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December 20, 2010
Modifying a disciplinary penalty
Brown v Penn Yan CSD, 275 AD2d 931
Knight v BOCES, App. Div., Fourth Dept., 275 AD2d 1038
Courts are frequently requested to review disciplinary penalties imposed on employees found guilty in administrative disciplinary procedures. The Brown and Knight decisions by the Appellate Division, Fourth Department, involved just such reviews.
The Brown decision:
The Brown decision illustrates the application of the so-called Pell doctrine [Pell v Board of Education, 34 NY2D 222] which bars the imposition of a disciplinary penalty that the court determines is disproportionate to the offense or offenses for which the employee was found guilty.
Penn Yan Central School District custodian James Brown was found guilty of a number of the disciplinary charges filed against him. Specifically, Brown was found guilty of:
1. failing to clean his assigned rooms adequately;
2. sweeping orange peels from the side of the cafeteria for which he was responsible to the side for which a co-worker was responsible; and
3. leaving work 20 minutes early.
The penalty imposed by the district: termination of employment. Brown appealed, claiming that the penalty of dismissal was unlawfully harsh.
The Appellate Division agreed, commenting that while there was substantial evidence in the record to support a finding of guilt, the penalty of dismissal was so disproportionate to the offense as to shock one’s sense of fairness.
One element used by the Appellate Division in justifying its mitigating the imposition of dismissal as a penalty was that Brown was found guilty of charges involving a single occurrence on three separate dates.
Another factor, said the court, was that [e]ven considering the prior incidents of similar misconduct for which [Brown] had received warnings, terminating Brown, a 12-year employee, was an excessive penalty within the meaning of the Pell doctrine.
Although a court would usually remand such a case to the appointing authority for its determination of a lesser penalty, here the Appellate Division decided to exercise its discretion and set the penalty itself. The penalty it imposed: suspension without pay or benefits for one year -- retroactive to October 29, 1999.
The Knight decision:
The BOCES terminated Kathryn Knight, a certified occupational therapy assistant, after she was found her guilty of abusing sick and personal leave and submitting a false claim for reimbursement.
The Appellate Division sustained Knight’s dismissal, holding that [a] high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed.
As to the application of the Pell Doctrine, the court commented that it cannot be said here that the penalty of termination, when considered in light of all of the circumstances of this case, is so disproportionate to the offense as to be shocking to one’s sense of fairness.
Some other considerations: While a court may sustain the disciplinary penalty imposed, remand the case to the appointing authority to impose a new, and lesser, penalty, or impose a lesser penalty as a matter of discretion, may it provide for the imposition of a harsher penalty?
Clearly there are precedents for the appointing officer to impose a harsher penalty than the one recommended by a disciplinary hearing officer. Russo v Wantagh UFSD, App. Div., No. 98-06421, decided March 22, 1999 is an example of such an action.
Although Russo protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty, the Appellate Division ruled that under the circumstances of this case, the termination of the petitioner’s employment was not so disproportionate to the offense as to shock one’s sense of fairness, again quoting the Pell standard.
Similarly, the Commissioner of Education occasionally substituted his judgment for that of a disciplinary panel in considering appeals from disciplinary actions taken under Section 3020-a prior to its amendment in 1994.
For example, in Shurgin v Ambach, 56 NY2d 700, the Court of Appeals affirmed the authority of the Commissioner to decide that a reprimand was a disproportionately lenient penalty for a very serious offense.
The hearing panel in Shurgin had imposed a reprimand as the penalty for the teacher’s poor judgment in showing his class pornographic films. The district appealed and the Commissioner authorized the district to terminate Shurgin.
As to the authority of a court to direct the imposition of a harsher penalty, in Ford v CSEA, 94 AD2d 262, the Appellate Division decided that it could remand the case for such a purpose. Its theory: under the circumstances a lesser penalty constituted a violation of a strong public policy and thus was irrational.
The issue arose in connection with disciplinary action taken against an employee of the Department of Mental Hygiene. The charge filed against the employee: having sexual relations with a patient.
The arbitrator found the employee guilty. Although the agency had sought to have the employee dismissed, the arbitrator imposed the penalty of a two-month suspension without pay because the patient consented to the sexual act that the arbitrator characterized as minimal patient abuse.
The agency head (Ford) appealed in an effort to have the arbitrator’s award vacated and the penalty of dismissal imposed.
The Appellate Division, concluding that the arbitrator exceeded his powers and made an irrational award in violation of ‘a public policy which is beyond waiver’ (by the State), remanded the matter for adjudication by a different arbitrator.
The court noted that “mental patients are incapable of “consent” in (this) context ....” The arbitrator’s determination of physical abuse cannot be passed off lightly with an adjective such as minimal. It found such a characterization by the arbitrator making the original determination appalling and the arbitrator’s refusal to impose the penalty of termination plainly irrational.
Another basis for vacating an arbitrator’s or hearing officer’s determination is a finding that the determination is pre-empted by a court ruling. For example, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are subsequently filed based on that same incident of theft, the hearing officer or the arbitrator may not find the employee not guilty of stealing.
As the court ruled in Kelly v Levin, 440 NY2d 424, acquitting an employee in an administrative disciplinary action is a reversible error if the individual previously was found guilty of a criminal act based on the same allegations.
The Kelly case involved a school business administrator against whom Section 3020-a charges alleging larcenies of school funds and bringing discredit upon the school district. The disciplinary panel the administrator guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges.
The Court held that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. Finding that hearing panel’s decision was based on a finding of guilt of the bringing discredit charge only, the matter was remitted to the panel for reconsideration of the appropriate penalty to be imposed in consideration of being found guilty of the larceny charges as well.
The reason: the standard of proof required in a criminal proceeding is greater than that in an administrative disciplinary proceeding. In a criminal case, the standard is proof beyond a reasonable doubt; in a Section 3020-a disciplinary action the standard is preponderance of the evidence, a significantly lower threshold upon which to base a finding of guilt.
However, what happens if the criminal conviction is subsequently reversed. In Beard v Newburgh, 259 AD2d 613, the court said that since the disciplinary arbitrator gave collateral estoppel effect to Beard’s conviction in the criminal action, the disciplinary award had to be vacated. Why so? Because, the court explained, the arbitration award was based exclusively on a criminal conviction that was reversed on appeal. The Appellate Division court directed that a new disciplinary hearing be conducted by the arbitrator.
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