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Tuesday, October 11, 2011

Recreation Specialist terminated after being found guilty of selling an alcoholic beverage to a minor

Recreation Specialist terminated after being found guilty of selling an alcoholic beverage to a minor 
Matter of Emmerling v Town of Richmond, 2011 NY Slip Op 06690, Appellate Division, Fourth Department


Craig J. Emmerling file an Article 78 action in an effort to obtain a court order annulling the Town of Richmond terminating him from his position as a Recreational Specialist.


Emmerling was charged with, and found guilty of, selling an alcoholic beverage to a minor in violation of Penal Law §260.20(2). He contended that the Town’s imposing the penalty of dismissal termination following a Civil Service Law §75 disciplinary hearing constituted an abuse of discretion by the Town.


The Appellate Division disagreed, ruling substantial evidence supports the determination in view of the fact that his duties involved extensive contact with children and that he had been told that he was required to act as a role model for them.

Citing the so-called “Pell Doctrine” [Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that the penalty of termination “is not so disproportionate to the offense, in light of all of the circumstances, as to shock one's sense of fairness.” 

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