Requested Relief

In this Article 78 proceeding, petitioner, LEROY KUROT, seeks an order, inter alia, declaring that the determination of the respondents, EAST ROCKAWAY FIRE DEPARTMENT (hereinafter referred to as the "FIRE DEPARTMENT"), EAST ROCKAWAY FIRE DEPARTMENT FIRE COUNCIL (hereinafter referred to as the "FIRE COUNCIL") and the INCORPORATED VILLAGE OF EAST ROCKAWAY (hereinafter referred to as the "VILLAGE"), in terminating his position as an ex-Captain in the FIRE DEPARTMENT was an arbitrary and capricious abuse of discretion, and rescinding the determination of the FIRE COUNCIL, nunc pro tunc, and restoring petitioner to the position he held prior to his suspension and termination. Respondents oppose the motion which is determined as follows:

Petitioner, a volunteer firefighter in the Liberty Hose Company of the FIRE DEPARTMENT since 1976, was a devoted and loyal firefighter who rose through the ranks to become Captain from 2000 to 2001, and thereafter an ex-Captain from 2001 until his termination on October 4, 2007. The circumstances of his termination arise from petitioner's position as advisor to the FIRE DEPARTMENT's "Junior Fire Department Program", a position he held from 2001 to 2007, where he was involved in developing future firefighters for the FIRE DEPARTMENT, in increasing its involvement in the local [*2]community and in teaching fire prevention and safety. It appears that, in September 2006, in an effort to outfit the Junior Fire Department members with FIRE DEPARTMENT tee shirts for an upcoming Fire Prevention Day, petitioner approached the Liberty House Chief, James Henshaw, and asked for permission to purchase the tee shirts through the U.S. Department of Homeland Security SAFER Grant Award under the Recruitment and Retention Program. Following FIRE DEPARTMENT procedure, Henshaw instructed the petitioner to procure the tee shirts by soliciting formal price quotes from at least three (3) vendors.

At this point, petitioner acknowledges that his actions departed from accepted procedure. Concerned that the tee-shirts would not arrive in time for Fire Prevention Day, and without obtaining competitive bids, petitioner purchased the tee-shirts from Jay's Army and Navy Store, a vendor he had utilized over many years, based upon his belief that it offered the lowest price for bulk apparel orders. Thereafter, in a belated attempt to satisfy Henshaw's instructions, petitioner claims he solicited two (2) additional price quotes from other vendors, Goldman Brothers and Galls, after he had placed the order for the tee-shirts with Jay's Army and Navy Store. Much to his chagrin, the price quotes from Goldman Brothers and Galls were lower than the price quote from Jay's Army and Navy Store. In a misguided attempt to avoid discovery that he had not secured the lowest price, petitioner then altered the two (2) additional quotes to make them appear higher than the price quote from Jay's Army and Navy.

In January 2007, when faced with apparent discrepancies in the invoices submitted by petitioner, Assistant Chief Robert Klose appointed ex-Chief James Carrigan to investigate, and Carrigan contacted Jay's Army and Navy and the two (2) other vendors, and learned that the invoices had been altered. Thereafter, Carrigan reported his findings to Klose, who notified the VILLAGE Board of Trustees and the VILLAGE Attorney. The FIRE DEPARTMENT subsequently submitted the matter to the Nassau County District Attorney. Indeed, petitioner states that, on January 11, 2007, a day after a meeting of the FIRE COUNCIL, the FIRE DEPARTMENT's disciplinary body composed of Chiefs and Wardens from the three (3) fire houses in the FIRE DEPARTMENT, Klose called petitioner regarding the events related herein and to advise of the referrals to law enforcement bodies, and petitioner admitted to Klose that he had altered the price quotes. Petitioner states that during his telephone conversation, Klose suggested that petitioner was to take a leave of absence and remain on leave until the FIRE COUNCIL deposed of the matter. Thereafter, on January 14, 2007, petitioner was summoned to a meeting where he was told he was being placed on a leave of absence effective immediately. Shortly thereafter, petitioner received a letter from Klose, dated January 14, 2007, informing him that he was suspended from all FIRE DEPARTMENT activities effective immediately, until the matter was disposed of by the FIRE COUNSEL. It appears that on July 23, 2007, the District Attorney's office advised the VILLAGE attorney that it declined to prosecute the matter, and would leave petitioner's punishment up to the discretion of the FIRE COUNCIL.

