Piper v. Lubin

visitation and inspection were contemplated and were in this case necessary. The effects of petitioner’s omissions in these respects may be considered in connection with certain other specifications of the charge. There was testimony that no training meetings were held in two offices and the commissioner urges with reason that it was petitioner’s duty, if not to conduct them, at least to direct that they be held by the local supervisors. Additional specifications related to petitioner’s failure to enforce compliance by the area offices with directives as to certain records and as to certain filing and statistical procedures; others to his failure to prevent superflous promotional calls; and additional specifications charged petitioner, in three instances, with permitting local offices to carry inaccurate records as to apprentices in training, with failure to advise two offices “ where to center their promotional activities ” and with permitting field men to visit apprentice training classes of which the Department of Education had charge. To certain of these specifications petitioner entered a specific or qualified denial but, in most cases, his answer was that in no ease did he permit any of the acts or omissions charged “ when the matter came properly to my attention ”. It seem unlikely that his subordinates would call their own errors to his attention but it is not clear that personal inspection of these offices, unless in the form of a complete and detailed audit, repeated at intervals, would Lave revealed many of the omissions and irregularities which existed. The core of the charges preferred seems to be the contention that certain omissions and irregularities in two area offices, for the management of which the district representatives, rather than petitioner, were primarily responsible, would not have occurred had petitioner exercised closer supervision, principally by way of inspection visits, and that his omissions in that respect, even with the acquiescence of his superior, constituted grave misconduct, or evidenced a lack of recognition of responsibility so great as legitimately to infer ineompetency warranting dismissal, and this despite the mitigating effect of the uncontradicted evidence of the additional work load carried by petitioner as at least the de facto assistant, and, on occasion, acting State administrator. Upon the record, the commissioner was justified in finding dereliction warranting some measure of punishment. In many cases proven acts or omissions are inherently of such nature as immediately to infer grave misconduct or definite ineompetency. This is not such a case. Here, some factual evaluation was required. The matter of punishment to be passed upon by us, pursuant to the authority lately conferred (Civ. Prac. Act, § 1296, subd. 5-a) cannot be reviewed without at least an expression of conclusions and reasons and a record of factual content sufficient to support them, since the inherent nature of the offenses does not necessarily demand such stringent punishment. (See Matter of Stole v. Board of Regents, 4 A D 2d 361 .) The decision here, while failing to adopt the inferences and conclusions appearing in the hearing officer’s report, made none in their stead beyond a finding of guilt and the categorical and equivocal finding that the “ charges and specifications * * * constitute ineompetency or misconduct or both ”. (Emphasis supplied.) Thus we are unable to ascertain whether it was intended, despite petitioner’s considerable experience and good record, to find such ineompetency as rendered him unfit to perform the duties of the position, or whether the basis of the penalty of dismissal was a finding of misconduct, without factual evaluation of its gravity or effects, so great as to warrant dismissal. Petitioner was entitled to specific findings in these respects and such are necessary to an intelligent review. (Matter of Elite Dairy Prods, v. Ten Eyck, 271 N. T. 488.) Determination annulled and matter remitted to the Industrial Commissioner for further proceedings not inconsistent herewith, without costs. Foster, P. J., Bergan, Halpern and Gibson, JJ., concur.