Mingo v. Pirnie

Hancock, Jr., J. (dissenting).

I would reverse and vacate the actions of respondents, and remand the matter to the Wayne County Civil Service Commission for a hearing to determine whether there is a factual basis for respondents’ actions. In my opinion, the record presents factual questions as to whether the statements relied upon by respondents were “false statement[s] of * * * material fact[s]” intentionally made for the purpose of securing petitioner’s eligibility or appointment by “deception or fraud” (Civil Service Law, § 50, subd 4, pars [f], [g]; see Berns v Civil Serv. Comm., City of N. Y., 537 F2d 714, cert den 430 US 930; Matter of Canarelli v New York State Dept. of Civ. Serv., 44 AD2d 645). Petitioner denies making any false statement in his application. The statements made by petitioner as the reasons for leaving his positions as policeman in the Village of Fairport and security guard at Monroe Community College are not, in the light of the explanations and interpretations set forth in his letter, so clearly contrary to the information given by the police chief of Fairport and the records of Monroe Community College as to warrant the finding by the Civil Service Commission, without a hearing, that petitioner’s statements were intentionally false. Witnesses should have been called on the material issues and petitioner should have been given the right to cross-examine and to testify in his defense. Furthermore, the revocation of petitioner’s appointment and the termination of his employment upon a finding that he was guilty of fraudulent conduct in his application, in my opinion, deprived him not only of a constitutionally protected property interest in the position but of a protected liberty interest as well, because of the attendant stigma and damage to his “good name, reputation, honor [and], integrity” (Board of Regents v Roth, 408 US 564, 573). For these additional reasons, he was entitled to a hearing (Perry v Sindermann, 408 US 593; Board of Regents v Roth, supra, pp 572-578; *986Berns v Civil Serv. Comm.., City of N. Y., supra). It cannot be claimed that the basis for respondents’ action in discharging petitioner was not publicly known, inasmuch as the actions of the Wayne County Civil Service Commission are a matter of public record and petitioner’s employment was officially terminated (because his appointment had been rescinded pursuant to subdivision 4 of section 50 of the Civil Service Law) by a resolution adopted by the village trustees at a public meeting on March 20, 1979. (Appeal from judgment of Monroe Supreme Court — art 78.) Present — Simons, J. P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.