5cMi HI) f.'f MEMORANDUM DECISION. Justice. Present: Sheriff Offcers Association, Inc., a New York Not-for-Profit Corporation. Respondents.

Transcription

1 5cMi MEMORANDUM DECISION SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 3 Present: MICHAEL F. ADAMS, HON. UTE WOLFF LALLY Justice Petitioner HI) f.'f Motion Sequence #2 Submitted June 29, against- INDEX NO: 5301/11 KEVIN IMM, RICHARD BLAZAK, NICHOLAS BUFINSKY, MICHAEL COSTELLO, RAYMOND COTTO, THOMAS DESTEFANO, ROBERT GILMARTIN, DONALD KERZNER, GREGORY LANNING, DENNIS MAURUS, JAMIE MCCANN and BRIAN WISE, being and constituting the members of the Board of Directors of the Sheriff Offcers Association, Inc., a New York Not-for-Profit Corporation Pursuant to Article 78 of the New York Civil Practice Law and Rules Respondents. Appearances: For Petitioner: Thomas A. Toscano, P. 200 Old Country Road, Suite 100 Mineola, NY For Respondents Lewis Brisbois Bisgaard & Smith LLP 77 Water Street, Suite 2100 New York, NY 10005

2 This is an Article 78 proceeding in which petitioner is seeking a judgment annullng and setting aside the March 28, 2011 determination as same (i) was made in violation of lawful proceeding; (ii) was affected by an error of law, (Hi) was arbitrary and capricious, and (iv) an abuse of discretion. Petitioner also seeks an order staying the Sheriff Officers Association, Inc. (" ShOA") Board from taking any further action with respect to the March, 2011 determination pending the hearing and determination of the instant petition. Petitioner has been a correction officer with the Nassau County Sheriffs Department, Division of Corrections, since July 9, Petitioner is now a Correction Captain with the Nassau County Sheriffs Department and is the current President of the aforesaid Association. Petitioner has held this post since Petitioner s current term as President runs from January until December At the time his current term commenced, the ShOA Constitution and by-laws in effect were those dated November 2003 (the " November by-laws ). The November 2003 by-laws were revised and amended by the ShOA in February 2008 ("the February 2008 by-laws The November 2003 by-laws contained the following provision: SECTION 4. Any member elected to a position on the Board of Governors of this Association shall first sign as a condition of accepting such position, an agreement (notarized) stating that he/she shall be prohibited form accepting any salaried, noncompetitive appointed position (acting or actual) with the County of Nassau except the position of Teacher, while actively serving as an elected Officer in this Association. The aforesaid agreement shall provide that if said member violates its terms, he/she shall within two (2) years of said violation reimburse the Sheriff Officers Association all salary (Honoraria) received while serving in office of the Sheriff Officers Association up to a maximum total of three (3) most

3 recent years of said Honorarium. overlapping, incumbent terms of office. This shall include The aforesaid agreement shall also provide that if member violates its terms, he/she may immediately be deemed a member "NOT in Good Standing" by a 2/3 (two-thirds) vote of the Board of Governors, and as such not be entitled to benefits offered to members in "good standing, " (Le. group term life insurance). Portions of the above may be amended or affirmed at any time by a two-thirds vote of the Board of Governors. The February 2008 by-laws contain an Article IX, Section 4 which is identical in scope and form to the provision in the November 2003 by- laws. Notwithstanding the provisions of Article 1X, Section 4 of the November 2003 bylaws, no such agreement was ever presented or provided to petitioner for signature prior to or co"ncurrent with his installation as President on January 1, Respondents are members of the Board of Directors of ShOA. On February 15, 2011, at a regular meeting of the Association s Board of Governors, a motion was made and passed unanimously to amend Article 1 X, Section 4 of the February 2008 by-laws to state the following: Any member elected to a position on the Board of Governors of this Association shall first sign, as a condition of accepting such position, an agreement (notarized) stating that he/she shall be prohibited from accepting any salaried, noncompetitive appointed position (acting or actual) with the County of Nassau except the position of Teacher, while actively serving as an elected Office in this Association within one (1) year of service as an elected Offcer in this Association. The aforesaid agreement shall provide that if said member violates its terms, he/she shall within two (2) years of said violation reimburse the Sheriff Officers Association all salary (Honoraria) received while service in office ofthe Sheriff Officers Association up to a maximum total

