Opinion
2015-10-9
In the Matter of Brian D. GAFFNEY, Petitioner, v. Sharon ADDISON, City Manager, Respondent.
Bousquet Holstein, PLLC, Syracuse (Lawrence M. Ordway, Jr., of Counsel), for Petitioner. Slye & Burrows, Watertown (Robert J. Slye of Counsel), for Respondent.
Bousquet Holstein, PLLC, Syracuse (Lawrence M. Ordway, Jr., of Counsel), for Petitioner.Slye & Burrows, Watertown (Robert J. Slye of Counsel), for Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN AND DeJOSEPH, JJ.
MEMORANDUM:
Petitioner commenced this CPLR article 78 proceeding seeking to annul a determination finding him guilty of misconduct based upon actions constituting insubordination and terminating his employment as chief operator of the water treatment plant for the City of Watertown (City). The charges arose when petitioner's supervisor made a certain operational decision, and petitioner reported the decision to the New York State Department of Health (DOH) without notifying his supervisor, thereby allegedly violating prior directives concerning the chain of command. According to petitioner's supervisor, petitioner subsequently stated that he had intended for DOH to “intervene” in the operational decision, and that, given the same circumstances, he would take the same action again in reporting the decision to DOH.
Contrary to petitioner's contention, the determination that he engaged in insubordination is supported by substantial evidence ( see Matter of Longton v. Village of Corinth, 57 A.D.3d 1273, 1274, 869 N.Y.S.2d 682, lv. denied13 N.Y.3d 709, 2009 WL 3379123; Matter of Scazafavo v. Erie County Water Auth., 30 A.D.3d 1034, 1035, 816 N.Y.S.2d 642, lv. denied7 N.Y.3d 714, 824 N.Y.S.2d 606, 857 N.E.2d 1137), i.e., by “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 180, 408 N.Y.S.2d 54, 379 N.E.2d 1183). In addition, substantial evidence supports the finding of the Hearing Officer, which respondent adopted, that petitioner failed to make a good faith effort to notify the City of the information to be disclosed and, therefore, petitioner's disclosure to DOH was not protected by Civil Service Law § 75–b ( see§ 75–b [2][b]; Moore v. County of Rockland, 192 A.D.2d 1021, 1024, 596 N.Y.S.2d 908; see generally Matter of Coombs v. Village of Canaseraga, 247 A.D.2d 895, 896, 668 N.Y.S.2d 862). Although petitioner contends that such an effort would have been futile ( see Tipaldo v. Lynn, 48 A.D.3d 361, 362, 851 N.Y.S.2d 564), we conclude that his testimony to that effect merely raised an issue of credibility that the Hearing Officer was entitled to resolve against him ( see generally Matter of Dinnocenzo v. Staniszewski, 270 A.D.2d 840, 841, 705 N.Y.S.2d 313).
Finally, we conclude that the penalty of termination is not “ ‘so disproportionate to the offense as to be shocking to one's sense of fairness' ” and thus does not constitute an abuse of discretion as a matter of law ( Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280, rearg. denied96 N.Y.2d 854, 729 N.Y.S.2d 670, 754 N.E.2d 773; see Matter of Short v. Nassau County Civ. Serv. Commn., 45 N.Y.2d 721, 722–723, 408 N.Y.S.2d 471, 380 N.E.2d 298), particularly in light of petitioner's statement that he would take the same action again if he were placed in the same situation ( see Matter of Winters v. Board of Educ. of Lakeland Cent. Sch. Dist., 99 N.Y.2d 549, 550, 754 N.Y.S.2d 200, 784 N.E.2d 73).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.