Petitioner was the administrator of the County's Adult Care Center [ACC], a nursing home. Following a disciplinary hearing, a Hearing Officer found Petitioner guilty of eight of the numerous charges filed against him pursuant to §75 of the Civil Service Law and recommended that he be dismissed from service. The ACC's appointing authority sustained the Hearing Officer's findings with respect to seven of the charges and terminated Petitioner's employment. Petitioner then commenced this CPLR Article 78 proceeding challenging the determination.
Central to evaluating the penalty imposed, dismissal, the Appellate Division noted "Petitioner either suggested to or directed a subordinate to share her login credentials for a database maintained by the Centers for Disease Control and Prevention [CDC] with another employee to enable that employee to fulfill ACC's COVID-19 reporting requirements while the subordinate was on vacation. The ACC contended that such behavior constituted misconduct in violation of ACC's rules and ethics policy,* and, also, displayed incompetence insofar as Petitioner failed to recognize that his behavior could have resulted in ACC incurring penalties.
Petitioner had been invited to register with CDC's partner portal to begin the process of obtaining access to the database which, if approved, would grant him privileges to input data into the database. Petitioner never logged on to the partner portal and was relying on another employee to do the COVID-19 reports when required.
The Appellate Division's decision notes that when an employee "refused to share her login information - fearing that doing so would violate [ACC's] rules and amount to a crime - [Petitioner]" became angry and purportedly stated, "I don't know why everything is such a big deal here". When told it was unlawful to ask the employee to share login information permitting "... reporting under someone else's credentials...", Petitioner allegedly replied, "why is everyone so uptight here."
The Appellate Division found that "substantial evidence exists" to support the Hearing Officer's determinations with respect to charges Nos. 3, 8, 9, 10 and 16, and said it was "unpersuaded by [Petitioner's] contention that the penalty of termination shocks the conscience and should be annulled."
Conceding that Petitioner had no prior disciplinary record and a long career as a health care administrator, the Appellate Division explained "when considering [Petitioner's] position as the administrator of a nursing home during the COVID-19 pandemic, which required the highest degree of integrity, diligence and competence in light of the vulnerability of ACC's clients and staff," it could not conclude that the penalty of termination was "so disproportionate to the charged offenses as to shock one's sense of fairness".
Citing Matter of Scuderi-Hunter v County of Delaware, 202 AD3d at 1317, quoting Matter of Young v Village of Gouverneur, 145 AD3d 1285, the court declined to disturb the penalty imposed, Petitioner's dismissal from his position.
* The record contains a copy of ACC's written code of conduct and a certification by Petitioner acknowledging its receipt. The code of conduct provided, in relevant part, that "[t]he County is committed to complying with the laws and regulations that govern the Federal and State programs that it administers .... [Employees] must abide by the policies and procedures and the standards set by the County." ACC's ethics policy provided: "It is the policy of the County to observe all laws and regulations applicable to its business and to conduct business with the highest degree of integrity. To accomplish this, all [employees] must obey the laws and regulations that govern their work and always act in the best interest of the ... County."
Click HERE to access the decision of the Appellate Division posted on the Internet.