In a letter dated September 14, 2007, Klose and Carrigan requested that a hearing be held, pursuant to General Municipal Law §209-1, so that appropriate disciplinary action could be taken. The FIRE DEPARTMENT preferred nine (9) disciplinary charges against petitioner in connection with the tee shirt purchase, as follows:

1.Ex-Captain Leroy Kurot knowingly and willfully violated the Purchasing Policy [*3]of the East Rockaway Fire Department and the Village of East Rockaway.

2.Ex-Captain Leroy Kurot knowingly and willfully falsified and submitted a fraudulent Invoice for payment.

3.Ex- Captain Leroy Kurot knowingly and willfully falsified and submitted a fraudulent quote for Goldman Brothers.

4.Ex-Captain Leroy Kurot knowingly and willfully falsified and submitted a fraudulent quote for Galls Incorporated.

5.Ex-Captain Leroy Kurot knowingly and willfully falsified and submitted a fraudulent quote for Galls Incorporated.

6.Ex-Captain Leroy Kurot knowingly and willfully used the logo "ENGINE FDNY" for shirts of the East Rockaway Junior Fire Department without knowledge or approval from the Fire Department of the City of New York.

7.Ex-Captain Leroy Kurot knowingly and willfully lied to the Chiefs and Officers present at the January 10, 2007 meeting.

8.Ex-Captain Leroy Kurot knowingly and willfully violated the Constitution and By-laws of the East Rockaway Fire Department in that his conduct has been detrimental to the Good and Welfare, and greatly exhibits conduct unbecoming an officer and member of the Department.

Eventually, on October 4, 2007, a hearing was held at which time petitioner, who chose not to be represented by counsel, presented his position and stated his regret for his actions and deep remorse for the poor choice he made in altering the price quotes. Petitioner contended that he did not secure any financial gain from his actions and his only motivation was to timely secure the tee-shirts and to avoid embarrassment because he did not secure the lowest bid. Petitioner acknowledged his wrongdoing and took the blame for his actions. He states that, during the period from January 14, 2007 until October 4, 2007, he was repeatedly assured by members of the FIRE COUNCIL as well as three (3) FIRE DEPARTMENT Chiefs, that he would not be terminated and that he would eventually be reinstated to active duty with time served. Notwithstanding same, the FIRE COUNCIL found petitioner guilty of eight (8) out of nine(9) charges against him and voted 5-3 in favor of terminating petitioner's position in the FIRE DEPARTMENT.

In support of the motion to rescind the determination of the FIRE COUNCIL as arbitrary and capricious, council for petitioner argues that terminating petitioner's position, and the loss of his pension and benefits after thirty-two (32) years of loyal service as a volunteer firefighter, is an abuse of discretion. Counsel argues that petitioner's misconduct was de minimus in nature and that his termination was the product of rampant anti-Semitism that has infected the FIRE DEPARTMENT for years. Moreover, counsel contends that the FIRE COUNCIL has engaged in similar conduct for which petitioner was terminated when, in or around September 2007, they voted to change a liquor bill to a "refreshment" bill, in order to secure VILLAGE funding for the liquor purchase. Counsel asserts that petitioner has suffered significant distress, embarrassment and humiliation as a result of his termination and the FIRE COUNCIL's actions were arbitrary, capricious, an abuse of discretion and a violation of petitioner's due process and civil rights.

In opposition to the motion, counsel for respondents states that, pursuant to GML [*4]§209-1, the FIRE COUNCIL had the authority to entertain removal proceedings for petitioner, a volunteer firefighter, based upon his misconduct, citing Sommers v Board of Fire Com'rs. Of Mastic Beach Fire Department, 99 AD2d 784, 472 NYS2d 33 (2nd Dept. 1984). Counsel for respondents contends that petitioner's failure to procure competitive bids for the purchase of the tee shirts could have jeopardized the FIRE DEPARTMENT's entire federal grant program and his forging of documents, to make it appear that he actually complied with the bidding procedure, established a pattern of deceit that called into question the integrity of petitioner and of the entire FIRE DEPARTMENT which warranted petitioner's termination. Respondents invoke the specter of the Roslyn School District scandal and claim that "petitioner admittedly misused federal funds and engaged in an elaborate cover up scheme that left the Department exposed to the possibility of losing future funding as well as credibility in the court of public appeal". Counsel points out that, while petitioner seeks to attribute the severity of his punishment to discrimination, the lone discriminatory comment alleged is attributed to an individual who recused himself from the termination decision. Counsel for respondents asserts that petitioner can not overcome the legitimate non-discriminatory reason for his termination and that the application should be denied, as a matter of law.

