| Matter of Thompson v Jefferson County Sheriff John P.Burns |
| 2014 NY Slip Op 04297 [118 AD3d 1276] |
| June 13, 2014 |
| Appellate Division, Fourth Department |
[*1]
| In the Matter of Jeffrey A. Thompson,Appellant-Respondent, v Jefferson County Sheriff John P. Burns et al.,Respondents-Appellants. |
Ennio J. Corsi, New York State Law Enforcement Officers Union, Council 82,AFSCME, AFL-CIO, Albany, for petitioner-appellant-respondent.
David J. Paulsen, County Attorney, Watertown (John L. Sabik of counsel), forrespondents-respondents-appellants.
Appeal and cross appeal from a judgment (denominated order) of the SupremeCourt, Jefferson County (Hugh A. Gilbert, J.), entered December 21, 2012 in aproceeding pursuant to CPLR article 78. The judgment, among other things, granted thepetition in part.
It is hereby ordered that the judgment so appealed from is unanimously modified onthe law by confirming the determination in its entirety and dismissing the petition and asmodified the judgment is affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking toannul the determination, made after an advisory arbitration hearing, suspending him for45 days without pay from his employment as a correction officer in the Sheriff's Office ofrespondent County of Jefferson based on his violation of three departmental rules andregulations. Supreme Court confirmed the determination with respect to charge one,which alleged that petitioner had violated section 4.2 of the Sheriff's Department'sUnified Code of Conduct (Conduct Unbecoming Members and Employees), and chargetwo, which alleged that he had violated section 4.3 of the Code of Conduct (Consortingwith Persons of Ill Repute). The court granted that part of the petition seeking to vacatethe finding of guilt with respect to charge three, which alleged that petitioner violatedsection 4.12 of the Code of Conduct (Membership and Organizations), and remitted thematter to respondents "to determine whether the penalty should be adjusted as a result."We conclude that the determination should be confirmed in its entirety and that thepetition should be dismissed, and we therefore modify the judgment accordingly.
Initially, we agree with respondents that the proper standard of review is whetherthere is a rational basis for the determination or whether it is arbitrary and capricious, andnot whether the determination is supported by substantial evidence (see Matter ofFortune v State of N.Y., Div. of State Police, 293 AD2d 154, 157 [2002]; Matterof Pierino v Brown, 281 AD2d 960, 960 [2001]; [*2]Matter of Marin v Benson, 131 AD2d 100, 103 [1987];see generally Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 ofTowns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231[1974]). Here, the hearing was mandated by a collective bargaining agreement and notrequired by statute or law, thereby making the former standard the appropriate standardof judicial review (see CPLR 7803 [4]; Matter of Colton v Berman, 21NY2d 322, 329 [1967]; Pierino, 281 AD2d at 960). Contrary to respondents'contention, however, we conclude that both the determination of guilt and the penaltyimposed are subject to judicial review (cf. Antinore v State of New York, 49AD2d 6, 8 [1975], affd 40 NY2d 921 [1976]; see generally Matter ofPlainedge Fedn. of Teachers v Plainedge Union Free School Dist., 58 NY2d 902,903-904 [1983]).
With respect to the merits, "[a]n action is arbitrary and capricious when it is takenwithout sound basis in reason or regard to the facts" (Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]).An agency's determination "is entitled to great deference" (Matter of Walker v State Univ. ofN.Y. [Upstate Med. Univ.], 19 AD3d 1058, 1059 [2005], lv denied 5NY3d 713 [2005] [internal quotation marks omitted]) and, "[i]f the [reviewing] courtfinds that the determination is supported by a rational basis, it must sustain thedetermination even if the court concludes that it would have reached a different resultthan the one reached by the agency" (Peckham, 12 NY3d at 431; see Matter ofDiocese of Rochester v Planning Bd. of Town of Brighton, 1 NY2d 508, 520[1956]). Moreover, it is well settled that law enforcement officers may be "held to higherstandards than ordinary civil service employees" (Matter of Batista v Kelly, 16 AD3d 182, 182 [2005]), andthat "an administrative determination regarding discipline will be afforded heighteneddeference where a law enforcement agency . . . is concerned"(Fortune, 293 AD2d at 157; see Trotta v Ward, 77 NY2d 827, 828[1991], rearg dismissed 79 NY2d 887 [1992]).
