State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 1, 2016 522894 

________________________________

In the Matter of MARK F.

MALLICK,

Appellant,

v

MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF

HOMELAND SECURITY AND

EMERGENCY SERVICES et al.,

Respondents.

________________________________

Calendar Date: October 13, 2016

Before: Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.

__________

Allen & Desnoyers LLP, Albany (George J. Hoffman of

counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Jonathan D.

Hitsous of counsel), for respondents.

__________

Mulvey, J.

Appeal from a judgment of the Supreme Court (McGrath, J.),

entered June 5, 2015 in Albany County, which dismissed

petitioner's application, in a proceeding pursuant to CPLR

article 78, to review a determination of respondent Division of

Homeland Security and Emergency Services denying petitioner's

request for approval of activities outside his employment.
-2- 522894 

Petitioner has been an employee of respondent Office of

Fire Prevention and Control (hereinafter OFPC) since 1984.1

Since 1984, for six weeks each year, petitioner has engaged in

activities outside his employment by privately conducting fire

safety inspections of grade schools. These inspections are

required for the schools to obtain their occupancy permit. 

Pursuant to an ethics policy of respondent Division of Homeland

Security and Emergency Services (hereinafter DHSES), issued in

December 2012, petitioner was required to request approval for

his outside activity. Petitioner submitted a request to his

direct supervisor, who verified that there were "no schedule

conflicts." OFPC's ethics officer later denied petitioner's

request on the ground that petitioner's outside activity is

substantially similar to OFPC's inspection responsibilities

pursuant to Education Law § 807-b and Executive Law § 156-e, and

because "[t]he potential for an actual or apparent conflict [of

interest], pursuant to Public Officers Law §§ 73 and 74,

exists."2 On administrative appeal to DHSES, petitioner's

request was again denied based on the ground that Public Officers

Law §§ 73 and 74 "prohibit [s]tate employees from engaging in

outside activities that have a conflict of interest, or even the

appearance of a conflict of interest, with respect to their

public duties." The denial determined that since Executive Law

§ 156 (13) authorizes OFPC to conduct fire safety inspections of

state-regulated facilities, upon request of the appropriate state

agency (here, the Department of Education), OFPC could be called

upon "to conduct fire inspections" of schools that petitioner had

inspected in his outside activity and this "could be in direct

conflict with OFPC's . . . statutory duties and authorities." 

Petitioner commenced this CPLR article 78 proceeding to set aside

1 In 2010, OFPC, which had previously been a division of

the Department of State, was transferred into the newly formed

respondent Division of Homeland Security and Emergency Services.

2 Respondents' initial denial, based on the premise that

petitioner's outside activity is substantially similar to OFPC

inspection responsibilities pursuant to Education Law § 807-b and

Executive Law § 156-e, is clearly erroneous as these statutes

relate exclusively to public or independent colleges.
-3- 522894 

the determination of DHSES. Supreme Court dismissed his

petition, and he now appeals, arguing that, because OFPC has no

statutory authority to conduct fire safety inspections of grade

schools, no conflict could arise between his outside activity and

his official duties with OFPC, and that the denial of his request

for approval of the requested outside activity was therefore

arbitrary and capricious. 

School authorities are required to ensure that grade school

buildings undergo yearly fire safety inspections, and Education

Law § 807-a lists five categories of authorized parties who may

be engaged to conduct these inspections (see Education Law § 807-

a [1], [3]). OFPC is not included in those five categories. 

"School authorities," as used in this section, refers to the

governing body "in general charge of the operation of any such

school" (Education Law § 807-a [9]). The Commissioner of

Education is not specifically named in the definition. Education

Law § 807-a (6) states that "[t]he [C]ommissioner may inspect or

cause to be inspected . . . the school buildings required to be

inspected by this section." Executive Law § 156 (13) provides

that OFPC may, "[u]pon request of the appropriate state agency,

provide for the fire safety inspection of state or stateregulated facilities with the cooperation and assistance of local

fire inspection personnel."3 Supreme Court found that "Education

Law § 807-a and Executive Law § 156 (13) are not in conflict as

they separately address the abilities and duties of 'school

authorities' and the Commissioner" and "[s]ince the

Commissioner's choice of inspectors is not limited by Education

Law [§] 807-a, . . . the Commissioner . . . is enabled by

Executive Law [§] 156 (13) to request OFPC to conduct such an

inspection." Supreme Court then deferred to respondents'

conclusion that petitioner's outside employment could be subject

to OFPC review, if requested by the Commissioner, and that

petitioner's outside activity is substantially the same as his

employment duties with OFPC. We agree and affirm.

