Matter of Phillips v. York ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: January 21, 2016                   521210
    ________________________________
    In the Matter of SCOTT C.
    PHILLIPS,
    Petitioner,
    v                                     MEMORANDUM AND JUDGMENT
    NATHAN H. YORK, as Sheriff of
    Warren County,
    Respondent.
    ________________________________
    Calendar Date:   November 23, 2015
    Before:   Peters, P.J., McCarthy, Egan Jr., Devine and Clark, JJ.
    __________
    Tuttle Law Firm, Latham (James B. Tuttle of counsel), for
    petitioner.
    Lemire, Johnson & Higgins, LLC, Malta (April J. Laws of
    counsel), for respondent.
    __________
    Devine, J.
    Proceeding pursuant to CPLR article 78 (transferred to this
    Court by order of the Supreme Court, entered in Warren County) to
    review a determination of respondent terminating petitioner's
    employment.
    Petitioner was employed by the Warren County Sheriff's
    Office as a patrol officer. On December 13, 2013, two
    disciplinary charges were filed against petitioner as a result of
    his involvement in a preventable motor vehicle accident while on
    duty, an accident that allegedly resulted from his careless or
    negligent driving and that violated the terms of a September 2013
    stipulation and agreement obliging him to exercise reasonable
    -2-                521210
    care in operating agency vehicles. Following a hearing pursuant
    to Civil Service Law § 75, a Hearing Officer sustained both
    charges and recommended that petitioner receive a letter of
    reprimand, as well as a two-month suspension and a one-year term
    of disciplinary probation. Respondent adopted the findings of
    the Hearing Officer with respect to petitioner's guilt, but
    determined that termination was the appropriate penalty.
    Petitioner then commenced this CPLR article 78 proceeding
    challenging respondent's determination, which was transferred to
    this Court for resolution.
    We confirm. The facts surrounding the accident that led to
    the disciplinary charges are not in significant dispute, and
    petitioner does not assert in his brief that the findings of
    guilt are unsupported by substantial evidence in the record. He
    instead contends that respondent's determination was arbitrary
    and capricious in that it departed, without explanation, from
    prior disciplinary determinations imposing penalties well short
    of termination. However, the prior determinations pointed to by
    petitioner involve radically different misbehavior, a point noted
    by the Hearing Officer (compare Matter of Girard v City of Glens
    Falls, 173 AD2d 113, 117 [1991], lv denied 79 NY2d 757 [1992]).1
    Accordingly, while respondent and his predecessor had previously
    declined to terminate employees for significant misconduct, those
    decisions are "factually distinguishable from this case and" did
    not require further explanation by respondent (Matter of Board of
    Educ. of Hyde Park Cent. School Dist. v Ambach, 142 AD2d 869, 870
    [1988]; cf. Matter of Charles A. Field Delivery Serv. [Roberts],
    66 NY2d 516, 521 [1985]).
    Petitioner also argues that the September 2013 stipulation
    and agreement – which resolved disciplinary charges stemming from
    an August 2013 automobile accident and placed him on a six-month
    term of disciplinary probation during which he was obliged to
    operate agency vehicles in a responsible manner – bars respondent
    from terminating him. The stipulation and agreement did not
    1
    The same point is noted by respondent in his brief and,
    as such, petitioner's contention that respondent conceded that he
    behaved in an arbitrary and capricious manner is without merit.
    -3-                521210
    include language prohibiting respondent from seeking to terminate
    petitioner for future misconduct, and only stated that respondent
    was free in his "discretion and without completion of all the
    formal provisions [of] . . . Civil Service Law § 75 . . . [to]
    suspend[] [petitioner] without pay for a period not to exceed two
    (2) months" if the terms of his probation were violated (emphasis
    omitted). The stipulation, in other words, does nothing beyond
    allowing respondent to avoid certain procedural requirements if
    he thereafter suspends petitioner for a set period of time. If
    the parties "intended the clause to have a broader meaning" and
    preclude respondent from seeking a harsher penalty if he employed
    the procedures set forth by Civil Service Law § 75, it was
    incumbent upon them to "have specifically so stated" (New York
    State Elec. & Gas Corp. v Aasen, 157 AD2d 965, 967 [1990]).
    Petitioner lastly argues that the penalty imposed by
    respondent constituted an abuse of discretion in that "it is so
    disproportionate to the offense as to shock our sense of
    fairness" (Matter of Sickler v Town of Hunter, 3 AD3d 727, 728
    [2004]; see Matter of Turzik v VanBlarcum, 100 AD3d 1338, 1339
    [2012]). From March 2011 to December 2013, petitioner was
    involved in several preventable accidents while operating patrol
    vehicles. Despite progressive discipline imposed as a result of
    those accidents, it is evident that petitioner has failed to
    develop the good judgment necessary to avoid them. Respondent
    appropriately found from this history that petitioner would pose
    a risk to persons and property if he continued to hold his
    position as a patrol officer and, thus, we cannot say that the
    penalty of termination shocks our sense of fairness (see Matter
    of Gibides v Powers, 45 NY2d 994, 995-996 [1978]; Matter of
    Massaria v Betschen, 290 AD2d 602, 605 [2002]; Matter of Malloch
    v Ballston Spa Cent. School Dist., 249 AD2d 797, 800 [1998], lv
    denied 92 NY2d 810 [1998]).
    Peters, P.J., McCarthy, Egan Jr. and Clark, JJ., concur.
    -4-                  521210
    ADJUDGED that the determination is confirmed, without
    costs, and petition dismissed.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 521210

Judges: Devine

Filed Date: 1/21/2016

Precedential Status: Precedential

Modified Date: 11/1/2024