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Wednesday, January 29, 2014

An administrative disciplinary penalty that is within the discretion of the reviewing agency to impose will not be disturbed by the court


An administrative disciplinary penalty that is within the discretion of the reviewing agency to impose will not be disturbed by the court
2014 NY Slip Op 00261, Appellate Division, Third Department

The Board of Regents suspended an individual’s [LPN] license to practice as a licensed practical nurse in New York for two years following her pleading guilty to petit larceny to satisfy charges against her for fraudulently obtaining unemployment insurance benefits.LPN was sentenced to three years of probation and ordered to pay restitution in the amount of $17,860.50.

The State Education Department's Office of Professional Discipline then sought to impose an administrative disciplinary penalty on LPN based on her criminal conviction.Following a hearing, the Office of Professional Discipline advocated for a revocation of LPN's license. 

However, the Regents Review Committee recommended that LPN's license be suspended for two years. The Board of Regents accepted the Review Committee's recommendation. LPN sued, challenging the “appropriateness of the penalty” imposed on her by the Board of Regents.

Applying the Pell Doctrine,**the Appellate Division said that an administrative penalty that is within the discretion of the reviewing agency to impose will not be disturbed unless it is so disproportionate to the offense as to shock one's sense of fairness. 

Here, said the court, notwithstanding the recommendation of the Office of Professional Discipline, the Board, considering mitigating circumstances: the lack of any direct relation between LPN's misconduct and her work as a licensed practical nurse, and LPN’s “genuine remorse,” determined that determined that a significant suspension of LPN’s license was warranted “based on the amount of money stolen over a 10-month period.”

LPN had argued that, in addition to these factors, the economic impact of the suspension on her family should be taken into consideration. However the Appellate Division said that the record indicates that the Board was aware of LPN’s financial situation.

Under the circumstances, including LPN's admitted breach of the standards of honesty and integrity expected of a professional, the court said that the penalty imposed by the Board of Regents was not so disproportionate to her offense as to shock one's sense of fairness and dismissed LPN’s appeal.

* Education Law §6509[5][a][i] indicates that “Being convicted of committing an act constituting a crime under: (i) New York State law” constitutes professional misconduct.

** Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222

The decision is posted on the Internet at:
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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