In an Article 78 proceeding, it is well settled that a court many not substitute its judgment for that of the body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion. See, Jennings v N.Y.S. Office of Mental Health, 90 NY2d 227, 660 NYS2d 352, 682 NE2d 953 (C.A. 1997). When guilt of an offense has been confirmed and a punishment has been imposed, a Court may only set aside the administrative agency's disciplinary determination if the measure of punishment or discipline imposed is " so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness'". (citation omitted) Pell v Board of Education, et al, 34 NY2d 222, 356 NYS2d 833, 313 NE2d 321 (C.A. 1974); see also, Sommers v Board of Fire Com'rs. Of Mastic Beach Fire Department, supra .

. . . [A]result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution , or to the public generally visited or threatened by the derelictions of the individuals.

There is no doubt that the reason for the enactment of the statute (CPLR 7803) was to make it possible, where warranted, to ameliorate the harsh impositions of sanctions by administrative agencies. That purpose should be fulfilled by the courts not only as a matter of legislative intention, but also in order to accomplish what a sense of justice would dictate. Consideration of the length of employment of the employee, the probability that a dismissal may leave the employee without any alternative livelihood, his loss of [*5]retirement benefits, and the effect upon his innocent family, all play a role, but only in cases where there is absent grave moral turpitude and grave injury to the agency involved or the public weal. But deliberate, planned, unmitigated larceny, or bribe taking, or demonstrated lack of qualification for the assigned job is not of that kind.

In the case at bar, while a violation of competitive bidding procedures is serious, it is not asserted that petitioner was motivated by any pecuniary gain or venality, but by a desire to timely purchase approximately twenty-five (25) tee shirts and twenty-five (25) sweat shirts for the Junior Fire Department, at a cost of less than thirty ($30) dollars per item. To that end, the petitioner inappropriately disregarded a direct order from his superior to obtain three (3) price quotes before placing the order and then, in a fit of embarrassment, wrongly attempted to coverup his failure to obtain a competitive bid. Petitioner appears to be suitably contrite and has suffered public embarrassment and humiliation among his fellow firefighters.

After a careful reading of the submissions herein, it is the judgment of the Court that complete termination of this ex-Captain from the FIRE DEPARTMENT, and the loss of his small pension and retirement benefits, after thirty-two (32) years of valued service to the FIRE DEPARTMENT, is a punishment that is so disproportionate to the admitted acts of wrong doing, in light of all the circumstances, as to be shocking to the Court's sense of fairness. In the Court's view, the cases cited by respondents to uphold termination can be readily distinguished, as they involve pleas of guilty to crimes in which the employees violated the public trust (Sommers v Board of Fire Com'rs. Of Mastic Beach Fire Department, supra ) or failed to cooperate with a criminal investigation (Waugh v New York City Fire Department, 34 AD3d 401, 826 NYS2d 13 [1st Dept. 2006]), not present herein. No crime, grave moral turpitude or grave injury to the agency has been demonstrated. Nor can the facts herein be compared to the Roslyn School scandal where employees embezzled millions of dollars from public funds for their own use. While the Court rejects petitioner's contentions that he was not afforded due process and finds that discrimination based upon rampant anti-Semitism has not been demonstrated, it is the Court's view that a punishment more in keeping with the wrong doing complained of is appropriate. Accordingly, it is hereby

ORDERED, that the determination of the respondents terminating petitioner, LEROY KUROT from the EAST ROCKAWAY FIRE DEPARTMENT is vacated as it is found to be an arbitrary and capricious abuse of discretion; and it is further

ORDERED, that petitioner, LEROY KUROT, is restored to the position he held prior to his suspension and termination, with restoration of all benefits; and it is further

ORDERED, that, based on the record before the Court, a suitable punishment for the inappropriate conduct of petitioner, LEROY KUROT, as detailed above, is an eight (8) [*6]month suspension from the FIRE DEPARTMENT, without pay, nunc pro tunc, to commence on October 4, 2007.

All further requested relief not specifically granted is denied.

This constitutes the decision and judgment of the Court.

Dated: April 4, 2008

________________________

WILLIAM R. LaMARCA, J.S.C.

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