Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the §75 "18 month statute of limitation"

Proof of the alleged "crime" must be in the record of the disciplinary hearing to satisfy the "exception" to the §75 "18 month statute of limitation"
Matter of Guynup v County of Clinton, 2010 NY Slip Op 04914, decided on June 10, 2010, Appellate Division, Third Department

Terry Guynup, a lieutenant with 14 years of service with the Clinton County Sheriff's Department, was served with disciplinary charges alleging misconduct, incompetence and insubordination pursuant to Civil Service Law §75.

One of the specifications filed against Guynup alleged that he had directed threats towards the Sheriff, David Favro.

The §75 hearing officer found Guynup guilty of all but two of the specifications set out in the charges.

In addition to dismissing a charge that alleged that Guynup had made derogatory public comments about the Sheriff's Department because no evidence was presented at the hearing to support this charge, the Hearing Officer dismissed the charge concerning the threat that Guynup was alleged to have directed at Sheriff Favro because, “if made, it occurred more than 18 months before the disciplinary charges were filed and, as a result, was untimely.*

The Hearing Officer recommended that Guynup be required to participate in an employee assistance program and be suspended without pay for 30 days.

When Sheriff Favro received the Hearing Officer’s findings and recommendations, he disqualified himself from any further participation in the proceeding and designated Michael E. Zurlo, the Clinton County Administrator, to review the report, determine if its findings were supported by substantial evidence and decide what penalty, if any, should be imposed upon Guynup.

Zurlo adopted the Hearing Officer's findings that Guynup was guilty of misconduct, insubordination and incompetence, but, among other things, determined that the specification dismissed by the Hearing Officer as untimely was, in fact, timely as it constituted criminal and, therefor, the statutory time period within which the disciplinary action concerning this allegation had to be commenced did not apply.

Zurlo rejected the Hearing Officer's recommendation regarding the penalty to be imposed and, instead, directed that Guynup should be terminated from his position with the Sheriff's Department.

Guynup filed an Article 78 petition challenging [1] “the legality of Zurlo's appointment by Favro,” and [2] Zurlo’s determination that the charge alleging the threat to Favro was timely.

As to Guynup’s objection to the Sheriff designating Zurlo to review the Hearing Officer’s findings and recommendations and to make a final determination, the Appellate Division, citing Gomex v Stout, 13 NY3d 182, said that “where a civil service proceeding has been commenced and a conflict exists that implicates the appointing authority's ability to be fair and impartial, a third party with ‘supervisory authority over that particular employee’ may be designated to review a Hearing Officer's report and, upon such a review, make determinations concerning the employee's status.”

Noting that “the conflict for Favro was self-evident and required that he disqualify himself from conducting the necessary review of the findings and recommendations made by the Hearing Officer,” the Appellate Division also found that the only others having “command authority” over Guynup were disqualified because of they were both witnesses who testified at the disciplinary hearing.

The court said that “Favro not only had the authority to deputize Zurlo, the County Administrator, and make him a member of the Sheriff's Department, but also had the right to delegate to him the authority to conduct this review.”

Turning to the Hearing Officer’s ruling that the charge alleging that Guynup threatened Favro was untimely and should have been dismissed, the Appellate Division said that it agreed with the Hearing Officer’s determination that the §75(4) 18-month statute of limitations for bringing such charges controlled.

First, said the court, Civil Service Law §75(4) requires that a removal or disciplinary proceeding be commenced within 18 months after the acts that form the basis of the charges have occurred, unless the conduct in question involves the commission of a crime.

The County's theory: Guynup actions constituted committing the crimes of menacing in the third degree and reckless endangerment in the second degree, thereby rendering the 18-month time limit within which such a charge could be brought inapplicable to this proceeding. The Appellate Division disagreed and sustained the Hearing Officer's ruling.

To have committed the crime of reckless endangerment, said the court, evidence must be presented that Guynup "recklessly engage[d] in conduct which create[d] a substantial risk of serious physical injury to another person" within the meaning of Penal Law §120.20. As Guynup denied the events underlying the allegation, the Appellate Division ruled that “Absent some evidence to the contrary, and none was presented at the hearing, the crime of reckless endangerment on these facts could not have been committed.”

As a result, said the court, "even if the testimony regarding the threats and ensuing struggle are fully accepted, the crimes of reckless endangerment and menacing were not committed by Guynup and the statutory exception to the 18-month rule does not apply” and the charge alleging that he had threatened Favro must be dismissed as untimely.

Finding that Zurlo “never specified the penalty to be imposed for each charge for which he found [Guynup] guilty,” and that the principal charge filed against him — the threat to Sheriff Favro — has been dismissed, the Appellate Division remitted the matter “for a redetermination of the penalty to be imposed on those charges of which [Guynup] now stands guilty.”

* §75.4. provides that “Notwithstanding any other provision of law, no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges or, in the case of a state employee who is designated managerial or confidential under article fourteen of this chapter, more than one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, provided, however, that such limitations shall not apply where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.”

N.B. §75.4 sets different statutes of limitations for state employees designated managerial or confidential pursuant to Article 14 of the Civil Service Law than it does for other individuals. Although a number of collective bargaining agreements provide for a shorter “statutes of limitations” for filing disciplinary charges against an individual in a collective bargaining unit, it is unlikely that setting a greater statute of limitations for employees in a collective bargaining unit would survive judicial review for the reason set out by the Appellate Division in City of Plattsburgh v Local 788, 108 AD2d 1045 -- a collective bargaining agreement may not truncate or diminish a statutory right enjoyed by an employee.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04914.htm