Court rejects Albany sheriff’s investigator's discipline over secret recording

PHOTOGRAPHER: Justin Mason

Sheriff Craig Apple took too long to discipline an investigator for secretly recording him during an internal meeting at the department and then distributing the audio to the media, a state appeals court ruled.

Justices with the Appellate Division of the state Supreme Court found that Apple went beyond the 18 months he had to file a disciplinary action against Investigator Gabriel Rodriguez. Apple attempted to file a case against Rodriguez in September 2011, roughly 21 months after the investigator made the secret recording in January 2010.

In reaching the unanimous decision, the justices found the act of Rodriguez recording the conversation between Apple, then the undersheriff, and several other investigators didn’t amount to official misconduct, though it appeared Rodriguez violated the department’s recording policy.

“Here, the misconduct ‘complained of and described in the charges’ … among other deficiencies, does not allege that [Rodriguez] acted with the intent to gain a benefit, an essential element required for an official misconduct conviction,” Justice Edward Spain wrote in the decision released Thursday.

The recording made by Rodriguez surfaced in the media in June 2011, just as Apple was a candidate to replace the resigning Sheriff James Campbell. On the recording, Apple uses profanity and discusses manipulating the law.

Rodriguez faced a short suspension and a demotion in rank as a result of the disciplinary action. He continues to work with the department and has remained an investigator pending the outcome of the court case.

Albany County Attorney Thomas Marcelle did not return a call for comment. Apple said he hadn’t seen the ruling, but declined to comment.

“Unfortunately, it’s a personnel issue and I can’t comment,” he said.

Ronald Dunn, the attorney who argued the appeal for Rodriguez, said the discipline aimed at his client was a form of retribution for an ongoing civil rights case he filed against the department with the state Human Rights Commission. Though declining to discuss the discrimination case, he said the matter was nearing a resolution in 2011 when the county failed to take the proper corrective action and his client was forced to resubmit the claim.

“When he refiled, they filed the discipline cases,” he said.

The ruling Thursday effectively ends any discipline Rodriguez will face as a result of the recording and he could receive some additional money in back pay from the short time he was suspended in 2011. Dunn was unsure how much pay he sacrificed as a result of the suspension.