This is an Article 78 proceeding in which petitioner is seeking a judgment annulling 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, (iii) 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 28, 2011 determination pending the hearing and determination of the instant petition.

Petitioner has been a correction officer with the Nassau County Sheriff's Department, Division of Corrections, since July 9, 1982. Petitioner is now a Correction Captain with the Nassau County Sheriff's Department and is the current President of the aforesaid Association. Petitioner has held this post since 1993. Petitioner's current term as President runs from January 1, 2008 until December 31, 2011. At the time his current term commenced, the ShOA Constitution and by-laws in effect were those dated November 2003 (the "November. 2003 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, non-competitive 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 recent years of said Honorarium. This shall include overlapping, incumbent terms of office.

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," (i.e. 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 by-laws, no such agreement was ever presented or provided to petitioner for signature prior to or concurrent with his installation as President on January 1, 2008.

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 1X, 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 [*2]he/she shall be 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 an elected Office in this Association or within one (1) year of service 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 service in office of the Sheriff Officers Association up to a maximum total 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," (i.e. 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 25, 2011, 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 Board 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 1X, Section 4 of this Association's Constitution and by-laws as amended February 15, 2011." The Board scheduled petitioner's disciplinary hearing to take place on April 20, 2011. 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 20, 2011. Petitioner named each of the Board of Directors as respondents herein. On 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, 2011.

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 28th 2011 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 [*3]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's Constitution and by-laws, as amended February 15, 2011. 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, 2011."

On May 2, 2011, petitioner amended the petition, seeking to stay the enforcement of any disciplinary penalties. At the May 5th 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 petitioner during the pendency of this proceeding; and set the return date for the Amended Petition for June 8, 2011. On May 11, 2011, respondents informed the court of their intention to move to reargue the court's May 5th Order to the extent it stayed enforcement of disciplinary proceedings. By Order dated May 11, 2011, Justice Marber recused herself from hearing this matter. By letter dated May 16, 2011, respondents respectfully requested Justice Marber to vacate the May 5, 2011 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' motion for an order pursuant to CPLR 2221 granting leave to reargue petitioner's application for a temporary restraining order. The Court held that respondent "has failed to demonstrate that the Court (Marber, J.) misapprehended or 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.

Petitioner maintains that (i) the February 15, 2011 amendment to the by-laws was not made in accordance with the relevant provision of the by-laws regulating amendments thereto, (ii) the ShOA Board waived enforcement of Article IX, Section 4 of the November 2003 by-laws by failing to require petitioner to sign an agreement in accordance with Article IX, Section 4 prior to or concurrent with the commencement with his term as President, (iii) petitioner can only be bound by the provisions of the November 2003 by-laws as were in effect on the date his current term as President commenced, and (iv) the agreement required by the February 15, 2011 "amendment" to Article IX, Section 4 is tantamount to an unfair, retroactive, restrictive covenant.

Petitioner further points out that he did, in fact, execute and submit to the ShOA Board an agreement conforming to his obligations on March 24, 2011. This agreement provides, in pertinent part, that,

I agree that, as a condition of accepting the position as President of the Association, for the term commencing January 1, 2008 and ending December 31, 2011, I am prohibited from accepting any salaried, non-competitive appointed position (acting or actual) with the [*4]County of Nassau except the position of Teacher, while actively serving as President of the Association.

In opposition to the Amended Petition, respondents assert that respondents' actions were rational and neither arbitrary and capricious; the by-laws were properly amended, the amendment was adopted by a unanimous vote as opposed to the required two-thirds vote of the Board of Governors; respondents have not waived enforcement of Article 1X, 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, respondents assert that petitioner has no vested or existing right to a prospective non-competitive civil service position with Nassau County in the future. Furthermore, the amendment is not an improper restrictive covenant. Assuming arguendo that it is, such covenant is reasonably limited in time (one year) and scope (employment with Nassau County, except for teaching) (see Gazzola-Kraenzlin v Westchester Medical Group, P.C., 10 AD3d 700, 702).

The amended petition sounds in the nature of mandamus to review pursuant to CPLR 7803(3) which provides that a court may review "whether a determination was made 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."

In reviewing an administrative determination, a court must ascertain whether there is a rational basis for the action in question, or whether it is arbitrary and capricious (see 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 v Calogero, 12 NY3d 424, 431; Matter of Deerpark Farms, LLC v Agricultural and Farmland Protection Board of Orange County, 70 AD3d 1037). An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, supra; Matter of Birch Tree Partners, LLC v Town of East Hampton, 78 AD3d 693). Thus, "[i]f the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency" (Matter of Peckham v Calogero, supra; Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 459). Consequently, "courts must defer to an administrative agency's rational interpretation of its own regulations in its area of expertise" (Matter of Peckham v Calogero, supra).

"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., 59 AD2d 834; New York State Soccer Football Ass'n v United States Soccer Football A'ssn, 18 Misc 2d 112, 116).

It has been held that "[w]here proceedings to try a member of a labor union are conducted regularly and with proper regard for the accused's legal rights, the courts will not interfere with a determination of the union." (citations omitted) (Cohen v Rosenberg, 262 App Div 274, 275). Furthermore, "[t]he courts are not empowered to supervise the internal affairs of labor unions or to review decisions made by their internal tribunals, after a fair [*5]trial, in accordance with their own constitutions and by-laws. The courts will interfere only if it is made to appear that the acts charged did not constitute violations of the union constitution or that fair procedure was not observed (Polin v Kaplan, 257 NY 277)" (Dakchoylous v Ernst, 282 AD 1101).

"The well-established rule governing interference by the courts with the internal affairs of voluntary associations and membership corporations in regard to their disciplinary proceedings is, that the court will look into the record to see whether the practice and proceeding has been in accordance with the constitution and by-laws of the organization, 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 v American Ass'n of Museums, 113 Misc 2d 502, quoting People ex rel. Holmstrom v Independent Dock Bldrs.' Benevolent Union of Greater NY & 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, petitioner's request for a stay pursuant to CPLR 7805 has been rendered moot, the petition is denied and the proceeding is dismissed.

Settle Order and Judgment on notice.

Dated: August 31, 2011

_______________________

UTE WOLFF LALLY, J.S.C.

adams-imm,etal,#2/art78(memodec)