If a hearing officer fails to recommend discipline, would the hearing board or officer be powerless to impose sanctions?

On similar reasoning, the complete absence of recommendations by the hearing officer would also render the removing entity powerless to impose sanctions (see Matter of Blount v. Forbes, supra ). Although there may have been a proper written designation, the removing board or officer would have no report on which to act and, again, its action would necessarily be arbitrary.

A different situation prevails when there is a valid delegation of power and the deputy or other person submits a report on all aspects of the matter except for recommending a penalty. Initially, it must be noted that the removing board or officer is free, within the confines of the evidence, to make new findings and to impose discipline other than that recommended by the hearing officer (see Matter of Simpson v. Wolansky, 38 N.Y.2d 391, 394, 380 N.Y.S.2d 630, 343 N.E.2d 274). Consequently, the failure to recommend discipline is important only to the extent that it omits a suggested starting point from which the removing entity may begin to fashion the appropriate sanction. This "defect" is hardly serious enough to warrant annulling the entire proceeding and directing reinstatement.