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515101

515101

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Published by Dennis Yusko

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Published by: Dennis Yusko on May 13, 2013
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State of New York Supreme Court, Appellate Division Third Judicial Department
Decided and Entered: May 9, 2013515101________________________________In the Matter of KATHLEENKUZNIA,Petitioner,vMEMORANDUM AND JUDGMENTJOHN ADAMS, as Director of theSaratoga County ProbationDepartment, et al.,Respondents.________________________________Calendar Date: March 19, 2013Before: Peters, P.J., Rose, Stein and Egan Jr., JJ.__________Luibrand Law Firm, Latham (Kevin A. Luibrand of counsel),for petitioner.Girvin & Ferlazzo, PC, Albany (Jeffrey D. Honeywell ofcounsel), for respondents.__________Egan Jr., J.Proceeding pursuant to CPLR article 78 (transferred to thisCourt by order of the Supreme Court, entered in Saratoga County)to review a determination of respondent Saratoga County Administrator which terminated petitioner's employment.Petitioner began her employment with the Saratoga CountyProbation Department in 1979 and, in 2004, was named as theDepartment's deputy director. In November 2009, Paul Viscusi,then the Department's director, suffered a heart attack and,shortly thereafter, elected to retire. As a result, between thetime of Viscusi's heart attack in November 2009 and the
 
-2-515101appointment in August 2010 of his successor, respondent John Adams, petitioner effectively was in charge of the Department.Prior to serving as the Department's deputy director,petitioner consistently received positive performanceevaluations. In March 2010, however, petitioner received a
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"letter of counseling" from the then administrator of respondentSaratoga County raising a number of concerns regardingpetitioner's leadership, supervisory and time-management skills.In addition to citing petitioner's "lack of attention" to thepreparation and logging of "time sensitive" reports, theadministrator questioned petitioner's participation in thedecision to assign a probation officer with "little [adult]probation experience" to supervise the Intensive DWI InternshipProgram in July 2009 and criticized petitioner's "inadequatesupervision and training" of this individual – a failure thatpurportedly was "compounded by [petitioner's] eventual directive[that such individual not] seek the assistance of other probationofficers" in the Department. Petitioner was encouraged to"immediately make every effort to improve [her] managementskills" and was warned that her failure to do so could result ina loss of employment.In October 2010, petitioner received a second counselingnotification – this time in the form of a memorandum from Adams –citing, among other things, her failure to timely submit variousstate-mandated reports and surveys to the Department's oversightagency. Concerns regarding petitioner's performance subsequentlycame to a head in January 2011, when it was discovered that threeof the files assigned to the DWI probation officer were missing –one of which involved an active probationer who had not beensupervised in any capacity since July 2009. Adams immediately
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According to Viscusi, written performance evaluations
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ceased after 2004 because the then administrator of respondentSaratoga County preferred to personally conduct yearlyevaluations in his office.Adams testified that this discovery was particularly
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troubling, as probationers assigned to the DWI program had an 80%
 
-3-515101conducted an audit of the approximately 140 files assigned tosuch probation officer, which resulted in the discovery ofadditional deficiencies and omissions. As a result, petitioner
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was charged in March 2011 with incompetence and suspended withoutpay. Following a hearing pursuant to Civil Service Law § 75, theHearing Officer issued a 50-page decision, wherein he sustainedthe bulk of the specifications and recommended petitioner's"dismissal from service [as] the only viable solution."Respondent Saratoga County Administrator thereafter adoptedthe Hearing Officer's recommendation, found petitioner guilty ofthe overall charge of incompetence and terminated her employment.In response, petitioner commenced this CPLR article 78 proceedingseeking, among other things, reinstatement as deputy director ofthe Department and back pay. Supreme Court subsequentlytransferred the proceeding to this Court pursuant to CPLR 7804(g). We confirm. "[T]he standard of review to be applied inreviewing an administrative determination made pursuant to CivilService Law § 75 is whether the determination is supported bysubstantial evidence" in the record as a whole (Matter of Lory vCounty of Washington, 77 AD3d 1265, 1266 [2010]; see Matter ofJames v Hoosick Falls Cent. School Dist., 93 AD3d 1131, 1132-1133[2012]; Matter of Covert v Schuyler County, 78 AD3d 1309, 1310[2010], lv denied 16 NY3d 706 [2011]). Credibilitydeterminations lie "solely within the province of the HearingOfficer" (Matter of Perryman v Village of Saranac Lake, 64 AD3d830, 835 [2009]) and, to that end, "this Court may neithersubstitute its own judgment for that of the Hearing Officer norrecidivism rate and, therefore, posed a significant risk topublic safety.This probation officer was counseled, given additional
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training and reassigned to a new supervisor, who conducted acase-by-case review of the probation officer's files and assistedhim in prioritizing the work to be accomplished. As a result ofthese efforts, all of the "major issues" with such files wereresolved within three months.

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