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January 06, 2012

An appointing authority may designate another individual to review a disciplinary hearing officer’s report and make the final determination

An appointing authority may designate another individual to review a disciplinary hearing officer’s report and make the final determination
Guynup v County of Clinton, 2011 NY Slip Op 09243, Appellate Division, Third Department

A lieutenant employed by the Clinton County Sheriff's Department, Terry Guynup was served with four charges alleging various acts of misconduct, incompetence and insubordination in violation of Department rules and regulations.*

A Civil Service Law §75 Hearing Officer found Guynup guilty of two of the charges filed against him but dismissed the remaining two charges. As to the penalty to be imposed, the Hearing Officer recommended that Guynup be required to participate in an employee assistance program and be suspended without pay for 30 days.

David Favro, the Clinton County Sheriff, disqualified himself from the proceeding and designated the Clinton County Administrator, Michael E. Zurlo, to review the Hearing Officer’s findings and recommendations.**

Zurlo accepted the Hearing Officer’s findings but, in addition, found Guynup guilty of one additional charge. Zurlo, however, rejected the Hearing Officer’s recommendation as to the penalty to be imposed and ruled that Guynup should be terminated from his position with the Sheriff’s Department.

Subsequently Zurlo's determination that Guynup was guilty of the additional charge was set aside by the Appellate Division [see Guynup v. County of Clinton, 74 A.D.3d 1552] and the matter remitted to Zurlo for a new determination as to the penalty to be imposed on the surviving two charges. Zurlo again decided that Guynup should be terminated from his position and again Guynup appealed.

The Appellate Division, noting that its review of such an administrative determination is "limited to whether the penalty is so disproportionate as to be shocking to one's sense of fairness" said that Guynup’s conduct, especially when committed by an individual who occupies a senior position in law enforcement, was "clearly at odds with the strict discipline necessary to effectively operate a [Sheriff's Department]" where he is employed and supports the decision imposing termination as his penalty” and sustained Zurlo’s decision to terminate Guynup.

* One of the charges alleged that Guynup was guilty of incompetence because he could not carry a firearm and thus “could not faithfully execute his official responsibilities as an officer within the Department.”

** If a conflict exists that may 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” [Gomez v Stout, 13 NY3d 182].

The decision is posted on the Internet at:

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