions of law: CONCLUSIONS OF.LAW Based upon evidence adduced and presented at the hearing, the Court finds that the determination of the Nassau County Civil 3

4 Service Cornrnission is supported by substantial evidence and was not irrational or arbitrary to warrant judicial intervention. It is well settled that the Commission is afforded wide discretion in determining the fitness of candidates for appointment. (Matter of Metzger v. Nassau County Civil Service Commission, 54 A.D.2d 565). Is the case of hiring of Police Officers, even more discretion is given, since higher standards of fitness and character may be applied. Golimoskiv. Bellamy, 244 A.D.2d 1001; Matter fo Ressav. County of Nassau, 224 A.D.2d 534; Needleman v. County fo Rockland, 270 A.D.2d 423). The Commission cited the Civil Service Law Set, 50(4)(f) and Rule XII of the Rules for the Civil Service of Nassau County, and found that the Petitioner had violated those sections by his misrepresentations and omissions. Those sections allow for disqualification of an applicant who has intentionally made false statements of any material fact in his application. The letter dated October 7, 2002, is not considered since a proceeding under Article 78 is limited to the facts and record adduced before the agency when determination is rendered. (Dearborn Associates v. Environmental Control Board, 144 A.D.2d 556). Petitioner s inclusion of the letter, as additional factual matter, was not before the Commission at the hearing and isn t even dated until well 4

5 after the determination was rendered. Therefore, it was improper and the letter is stricken. Based upon record, the Court concludes that the Commission s determination was supported by substantial evidence and was not arbitrary or capricious. Therefore, it is hereby ordered and adjudged that the petition is dismissed/denied in its entirety. This constitutes the judgment of the Court. It is, so Ordered. Dated: April 15,2003