4 of three (3) most recent years of said Honorarium. This shall include overlapping incumbent terms of office. The aforesaid agreement shall also provide that if a member violates its terms, he/she may immediately be deemed a member "NOT in Good Standing" by a 2/3 (two-thirds) vote of the Board of Governors, and as such not be entitled to benefits offered to members in "good standing," (Le. group term life insurance). Portions of the above may be amended or affirmed at any time by a two-thirds vote of the Board of Governors (emphasis added). On February , petitioner was sworn in, and assumed the rank of "Correction Captain " the highest competitive rank in the Nassau County Sheriff' s Department, Division of Correction. Thereafter, at a regular meeting of the Association s Board of Governors held on March 16, 2011, each member of the Boa d was presented with an agreement in accordance with Article IX, Section 4, as amended. All Board members signed the agreement except for petitioner. On March 29, 2011 the Board of Governors by unanimous vote preferred disciplinary charges against petitioner for conduct reflecting discredit upon the Association. Specifically, the ShOA Board filed formal written charges alleging that " Mike Adams' conduct reflected discredit upon the Nassau County Sheriff Officer Association when he failed to comply with Article 1 X, Section 4 of this Association Constitution and by-laws as amended February 15, " The Board scheduled petitioner s disciplinary hearing to take place on April 20, Petitioner received the required notice of the date and time of the disciplinary hearing. On April 8, 2011, petitioner commenced the instant proceeding by order to show cause and simultaneously sought to obtain a temporary restraining order enjoining respondents from holding petitioner s disciplinary hearing, which was scheduled for April

5 herein. On 20, Petitioner named each of the Board of Directors as respondents April 11, 2011 the court held a hearing and denied petitioner s request to stay the disciplinary hearing. The court permitted petitioner s disciplinary hearing to proceed but stayed the ShOA Board' s enforcement of any penalties until the parties could be heard on May 5, By letter dated April 21, 2011, the ShOA Board informed petitioner of the decision of the Board of Directors in connection to the charges which were preferred against him at the March Special Meeting. Mr. Imm, Chairman of the Board of Directors stated that: On April 20, 2011 at a regular meeting of the Board of Governors, you appeared to answer the March 28, 2011 charges. You were afforded the opportunity to defend yourself against the charges. In addition, your attorney Thomas Toscano attended the hearing. At the conclusion of the hearing, the Board of Directors deliberated and, by unanimous vote of those present found you guilty of the March 28, 2011 charges. The Board voted to suspend you from serving in the office of President of the Association, effective immediately. The Board also voted to rescind the suspension upon your compliance with Article 9, Section 4 of the Association Constitution and by-laws, as amended February 15, The Board of Directors will review the suspension and your compliance with the By-Law at the next Board of Governors meeting, which is scheduled for Mary 18, On May 2, 2011, petitioner amended the petition, seeking to stay the enforcement of any disciplinary penalties. At the May 5 hearing, the court heard arguments from the parties concerning petitioner s application for a stay of the enforcement of any disciplinary penalties pending resolution of the underlying Article 78 petition. The court granted the stay, and ordered respondents to refrain from imposing any disciplinary penalty on rn date for the Amended petitioner during the pendency of this proceeding; and set the retu

6 Petition for June 8, On May 11, 2011, respondents informed the court of their intention to move to reargue the court' s May 5 Order to the extent it stayed enforcement, 2011, Justice Marber recused herself of disciplinary proceedings. By Order dated May 11 from hearing this matter. By letter dated May 16, 2011, respondents respectfully requested Justice Marber to vacate the May Order on the grounds that the basis for recusal existed at the time she signed the Order granting the stay. Justice Marber has not responded. On May 26, 2011, respondents moved by Order to Show Cause to reargue the stay pursuant to CPLR 2221 (a) and (d). The motion to reargue was set for June 8, 2011, the return date as the Amended Petition. On June 29, 2011, after oral argument, this Court (Lally, J.) denied respondents ' mo tion for an order pursuant to CPLR 2221 granting leave to reargue petitioner s application for a temporary restraining order. The Court held that, J.) misapprehended or respondent "has failed to demonstrate that the Court (Marber overlooked any relevant issues of fact or misapplied any controlling principles of law in rendering its prior decision (citations omitted). " Respondents now answer the amended petition and submit a memorandum of law in opposition thereto. laws was Petitioner maintains that (i) the February 15, 2011 amendment to the by- laws regulating amendments not made in accordance with the relevant provision of the by-, Section 4 of the November thereto, (H) the ShOA Board waived enforcement of Article IX 2003 by- laws by failing to require petitioner to sign an agreement in accordance with Article (Hi) IX, Section 4 prior to or concurrent with the commencement with his term as President, petitioner can only be bound by the provisions of the November 2003 bylaws as were in effect on the date his current term as President commenced, and (iv) the agreement

