Citing Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, the Appellate Division said "A court may set aside an administrative penalty only if "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"."
In determining if the penalty imposed is "shocking to one's sense of fairness", the Appellate Division said that a sanction imposed that is "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 derelictions of the individual", is deemed "shocking to one's sense of fairness".
In this proceeding pursuant to CPLR Article 78 to review the employer's [Town] adoption of the hearing officer's findings that the employee [Plaintiff] was "guilty of misconduct and insubordination" and the hearing officer's recommendation that the Plaintiff be terminated, Supreme Court granted the Plaintiff's petition seeking to annul the penalty, and remitted the matter to the Town for the Town's imposition of a less severe penalty. The Town appealed the Supreme Court's ruling.
The Appellate Division, noting that the Plaintiff had been employed by the Town for approximately five years in a variety of positions, had filed disciplinary charges against the Plaintiff alleging misconduct and insubordination related to Plaintiff's alleged "absences from work without leave".
In the words of the Appellate Division, "... contrary to the [Town's] contention, under the circumstances of this case,* the imposed penalty of termination is so disproportionate to the offense as to be shocking to one's sense of fairness".
Accordingly, Appellate Division held that "the Supreme Court properly granted the [Plaintiff's] petition, annulled the penalty, and remitted the matter to [the Town] for the imposition of a less severe penalty."
Click HERE to access the decision of the Appellate Division posted on the Internet.
* A Reasonable Disciplinary Penalty Under the Circumstances - NYPPL's 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. For more information click on http://booklocker.com/books/7401.html