Here, we conclude that the determination with respect to the three disciplinarycharges is neither arbitrary nor capricious, and that there is a rational basis for suchdetermination (see Fortune, 293 AD2d at 157; Marin, 131 AD2d at 103;see generally Plainedge, 58 NY2d at 903-904). All three charges arise frompetitioner's voluntary, off-duty attendance at a social event hosted and/or sponsored bythe Hells Angels Motorcycle Club (Hells Angels). With respect to charge one, forunbecoming conduct, respondents rationally determined that petitioner's attendance at anevent organized by Hells Angels brought disrepute on and/or discredited the Sheriff'sDepartment and petitioner as a correction officer and employee thereof in violation ofsection 4.2 of the Code of Conduct. Respondents established that Hells Angels has areputation in the law enforcement community as an outlaw motorcycle club, and that itsmembers are known to be involved in criminal activity, including drug smuggling,violent crime, and weapons trafficking. Indeed, petitioner acknowledged during thehearing that he was aware that Hells Angels members have been involved in criminalactivity, that the federal government considers it an outlaw motorcycle gang, and that it is"perceived as a criminal organization." Respondents further established that petitioner'sconduct "impair[ed] the operation or efficiency of the department or themember/employee" in violation of section 4.2. The county jail administrator testified atthe hearing that Hells Angels is classified as a "security threat group" in the correctioncommunity, and that its members are known to be involved in criminal activity in jailsand prisons.
With respect to charge two, for consorting with persons of ill repute, the jailadministrator testified that he considered any member of Hells Angels to be "a person ofill repute, regardless of the person's criminal history, because the organization itself hasclose ties to organized crime." A detective who was involved in police surveillance of theevent testified that he observed Hells Angels members at the event, and that herecognized another attendee as "a person known in the area to be associated with HellsAngels" and who has a criminal history. In any event, even if petitioner did not in fact"consort" with a person of ill repute at the event, we conclude that there is a rational basisfor the determination that a Hells Angels-sponsored event [*3]is a place where "persons of questionable character" wouldbe likely to congregate within the meaning of section 4.3 of the Code of Conduct.
As for charge three, concerning membership and organizations, although it isundisputed that the motorcycle club to which petitioner belongs is not affiliated withHells Angels, we conclude that there is a rational basis for the determination thatpetitioner's attendance at an official Hells Angels-sponsored event constituted a"knowing[ ] . . . connect[ion]" with a "subversive organization," i.e., "an[ ]organization . . . whose object or purpose, either directly or indirectly,would adversely affect the discipline or conduct of the members/employees" in violationof section 4.12 of the Code of Conduct.
Finally, we agree with respondents that the penalty is not "so disproportionate to theoffense as to be shocking to one's sense of fairness" (Pell, 34 NY2d at 237; see Matter of Fodera v Daines,85 AD3d 1452, 1456 [2011], lv denied 17 NY3d 714 [2011]; Marin,131 AD2d at 103-104; see generally Matter of Gamma v City of Newburgh, 277AD2d 236, 237 [2000]). As a law enforcement officer with over 20 years of experienceas a correction officer, petitioner should have known that his participation in a HellsAngels-sponsored event would raise, at the very least, an appearance of impropriety, andthat such participation could potentially jeopardize his authority and effectiveness as acorrection officer. As the Sheriff argued during the hearing, "[t]he special trust bestowedupon correction officers requires that they abide by strict rules of behavior, as it is thehigh moral character upon which the safety of the jail and the individuals housed andworking there depends." Inasmuch as the record establishes that petitioner was"unrepentant, insisting that his personal opinion of [Hells Angels] and its members wasthe only criterion upon which his conduct should be judged," we see no basis to disturbthe penalty imposed (see Pell, 34 NY2d at 237; see generally Trotta, 77NY2d at 827; Batista, 16 AD3d at 182). Present—Smith, J.P., Fahey,Peradotto, Sconiers and Valentino, JJ.