I am in complete agreement with the majority that there is no support in the record for respondents’ determination that petitioner was guilty of violating General Municipal Law § 801, General City Law § 3 or unspecified "common law rules”. Further, I agree that petitioner was deprived of the fundamental due process rights to a fair and impartial tribunal, to present relevant evidence on his own behalf and to cross-examine adverse witnesses in the hearings conducted by the Board. Clearly, the determinations must be annulled. However, I am not persuaded that this court is empowered, in the context of a CPLR article 78 proceeding, to make the original factual determination that respondents’ selective enforcement of Glens Falls City Charter § 6.16 required dismissal of the administrative proceedings against petitioner (see, Burke’s Auto Body v Ameruso, 113 AD2d 198, 200-201), particularly on the basis of an incomplete record. Rather, it is my view that the appropriate procedure is to remit the matter for a new hearing on that issue (see, supra, at 201).
*119Casey, J. P., Weiss and Levine, JJ., concur with Harvey, J.; Mercure, J., concurs in part and dissents in part in a separate opinion.
Adjudged that the determinations are annulled, with costs, and petitions granted to the extent of reinstating petitioner with back pay, less any amounts received as unemployment insurance benefits or for employment other than as a member of the Glens Falls City Council during the period of wrongful termination.