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February 18, 1983

Robert G. BARON, Plaintiff,
Andrew P. MELONI, Individually and as Sheriff of the County of Monroe, and The County of Monroe, Defendants

Telesca, District Judge.

The opinion of the court was delivered by: TELESCA


TELESCA, District Judge.

 The plaintiff, Robert G. Baron (Baron), was a deputy sheriff with the Monroe County Sheriff's Department until he was terminated on May 7, 1980 for insubordination by disobeying orders of his superiors. He then commenced this action pursuant to 42 U.S.C. 1983 claiming violation of constitutional rights guaranteed by the First and Fourteenth Amendments.

 Both parties move for summary judgment and essentially concede there are no serious differences with the factual background. Fed.Rule Civ.P. 56(c).


 The plaintiff was sworn in as a Deputy Sheriff in the Monroe County Sheriff's Department on February 22, 1971, and was for the most part assigned to the road patrol. On April 20, 1978 the plaintiff's patrol vehicle was observed in the driveway of Angelo Vaccaro's home, then under surveillance by the Organized Crime Task Force as the residence of a reputed mobster. The vehicle, a marked Sheriff's car, was observed at the house from 1:00 A.M. until 5:00 A.M. when plaintiff was on duty, and the Task Force notified the Sheriff's Office of these observations. Plaintiff in his affidavit to this Court admits having been in the Vaccaro home in March, 1978 to return a watch to ". . . Linda's [Vaccaro] home . . . and had coffee and left one-half hour later."

 On April 24, 1978, Baron was confronted with this information by the Chief of Detectives who ordered him not to associate with Linda Vaccaro, thereby disregarding Baron's disclaimer of any personal acquaintanceship with Linda Vaccaro. Plaintiff was subsequently observed in Linda Vaccaro's company on three separate occasions during June and July of 1978. On July 7, 1978, Baron was again ordered by Chief Deputy Thomas Cellura to refrain from associating with Linda Vaccaro; and on July 17, 1978, the Sheriff, (then William Lombard) filed disciplinary charges against plaintiff charging him with insubordination. Plaintiff was unsuccessful in State court in having the charges dismissed prior to an administrative hearing, and a hearing on these charges never materialized. See Baron v. Lombard, 50 N.Y.2d 896, 430 N.Y.S.2d 591, 408 N.E.2d 920 (1981).

 New charges were filed against the plaintiff on April 13, 1979, arising from plaintiff's continued association with Linda Vaccaro in violation of the Sheriff's order. Plaintiff again sought (in State court) to prevent the Sheriff from administratively proceeding on these charges, but his action was dismissed, no appeal was taken, and no hearing was held.

 On March 22, 1980, Linda Vaccaro was involved in an automobile accident while driving Baron's privately-owned automobile and on the same date, a third set of charges were filed against Baron alleging (1) insubordination for failing to follow the June, 1978 order to stay away from Linda Vaccaro, (2) conduct discrediting the Department, and (3) "consorting with persons of ill-repute". An administrative hearing was held on April 21 and 22, 1980; and on May 6, 1980, the hearing officer ruled that the defendant had violated the Sheriff's Department regulations proscribing insubordination and found that:

There were two orders given to Deputy Baron by superior officers having appropriate authority in the departmental chain of command to render such orders. The orders were specific and capable of understanding. There is no dispute that they were violated. (Emphasis supplied) *fn1"

 The hearing officer also determined that the orders given to Baron had a rational basis at the time they were given, and since they had never been rescinded or terminated, Baron had violated the orders by his "continual association with Linda Vaccaro". However, the hearing officer concluded in dictum that the original order no longer had any reasonable basis because "Mrs. Vaccaro does not appear to be the focus of any surveillance, investigation or prosecution", making it difficult "to envision any interest that the department can continue to have in restraining Deputy Baron's right to associate with her". The hearing officer was referring to the fact that Angelo Vaccaro was found guilty of felony charges in Federal Court in 1979 and is presently incarcerated as a result of that conviction, which has been affirmed. *fn2" Vaccaro obtained a decree of divorce on June 16, 1980, and plaintiff and Linda Vaccaro were married on July 13, 1980.


 The question presented on this motion for summary judgment is whether Baron's failure to obey orders prohibiting his association with Linda Vaccaro which resulted in his dismissal for insubordination, presents a cognizable claim under 42 ...

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