Opinion
2011-12-22
In the Matter of Terry GUYNUP, Appellant, v. COUNTY OF CLINTON et al., Respondents.
Nancy E. Hoffman, Civil Service Employees Association, Inc., Albany (Steven A. Crain of counsel), for appellant. O'Connell & Aronowitz, Plattsburgh (Dean C. Schneller of counsel), for respondents.
Nancy E. Hoffman, Civil Service Employees Association, Inc., Albany (Steven A. Crain of counsel), for appellant. O'Connell & Aronowitz, Plattsburgh (Dean C. Schneller of counsel), for respondents. Thomas A. Mitchell, Albany, for New York State Sheriffs' Association, amicus curiae.
Before: MERCURE, Acting P.J., PETERS, SPAIN, ROSE and KAVANAGH, JJ.
KAVANAGH, J.
Appeal from a judgment of the Supreme Court (Muller, J.), entered January 11, 2011 in Clinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Michael E. Zurlo terminating petitioner's employment.
In October 2008, petitioner, a lieutenant employed by the Clinton County Sheriff's Department, was charged with misconduct, incompetence and insubordination in violation of Department rules and regulations. One charge stemmed from an incident that occurred in September 2008 when two officers of the Department served an order of protection on petitioner requiring that he surrender his firearms. After being informed of the content of the order, petitioner was alleged to have uttered “no f* * *ing way are you taking my guns. I will go home right now, load those f* * *ers up and I'll be waiting” (charge 1). Another charge alleged that petitioner was guilty of incompetence because, while the order of protection was in effect, he could not carry a firearm and could not faithfully execute his official responsibilities as an officer within the Department (charge 3). Petitioner was also charged with making threatening statements to his wife regarding the Sheriff of Clinton County (charge 2) and with making derogatory public comments about the administration and operation of the Department (charge 4).
A hearing was held pursuant to Civil Service Law § 75 after which a Hearing Officer found petitioner guilty of insubordination (charge 1) and incompetence (charge 3), but dismissed the remaining charges. As for his penalty, the Hearing Officer recommended that petitioner be required to participate in an employee assistance program and be suspended without pay for 30 days. As the appointed authority designated to review this report and the Hearing Officer's findings, respondent Michael E. Zurlo, the Clinton County Administrator, agreed that petitioner was guilty of insubordination and incompetence. However, he rejected the Hearing Officer's conclusion that petitioner was not guilty of making threats directed at the Sheriff, and found that petitioner was guilty of that charge. Zurlo also disagreed with the Hearing Officer's conclusion as to the penalty to be imposed, and ruled that petitioner should be terminated from his position within the Department. Petitioner challenged Zurlo's determination in a CPLR article 78 proceeding and this Court, upon review, found that substantial evidence existed to support Zurlo's determination as to petitioner's guilt of misconduct and incompetence (charges 1 and 3) (74 A.D.3d 1552, 903 N.Y.S.2d 580 [2010] ). However, Zurlo's determination that petitioner was guilty of uttering threats against the Sheriff (charge 3) was set aside and that charge was dismissed ( id.). Given that finding, the matter was remitted for a new determination as to the penalty to be imposed on the remaining charges ( id.). Upon remittal, Zurlo again found that petitioner should be terminated from his position. Petitioner, in response, commenced this CPLR article 78 proceeding, challenging that determination. Supreme Court dismissed the petition, prompting this appeal.
Initially, we note that a correction officer is a law enforcement official and, as such, may be held to a higher standard in measuring his or her conduct in terms of the execution of his or her official duties and responsibilities ( see Matter of Covert v. Schuyler County, 78 A.D.3d 1309, 1311, 911 N.Y.S.2d 197 [2010], lv. denied 16 N.Y.3d 706, 2011 WL 1045324 [2011]; Matter of Castell v. City of Saratoga Springs, 24 A.D.3d 1059, 1061, 806 N.Y.S.2d 299 [2005]; see also Matter of Billings v. County of St. Lawrence, 139 A.D.2d 809, 811, 526 N.Y.S.2d 677 [1988] ). As for the penalty that Zurlo imposed, we note that our review of such an administrative determination is “limited to whether the penalty is so disproportionate as to be shocking to one's sense of fairness” ( Matter of Nygard v. County of Warren, 79 A.D.3d 1354, 1356–1357, 913 N.Y.S.2d 389 [2010] [internal quotation marks and citations omitted]; see Matter of Mapp v. Burnham, 8 N.Y.3d 999, 1000, 839 N.Y.S.2d 439, 870 N.E.2d 678 [2007]; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974]; Matter of Lory v. County of Washington, 77 A.D.3d 1265, 1268, 910 N.Y.S.2d 223 [2010] ). Here, petitioner stands convicted of threatening law enforcement personnel who were attempting to execute a court order requiring that he surrender his firearms. Such conduct, especially when committed by an individual who occupies a senior position in law enforcement, is “clearly at odds with the strict discipline necessary to effectively operate a [Sheriff's Department]” where he is employed and supports the decision imposing termination as his penalty ( Matter of Longton v. Village of Corinth, 57 A.D.3d 1273, 1275–1276, 869 N.Y.S.2d 682 [2008], lv. denied 13 N.Y.3d 709, 2009 WL 3379123 [2009] ). As a result, we do not find that the decision to terminate petitioner from his position as a lieutenant with the Department, under the circumstances presented, should be set aside.
As a result of this finding, we need not address the consequences of petitioner having been found guilty of charge 3.
ORDERED that the judgment is affirmed, without costs.