Courts, when determining if a penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness, must consider all the relevant circumstances

Courts, when determining if a penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness, must consider all the relevant circumstances

2016 NY Slip Op 08412, Appellate Division, Third Department

A police officer [Petitioner] was observed on a surveillance video pumping gasoline from his employer’s fueling system into his personal vehicle. Following an investigation by the State Police conducted an investigation. The investigation revealed that Petitioner has  access his employer’s fueling system and told the State Police investigator that he filled his personal vehicle and then made a sworn written statement describing, among other things, his accessing his employer’s fueling system to obtain gasoline.

Petitioner was charged with violating his employer’s rules of conduct by “wrongfully taking gasoline … and by making a false statement under oath. 

Following the disciplinary hearing, the Hearing Officer found:

1. The evidence did not substantiate the charges that Petitioner wrongfully took gasoline from his employer;  

2. The evidence did support a finding that he made a false statement under oath to the State Police.

As to the penalty to be imposed, the hearing officer recommended the termination of Petitioner’s employment. The appointing authority adopted the Hearing Officer's findings of fact in their entirety and the hearing officer's recommendation as to the penalty to be imposed and terminated Petitioner.

Petitioner commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order annulling the appointing authority’s and the matter was transferred to the Appellate Division.

One of the major issues raised by Petitioner concerned his contention that the penalty imposed, termination, was excessive. The Appellate Division observed that in evaluating whether the penalty is excessive, a Court "must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness." In so doing, said the court, "[t]his calculus involves consideration of whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

The Appellate Division said that it was mindful of "the high standard of character to which police officers are held" and the “substantiated charges of providing a false statement under oath should not go unpunished.”

Noting that all six charges pertaining to the false statement given to the State Police were sustained by the Hearing Officer, Petitioner was subject to the penalty or punishment provided in Civil Service Law §75(3), including "a reprimand, a fine not to exceed one hundred dollars . . ., suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal." 

Here, said the court, without further expansion on the Hearing Officer's findings and recommendations, the appointing authority adopted the harshest penalty, dismissal.

The Appellate Division then noted that it had sustained:

1. A two-month suspension where a police officer admitted to falsely reporting an incident;

2. A two-month suspension, letter of reprimand and $100 fine when a police officer was found guilty of improperly completing an offense report, refusing to comply with an order and refusing to report to a superior officer; and

3. A 30-day suspension and six months of probation for a State Trooper charged with misconduct for advising a friend to revoke her consent to the search of her residence by other troopers who were conducting a marihuana investigation.

As Petitioner’s personnel record does not indicate any other disciplinary actions or warnings and considering he had served as a police officer for 14 years and that the charges that he wrongfully took his employer's gasoline for his personal use were not sustained and there was no financial loss to the employer, the Appellate Division said that based on the totality of the circumstances, that the penalty imposed is so disproportionate to the offense as to shock its sense of fairness.

Accordingly, the Appellate Division remitted the matter to appointing authority for a redetermination of the disciplinary penalty to be imposed. 

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Refusing to accept the resignation submitted by an employee

Refusing to accept the resignation submitted by an employee

Decisions of the Commissioner of Education, Decision No. 17,007

In this appeal to the Commissioner of Education, the petitioner [Petitioner] challenged a school district’s rejection of his resignation from his probationary appointment and its subsequent terminating him from his position instead. He asked the Commissioner to direct the district to either [1] rescind his appointment as a probationary employee or, in the alternative, [2] to accept Petitioner’s previously tendered letter of resignation.

The Commissioner said that as a general rule, "... a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.”

Addressing the merits of Petitioner’s appeal the Commissioner said that “In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.”

Here, said the Commissioner, Petitioner failed to allege that his termination from his probationary appointment was for an unconstitutional reason or in violation of any statute. Accordingly, the Commissioner ruled that Petitioner “failed to meet his burden” and dismissed his appeal. Thus, in this instance, the school district’s records would record Petitioner’s separation from employment as a “probationary termination” rather than a “resignation” from his position. 

Technically, in this instance the school district elected to ignore Petitioner's resignation rather than refuse it as an appointing authority may not “refuse to accept” a resignation tendered by an officer or an employee and the resignation becomes operative upon its delivery to the appointing authority. Indeed, the officer or employee usually may not withdraw or rescind his or her resignation once it has been delivered to the appointing authority without the approval of the appointing authority. 

Although an appointing authority may acknowledge the "receipt" of a resignation received from an officer or an employee or report that an individual's resignation has been accepted, all that is required for a resignation to become operative is its delivery to the appointing authority. In other words, the approval or acceptance of the resignation is not required for the resignation to take effect  unless specific acceptance of a resignation is required by law, rule, regulation or the terms of a collective bargaining agreement (see Hazelton v Connelly, 25 NYS2d 74).

As an example of a situation where the acceptance of a resignation is mandated by statute, §2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

In contrast to "refusing to accept a resignation," an appointing authority may elect to disregard the resignation submitted by the individual under certain circumstances.

For example, 4 NYCRR 5.3(b), which applies to employees of the State as the employer  provides that in the event “… charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation."

Another example: §1133.1 of the State Education Law provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made."

Presumably an appointing authority could elect to disregard an employee's “retirement” from his or her position under similar circumstances [See Mari v.Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61].

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Teacher fined $10,000 after subjecting student to corporal punishment

Teacher fined $10,000 after subjecting student to corporal punishment

2016 NY Slip Op 08301, Appellate Division, First Department

The Appellate Division dismissed a petition to vacate an Education §3020-a disciplinary arbitration award finding that a special education teacher [Educator] inflicted corporal punishment on a special education student. The court then sustained the penalty imposed: a $10,000 fine, indicating that the penalty “does not shock our sense of fairness.”

The court found that the hearing officer’s determination:

1. Did not violate the Educator's due process rights as she was provided with notice, an appropriate hearing, and the opportunity to present evidence and cross-examine witnesses; and

2. Was supported by adequate evidence, was rational, and was not arbitrary and capricious.

As to the penalty imposed on  Educator, §3020-a(4)(a) of the Education Law, which applies to members of the teaching and supervisory staff of a school district, a board of cooperative educational services or a county vocational education and extension board, regardless of title, as described in subdivision (d) of §35 of the Civil Service Law, provides, in pertinent part, that “[i]n those cases where a penalty is imposed, such penalty may be a written reprimand, a fine, suspension for a fixed time without pay, or dismissal"

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