March 24, 2021

Determining a reasonable disciplinary penalty to be imposed on the employee "under the circumstances"

The petitioner [Plaintiff] in this CPLR Article 78 action challenging his termination from his position after being found guilty of disciplinary charges brought against him alleging "gross misconduct-falsification of business records." The Appellate Division, after granting Plaintiff's petition to review the penalty imposed by the Employer [Appointing Authority], remitted the matter to the Appointing Authority for the imposition of a lesser penalty.*

The Appointing Authority did, in fact, imposed a lesser penalty: demotion to a lower grade position. Plaintiff sought review of this new penalty. 

Supreme Court vacated the penalty of demotion and imposed a still lesser disciplinary penalty, a 30-day suspension without pay. Supreme Court further directed that Plaintiff "be restored to his prior position" and remitted the matter to the Appointing Authority to calculate the "back salary and lost compensation" owed to the Plaintiff. The Appointing Authority appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division, citing Matter of Waldren v Town of Islip, 6 NY3d 735 and other court decisions, explained that an "administrative penalty must be sustained unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." 

The court then opined that an administrative penalty is shocking to one's sense of fairness "if the sanction imposed is so grave in its impact on the individual subject to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the dereliction of the individual."

Sustaining the Supreme Court determination that the new penalty imposed by the Appointing Authority "was again shocking to one's sense of fairness," the Appellate Division observed that "[t]he penalty of demotion by four salary grades, resulting in an approximate 37% decrease in salary, was so grave in its impact on the [Plaintiff] that it was disproportionate to the misconduct" involved.

In mitigation of imposing the penalty of demotion the court opined that Plaintiff, "had never, in his more than 20-year career with the [agency], been subject to discipline before he was found guilty of the instant offense, and had received positive work performance reviews." In addition, the Appellate Division noted that the Plaintiff was in poor health "when he committed the subject act of misconduct."

Under the particular circumstances of this case, however, the Appellate Division ruled that the reduced penalty imposed by the Supreme Court "was inadequate to address the gravity of the [Plaintiff's] misconduct and the resulting harm to the appellants and the public." Vacating the imposition of a penalty of a 30-day suspension without pay, the Appellate Division remitted the matter to the Appointing Authority "for the imposition of a penalty of one-year suspension without pay."

* See Matter of Sullivan v County of Rockland, 150 AD3d 743.

Click HEREto access the text of the Appellate Division's decision in this matter.


A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Click on  for more information.