Emery v. LeFevreEmery v. LeFevre
Appeal from a judgment of the Supreme Court at Special Term (Shea, J.), entered May 13,1983 in Clinton County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determinаtion of the Commissioner of the Department of Correctional Services denying petitioner’s aрplication for outside employment. Petitioner has been employed by the New York State Department of Correctional Services (department) as a correction officer at Clinton Correctional Facility since 1961. On June 26, 1978, petitioner submitted a request to the department, as required by rule 102.4 of the employees’ manual, for permission to engage in outside employment. Although petitioner’s rеquest was denied by Superintendent E. S. LeFevre, on the ground that petitioner had a poor attendance record, as a result of which he had received an unsatisfactory performance rating, petitioner did engage in outside employment at the United States Immigration Service. In August, 1981, Superintendent LeFevre recommended that disciplinary action be taken against petitioner and instituted an investigatiоn to determine the extent to which petitioner had been abusing sick leave in connection with outside employment. The disciplinary procedures resulted in a notice of discipline dated August 10, 1982 which was contested by petitioner through arbitration procedures. The notice of discipline was ultimately upheld and petitioner fined $500. Petitioner again requested permission to engage in outside employment on February 17, 1983. Superintendent LeFevre recommended to respondent Commissioner of Correctiоnal Services that petitioner’s request be denied. On March 10,1983, respondent LeFevre notified petitiоner of the decision disapproving his request and told petitioner that he could