In accordance with Civil Service Law §75, the Appointing Authority [Respondent] notified an employee [Petitioner] that he was charged with two specifications of misconduct.
Specification 1 alleged that, during a period of time when Petitioner was on duty, "[Petitioner] failed to devote all of [his] time and attention to the performance of [his] duties in violation of [certain provisions set out in the Respondent's] Employees' Manual...."
Specification 2 alleged that during that same time period, "[Petitioner] failed to model appropriate conduct, ethics, and performance ... in violation of [certain provisions set out in the Respondent's] Employees' Manual ...."
Petitioner denied the allegations and a Civil Service Law §75(2) disciplinary hearing was conducted. At the conclusion of the hearing the Hearing Officer issued a determination finding Petitioner guilty of both Specifications and recommended that Petitioner be dismissed from service. Respondent adopted the Hearing Officer's findings and recommendation as to the penalty to be imposed and dismissed Petitioner from service.
Petitioner then commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order annulling the Respondent's determination on the grounds that [1] the record lacked substantial evidence to support the findings that he engaged in misconduct and [2] that the penalty of termination was disproportionate to the offenses alleged. Supreme Court transferred the matter to the Appellate Division.
Addressing the penalty imposed on Petitioner, the Appellate Division, noted that the Petitioner's record established that Petitioner consistently received "strong evaluations for his work performance" and that Petitioner had "expressed remorse and that he was not proud of his conduct." Citing Matter of Gulotta v New York State Thruway Auth., 174 AD3d 1205, the majority of the court, Lynch, J. dissenting, opined that the penalty of termination "is so disproportionate to the offense and shockingly unfair as to constitute an abuse of discretion as a matter of law" under the circumstances.*
The Appellate Division, "annulling so much [of the Respondent's decision] as imposed a penalty of termination," remitted the matter to the Respondent for the Respondent "to consider imposing a less severe penalty" on Petitioner.
Click HERE to access the Appellate Division's
decision posted on the Internet.
* A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an officer or employee in the public service in instances where the individual has been found guilty of misconduct or incompetence. Click HERE for more information.