7 required by the February 15, 2011 " amendment" to Article IX, Section 4 is tantamount to an unfair, retroactive, restrictive covenant., in fact, execute and submit to the ShOA Petitioner further points out that he did, This agreement Board an agreement conforming to his obligations on March 24 provides, in pertinent part, that I agree that, as a condition of accepting the position as President of the Association, forthe term commencing January, 2008 and ending December , I am prohibited from accepting any salaried, non-competitive appointed position (acting or actual) with the County of Nassau except the position of Teacher, while actively serving as President of the Association. I n opposition to the Amended Petition, respondents assert that respondents' actions laws were properly ar:ended, the were rational and neither arbitrary and capricious; the bythirds vote amendment was adopted by a unanimous vote as opposed to the required tworespondents have not waived enforcement of Article 1X, of the Board of Governors; Section 4 and, in any event, petitioner s signing of the pre-amendment negates the waiver argument; and the amendment is not retroactive but applies prospectively. Further prospective non- respondents assert that petitioner has no vested or existing right to a competitive civil service position with Nassau County in the future. Furthermore, the arguendo that it is, such amendment is not an improper restrictive covenant. Assuming with Nassau covenant is reasonably limited in time (one year) and scope (employment County, except for teaching) (see Gazzola- Kraenzlin v Westchester Medical Group, P. C. 10 AD3d 700, 702). pursuant to The amended petition sounds in the nature of mandamus to review whether a determination was made CPLR 7803(3) which provides that a court may review "

8 in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed., a court must ascertain whether there In reviewing an administrative determination (see, or whether it is arbitrary and capricious is a rational basis for the action in question Matter of Pell v Board of Ed. of Union Free School Dist. No 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231; see also Matter of Peckham Calogero 12 NY3d 424, 431; Matter of Deerpark Farms, LLC v Agricultural and Farmland Protection Board 70 AD3d 1037). An action is arbitrary and capricious of Orange County, (Matter of Pell v Board when it is taken without sound basis in reason or regard to the facts of Educ. of Unio(1 Free School Dist. No. of Towns of Scarsdale Mamaroneck of Birch Tree Partners, LLC v Town of East Hampton Westchester County, supra; Matter 78 AD3d 693). Thus (i)f the court finds that the determination is supported by a rational would have basis, it must sustain the determination even if the court concludes that it reached a different result than the one reached by the agency (Matter of Peckham v Calogero, supra; Kurcsics v Merchants Mut. Ins. Co. courts must defer to an administrative agency rational 49 NY2d ). Consequently, interpretation of its own regulations in its area of expertise Peckham v Calogero, supra). (Matter of As a general rule, a court will not interfere with the internal affairs of a not- for-profit corporation, including a labor union, absent a showing of fraud or substantial wrongdoing. (Matter of Gilheany v Civil Service Emp. Ass n Inc. New York State Soccer 59 AD2d 834; Football Ass n v United States Soccer Football A' ssn 18 Misc2d 112, 116).

9 It has been held that "(w)here proceedings to 1ry a member of a labor union are s legal rights, the courts will not conducted regularly and with proper regard forthe accused' interfere with a determination of the union. " (citations omitted) (Cohen Rosenberg, 262 AD2d 274, 275). Furthermore, U(t)he courts are not empowered to supervise the internal, after a fair affairs of labor unions or to review decisions made by their internal tribunals trial, in accordance with their own constitutions and bylaws. The courts will interfere only if it is made to appear that the acts charged did not constitute violations of the union observed (Polin Kaplan 257 NY 277)" constitution or that fair procedure was not (Dakchoylous Ernst, 282 AD 1101). The well-established rule governing interference by the courts with the internal affairs of voluntary associations and membership corporation in regard to their disciplinary proceedings is, that the court will look into the record to see whether the practice and laws of the organization proceeding has been in accordance with the constitution and by- whether the charges are substantial, and whether the member has had fair notice and opportunity to be heard. In short, has the member received fair play? If so, the court will not substitute its judgment for that of the organization (Vanderbilt Museum American Ass of Museums, 113 Misc2d 502, quoting People ex rei. Holmstrom Independent Dock Bldrs. ' Benevolent Union of Greater N. Y. & Vicinity, 164 App Div 267, 270). There was no such showing here. Petitioner had a full opportunity to present his case to the ShOA board and was represented by counsel. In view of the foregoing, petitioner has not established that the determination made by the ShOA lacked a rational basis or was arbitrary and capricious. Accordingly,

10 , the petition petitioner s request for a stay pursuant to CPLR 7805 has been rendered moot is denied and the proceeding is dismissed. Settle Order and Judgment on notice. Dated: lug s 1,011 adams-imm,etal #2/art78(memodec)