N.B. Effective December 1, 2017, only registered individuals may access the text of the more then 4,800 case summaries running from Abandonment of Position to Zero Drug Tolerance Policy posted on New York Public Personnel Law.

Examples of summaries currently posted on this searchable database are provided below. Full access to the database, however, requires a one-time payment of $100 [U.S.] to become a registered NYPPL user.

Click the button below to pay your registration fee with your credit card via PayPal:

Your license key will be e-mailed to you the work-day following PayPals' approval of your payment. Any new or supplemental material that, from time to time, may be posted will be automatically made available to registered individuals without cost.

To search this database type in a word or phrase in the box in the upper left and any material containing the word or phrase will be displayed for your review.

Thursday, December 22, 2016

Courts, when determining if a penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness, must consider all the relevant circumstances

Courts, when determining if a penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness, must consider all the relevant circumstances
2016 NY Slip Op 08412, Appellate Division, Third Department

A police officer [Petitioner] was observed on a surveillance video pumping gasoline from his employer’s fueling system into his personal vehicle. Following an investigation by the State Police conducted an investigation. The investigation revealed that Petitioner has  access his employer’s fueling system and told the State Police investigator that he filled his personal vehicle and then made a sworn written statement describing, among other things, his accessing his employer’s fueling system to obtain gasoline.

Petitioner was charged with violating his employer’s rules of conduct by “wrongfully taking gasoline … and by making a false statement under oath. 

Following the disciplinary hearing, the Hearing Officer found:

1. The evidence did not substantiate the charges that Petitioner wrongfully took gasoline from his employer;  

2. The evidence did support a finding that he made a false statement under oath to the State Police.

As to the penalty to be imposed, the hearing officer recommended the termination of Petitioner’s employment. The appointing authority adopted the Hearing Officer's findings of fact in their entirety and the hearing officer's recommendation as to the penalty to be imposed and terminated Petitioner.

Petitioner commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order annulling the appointing authority’s and the matter was transferred to the Appellate Division.

One of the major issues raised by Petitioner concerned his contention that the penalty imposed, termination, was excessive. The Appellate Division observed that in evaluating whether the penalty is excessive, a Court "must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness." In so doing, said the court, "[t]his calculus involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

The Appellate Division said that it was mindful of "the high standard of character to which police officers are held" and the “substantiated charges of providing a false statement under oath should not go unpunished.”

Noting that all six charges pertaining to the false statement given to the State Police were sustained by the Hearing Officer, Petitioner was subject to the penalty or punishment provided in Civil Service Law §75(3), including "a reprimand, a fine not to exceed one hundred dollars . . ., suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal." 

Here, said the court, without further expansion on the Hearing Officer's findings and recommendations, the appointing authority adopted the harshest penalty, dismissal.

The Appellate Division then noted that it had sustained:

1. A two-month suspension where a police officer admitted to falsely reporting an incident;

2. A two-month suspension, letter of reprimand and $100 fine when a police officer was found guilty of improperly completing an offense report, refusing to comply with an order and refusing to report to a superior officer; and

3. A 30-day suspension and six months of probation for a State Trooper charged with misconduct for advising a friend to revoke her consent to the search of her residence by other troopers who were conducting a marihuana investigation.

As Petitioner’s personnel record does not indicate any other disciplinary actions or warnings and considering he had served as a police officer for 14 years and that the charges that he wrongfully took his employer's gasoline for his personal use were not sustained and there was no financial loss to the employer, the Appellate Division said that based on the totality of the circumstances, that the penalty imposed is so disproportionate to the offense as to shock its sense of fairness.

Accordingly, the Appellate Division remitted the matter to appointing authority for a redetermination of the disciplinary penalty to be imposed. 


A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.


Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material in this blog is presented with the understanding that the publisher is not providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader should seek such advice from a competent professional.

Items published in NYPPL may not be used for commercial purposes without prior written permission to copy and distribute such material. Send your request via e-mail to publications@nycap.rr.com

Copyright© 1987 - 2017 by the Public Employment Law Press.


N.B. From time to time a political ad or endorsement may appear in the sidebar of this Blog. NYPPL does not have any control over such posting.