3 We note that Bryant Stevens, the State Fire Administrator

who manages OFPC, admitted that, even though OFPC has offered its

services to the Commissioner, OFPC has never conducted

inspections for grade schools.
-4- 522894 

"[T]he standard of review for this proceeding, which

challenges a determination that was not made after a quasijudicial hearing, is whether [DHSES's] determination was

arbitrary and capricious" (Matter of CDE Elec., Inc. v Rivera,

124 AD3d 1178, 1180 [2015]; see CPLR 7803 [3]). "'An action is

arbitrary and capricious when it is taken without sound basis in

reason or regard to the facts'" (Matter of CDE Elec., Inc. v

Rivera, 124 AD3d at 1180, quoting Matter of Peckham v Calogero,

12 NY3d 424, 431 [2009]). "When a determination is supported by

a rational basis, it must be sustained even if the reviewing

court would have reached a different result" (Matter of CDE

Elec., Inc. v Rivera, 124 AD3d at 1180). 

The record shows that petitioner is the Deputy Chief of

OFPC's western district, one of only 10 deputy chiefs in the

entire state, and he is in charge of a group of fire inspectors. 

Determining whether petitioner's outside activity creates a

conflict of interest, or an appearance of a conflict of interest,

is the kind of determination that requires "knowledge and

understanding of underlying operational practices" such that

respondents' determination should be given deference (Kurcsics v

Merchants Mut. Ins. Co., 49 NY2d 451, 459 [1980]; accord Matter

of Westchester Lib. Sys. v King, 141 AD3d 172, 175 [2016]). 

Contrary to petitioner's contention, Education Law § 807-a (6)

does not require the Commissioner to cause an inspection by the

methods in Education Law § 807-a (3), and the Commissioner is

free of the limitations placed on "school authorities" by

Education Law § 807-a (3). Since the Commissioner is free of

these limitations when choosing an inspector, the Commissioner

may request OFPC to inspect school buildings. Accordingly, if

OFPC is called upon by the Commissioner to inspect a school

previously inspected by petitioner, as part of his outside

employment, petitioner might be put in a position where he was

called upon to review his own work, a classic conflict of

interest (see Reichel v Suffolk County Water Auth., 283 AD2d 475,

476 [2001]). Further, not only would petitioner and his entire

team have to recuse themselves, but, according to the

determination of petitioner's administrative appeal, "it would

necessitate that OFPC make extraordinary and unreasonable

accommodations to avoid actual and perceived conflicts of

interest resulting from the operational overlaps" (see Matter of
-5- 522894 

Speers v New York State Ethics Commn., 209 AD2d 919, 921 [1994],

lv denied 85 NY2d 805 [1995]; see also Public Officers Law §§ 73,

74). 

Even though, as petitioner argues, OFPC lacks statutory

authorization to inspect grade schools (absent a request by the

Commissioner), the appearance of a conflict of interest cannot be

disengaged if OFPC is called on by the Commissioner to inspect a

school previously inspected by petitioner, as part of his outside

employment, and his "offer to recuse himself is insufficient to

guard against, much less remove, the appearance of a conflict of

interest" (Matter of Speers v New York State Ethics Commn., 209

AD2d at 921). Accordingly, respondents had a rational basis to

conclude that a conflict of interest, or an apparent conflict of

interest, could exist. As DHSES's determination had a rational

basis, it cannot be said that its decision was arbitrary and

capricious (see Matter of Pell v Board of Educ. of Union Free

School Dist. No. 1 of Towns of Scarsdale & Mamaroneck,

Westchester County, 34 NY2d 222, 231 [1974]). Petitioner's

remaining arguments, to the extent not specifically addressed,

have been examined and found to be lacking in merit.

Garry, J.P., Egan Jr., Rose and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court