| Matter of Lory v County of Washington |
| 2010 NY Slip Op 07657 [77 AD3d 1265] |
| October 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Chad R. Lory, Petitioner, v County of Washingtonet al., Respondents. |
—[*1] Roger A. Wickes, County Attorney, Fort Edward (Daniel S. Martindale of counsel), forrespondents.
Egan Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Washington County) to review a determination of respondentWashington County Sheriff which terminated petitioner's employment with respondentWashington County Sheriff's Department.
In March 2009, pursuant to Civil Service Law § 75, respondent Washington CountySheriff's Department charged petitioner with four counts of misconduct arising out of petitioner'semployment as a correction officer. The charges stemmed from petitioner's alleged inappropriatedealings with a certain female inmate and alleged violations of Department procedure in that (1)petitioner failed to perform his assigned duties in a professional manner, (2) petitioner failed toobey all lawful orders, (3) petitioner engaged in conduct which tended to undermine theefficiency and discipline within the Department, and (4) petitioner was inattentive to duty. Ahearing on the matter was conducted in April 2009. Petitioner was found guilty of all charges,and the Hearing Officer recommended that petitioner be dismissed from his position as acorrection officer. Respondent Washington County Sheriff adopted [*2]the Hearing Officer's recommendation, and this proceedingensued.
Initially, we find that, contrary to petitioner's assertions, the violations charged weresufficiently detailed to enable petitioner to prepare an adequate and extensive defense (see Matter of Rounds v Town ofVestal, 15 AD3d 819, 822 [2005]), and any references to uncharged conduct found inthe determination, including references to additional conduct occurring on February 6 and 8,2009 in the inmate recreation room, were necessary to refute petitioner's denial of the charge thathis attention was diverted from his duties (see id.). We are also unpersuaded bypetitioner's assertion that charge one was legally insufficient, since the Department was notprecluded from instituting charges based on conduct that was the subject of counseling andcomplaints (see Matter of Heslop v Board of Educ., Newfield Cent. School Dist., 191AD2d 875, 877 [1993]). We also find that the Hearing Officer's determination is sufficientlydetailed, such that petitioner was not deprived of the opportunity to intelligently challenge andobtain adequate judicial review of the same (see Matter of Langhorne v Jackson, 206AD2d 666, 667 [1994]).
In addressing the substance of petitioner's claims, the standard of review to be applied inreviewing an administrative determination made pursuant to Civil Service Law § 75 iswhether the determination is supported by substantial evidence (see Matter of Longton v Village ofCorinth, 57 AD3d 1273, 1274 [2008], lv denied 13 NY3d 709 [2009]; Matter of Peters v County ofRensselaer, 28 AD3d 854, 854 [2006]; Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d823, 824 [2005]), which means proof "so substantial that from it an inference of theexistence of the fact found may be drawn reasonably" (Matter of Moro v Mills, 70 AD3d 1269, 1270 [2010] [internalquotation marks and citations omitted]). We note that credibility determinations are "solelywithin the province of the Hearing Officer," and this Court may neither substitute its ownjudgment for that of the Hearing Officer nor weigh the evidence presented (Matter of Perryman v Village of SaranacLake, 64 AD3d 830, 835 [2009]).
In reviewing this record, we find substantial evidence to support the Hearing Officer'sdetermination. The Department presented testimony regarding petitioner's frequent andsometimes disruptive visits to the jail's classroom. Evidence was presented that, during thosevisits, petitioner's attention was paid to one female inmate in particular. One teacher testifiedabout an incident when petitioner engaged that female inmate in a discussion during class and,after leaving the classroom, telephoned the classroom in an attempt to continue the conversation.Another teacher testified that petitioner would "focus" on that same inmate and seemed"interested" in her. In January 2009, a meeting occurred between petitioner, his captain andlieutenant. While the lieutenant testified that at that time petitioner was orally ordered to refrainfrom entering the classroom area during class time, petitioner testified that he did not perceivethis meeting as a reprimand, but as a casual reminder to be careful regarding his interactions withfemale inmates. A teacher testified that during either January or February 2009, petitioneradvised that he was "not supposed to be [in the classroom]," but that he "[didn't] care about that."On February 24, 2009, petitioner was again warned to stay out of the classroom area duringschool hours. On February 25, 2009, petitioner was observed in the classroom area during schoolhours. Thereafter, on February 26, 2009, petitioner was issued a written memorandum ofwarning.
The Department also presented evidence that, on February 6, 2009, while on duty in thehousing unit, petitioner did not respond to telephone and radio calls made by his lieutenant.Video [*3]surveillance and testimony revealed that at the time hislieutenant was attempting to contact him, petitioner was in the inmate recreation room andunable to observe the particular jail unit to which he was assigned. The video also depictednumerous instances throughout petitioner's shift wherein he entered the recreation room andremained there with the door closed when that same female inmate was also present inside. Onone of these occasions, petitioner permitted another inmate to hold the door closed from the otherside. The Department presented testimony that the length of time petitioner spent in therecreation room during his shift was unacceptable and prevented petitioner from observing otherinmates in the unit, which created a risk of, among other things, unsupervised inmates harmingthemselves or others. Video surveillance taken on February 8, 2009 depicts petitioner in therecreation room with that same female inmate without the lights on. Although petitioner providesexplanations for what occurred in the recreation room and he disputes both having had arelationship with the female inmate and having been ordered to stay out of the classroom, suchcredibility determinations were "within the Hearing Officer's sole province" (Matter ofRounds v Town of Vestal, 15 AD3d at 822).
As the evidence supports the Hearing Officer's determination that petitioner's conductevidenced a lack of professional judgment and posed a serious security risk, we do not find thepenalty of dismissal "so disproportionate [to the offenses] as to be shocking to one's sense offairness" (Matter of Sindoni v County ofTioga, 67 AD3d 1183, 1184 [2009] [internal quotation marks and citations omitted]).Finally, under the circumstances of this case, the Hearing Officer did not err in making a penaltyrecommendation without having first conducted a separate hearing (see Matter of Finigan vLent, 189 AD2d 935, 938 [1993], appeal dismissed 81 NY2d 1067 [1993], lvdenied 82 NY2d 657 [1993]). We have considered petitioner's remaining arguments, andfind them to be without merit.
Cardona, P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.