| Matter of Longton v Village of Corinth |
| 2008 NY Slip Op 10090 [57 AD3d 1273] |
| December 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Jason W. Longton Jr., Petitioner, v Village of Corinth etal., Respondents, et al., Respondents. |
—[*1] Shantz & Belkin, Latham (Randolph Belkin of counsel), for Village of Corinth and others,respondents.
Lahtinen, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Saratoga County) to review a determination of respondent Village ofCorinth Board of Trustees which terminated petitioner's employment as a police officer.
Petitioner began working in 2003 as a police officer for the Village of Corinth, Saratoga County. In2004, he was suspended and charged pursuant to Civil Service Law § 75 with violating variousdepartment rules. The most serious charge involved alleged misconduct and insubordination when hecontinued to secretly investigate an individual after being given a direct order by respondent Chief ofPolice of the Village of Corinth not to do so. His employment was terminated following a hearing, butthat determination was annulled and the matter remanded for a new hearing because respondents failedto make a proper stenographic transcript of the original [*2]hearing.[FN*]A second hearing resulted in the Hearing Officer recommending termination, which respondent Villageof Corinth Board of Trustees adopted. This proceeding ensued.
The standard of review of a determination made following a hearing pursuant to Civil Service Law§ 75 is whether the determination is supported by substantial evidence (see Matter of Thibodeau v Northeastern ClintonCent. School Bd. of Educ., 39 AD3d 940, 941 [2007]; Matter of Eck v County of Delaware, 36 AD3d 1180, 1183 [2007]).Where, as here, conflicting versions are presented, "credibility questions are within the Hearing Officer'ssole province" (Matter of Rounds v Town ofVestal, 15 AD3d 819, 822 [2005]; see Matter of Secreto v County of Ulster, 228AD2d 932, 934 [1996]). "[T]his Court may not substitute its own judgment for that of the [Board],even when evidence exists that could support a different result" (Matter of Clarke v Cleveland, 53 AD3d 894, 896 [2008]).
During a traffic stop in August 2004, petitioner had a quarrel with a local restaurateur, TrevorDownie, whose complaints about petitioner's conduct during the stop were passed on to the Chief ofPolice. Shortly thereafter, a heated exchanged occurred when petitioner confronted Downie at hisrestaurant, resulting in Downie threatening litigation against respondent Village of Corinth. Later inAugust 2004, petitioner reportedly learned that his paramour's 15-year-old daughter, who worked atDownie's restaurant, had been touched on her shoulder and low back by Downie. According totestimony by the Chief of Police, when petitioner arrived at work on the day that Downie's allegedconduct toward the daughter of petitioner's paramour had been reported, he was calling Downie a"child molester," "pedophile" and "pervert," and stating that he intended to go to the restaurant andarrest Downie.
The Chief of Police testified that he did not believe there was yet sufficient evidence for an arrestand he felt that such an arrest at that time would expose the Village to a lawsuit by Downie. He furtherbelieved that petitioner had demonstrated that he lacked impartiality as to any investigation of Downie.The Chief of Police thus ordered petitioner to stop any investigation or contact with Downie, andinformed him that another officer would be assigned to the case. Later the same day that the order bythe Chief of Police had been given, petitioner went to the residence of another female employee ofDownie and, although she did not want to get involved, he obtained a statement from her regardingalleged improper touching by Downie. Rather than file the statement at the police station, he kept it inhis personal possession, and he also did not report his activities in the police blotter. The femaleemployee soon requested that the statement be returned and destroyed. There is sufficient proof toestablish substantial evidence of insubordination (see Matter of Eck v County of Delaware, 36AD3d at 1183).
Petitioner's contention that he reasonably believed the Chief of Police's order was unlawful restsupon credibility determinations that the Hearing Officer resolved against him. His assertion that thesubsequent investigation of Downie was lackluster, even if true, does not provide an after-the-factjustification for his insubordination. Nor does the fact that, eventually, significant proof surfaced thatDownie (who is now deceased) had been improperly touching female employees.[*3]
Petitioner contends that the penalty was excessive. The penaltywill not be disturbed unless it is "so disproportionate as to be shocking to one's sense of fairness"(Matter of Collins v Parishville-Hopkinton Cent. School Dist., 274 AD2d 732, 734 [2000]; see Matter of Bottari v Saratoga Springs CitySchool Dist., 3 AD3d 832, 833 [2004]). Petitioner, an employee of short duration, disobeyeda direct order almost immediately after it was given in a matter in which he had a considerableemotional involvement. In doing so, he displayed conduct clearly at odds with the strict disciplinenecessary to effectively operate a police department (see Matter of Coyle v Rozzi, 199 AD2d391, 392 [1993]). While a lesser penalty would have been appropriate, we are unpersuaded that thepenalty imposed was shocking under the circumstances.
Petitioner's argument that he was denied a fair hearing because the same Hearing Officer was usedafter reversal and remand as presided at the initial hearing was not preserved by an objection at thetime of the second hearing (see Matter of Rice v Belfiore, 15 Misc 3d 1105[A], 2007 NY SlipOp 50511[U], *5 [2007]). In any event, the record fails to establish merit to this argument (see Matter of Compasso v Sheriff of SullivanCounty, 29 AD3d 1064, 1064-1065 [2006]).
Cardona, P.J., Carpinello, Kane and Malone Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.
Footnote *: A dispute between the partiesregarding petitioner's pay while suspended previously reached this Court (Matter of Longton v Village of Corinth, 49AD3d 995 [2008]).