May 04, 2021

Court rules appointing authority's imposing the disciplinary penalty of termination "shocking to one's sense of fairness" under the circumstances

Petitioner in this CPLR Article 78 proceeding challenged the appointing authority's [Town] dismissing her from her position with the Town after she was found guilty of four charges alleging misconduct and insubordination arising from an incident in which Petitioner "took approximately $181 from the Town's petty cash fund."*

At her Civil Service Law §75 disciplinary hearing Petitioner maintained that she intended only to borrow the money and to replenish the fund later. Addressing this representation, the Appellate Division said "it was undisputed that [Petitioner] left a note in the [Town's] petty cash envelope indicating that she owed money to the fund."

The Appellate Division modified the Town's determination "on the law" and annulled that part of the Town's determination finding Petitioner guilty of charges 1 and 2,  finding charges 1 and 2, which charged her respectively with theft and larceny, was not supported by substantial evidence** and vacated the penalty of termination.

The court explained that "A person "commits larceny when, with intent to deprive another of property or to appropriate the same to him[- or her]self or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof." Here, said the Appellate Division, it concluded that Petitioner's actions, "particularly the creation and placement of the note" indicating that she "owed money to the fund" are inconsistent with an intent to deprive or appropriate and annulled that part of the Town's finding Petitioner guilty under charges 1 and 2.

However, said the court, with respect to charges 3 and 4, alleging Petitioner had violated certain Town's policies, Petitioner's contention that the charges 3 and 4 are not supported by substantial evidence of insubordination "is not properly before us because it [was] not raised in the petition."

In light of Petitioner's "32 years of service to the Town, her impending retirement, and the absence of grave moral turpitude," the majority of the court, citing the so-called Pell Doctrine,*** concluded that the penalty of termination was "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." 

The matter was then remitted to the Town for imposition of an "appropriate penalty less severe than termination."

* The decision notes that Petitioner contended, and the Town "correctly conceded," imposing a penalty of a six-month suspension without pay would be "illegal."

** Presiding Justice Carni and Justice Curran, dissenting, said that in their view [1] the determination of Petitioner's guilt with respect to charges 1 and 2 was supported by substantial evidence; [2] there was evidence from which a reasonable mind could conclude that Petitioner did not intend to return the funds taken; and [3] the penalty of termination was not "so disproportionate to the offense[s] as to be shocking to one's sense of fairness and thus does not constitute an abuse of discretion as a matter of law."

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

Click HERE to access the text of the Appellate Division's ruling.

 

CAUTION

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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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 neither the publisher nor members of the staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is advised to seek such advice from a competent professional.