Disciplinary penalty of termination imposed on an employee following a disciplinary action held shocking to one's sense of fairness

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

Selected items posted on Internet blogs during the week ending July 4, 2025

Thomson Reuters recently released its Future of Professionals Report 2025. This item has been reviewed by Rochester, New York attorney Nicole Black in her article posted on the Internet. Click here to Read the whole entry 

New York Sets Cybersecurity Requirements for Local Agencies A new law covers online ransom attempts, cybersecurity training and other areas. The move comes as the Empire State works to increase its power in artificial intelligence and other digital areas. READ MORE

To Drive Cyber Awareness, Show the Impact of an Incident Information and security officers from Oregon educational institutions shared insight on making people within their organizations more cognizant of cybersecurity and developing appropriate cyber defense strategies. READ MORE

Hacktivism, Stacktivism and the Future of Tech Backlash In our new world of generative AI, autonomous vehicles and more, everything does not always work out as planned. READ MORE

CyberPatriot Events Reflect Growing Interest in IT Careers Organizers for CyberPatriot camps like those hosted by Calhoun Community College say they've seen a trend of rising interest among middle and high schoolers in cybersecurity and IT-related fields. READ MORE

Future-Proofing Government Workspaces: Enhancing Productivity, Security and Adaptability This thought leadership paper explores how to balance flexibility, security, and employee experience in a way that aligns with agency missions and workforce realities. DOWNLOAD

Improve Your Password – Infographic Use this infographic to help employees improve their passwords. Download now

This Arizona Program Is Attracting New Election Workers Arizona has seen more turnover in its election offices than most states. A fellowship program showed a path for attracting young workers to these jobs. READ MORE

Rethinking the Government Workplace Agencies can use a combination of emerging technologies, data-informed design and cross-functional collaboration to transform traditional office space. This paper explains multiple factors government leaders should consider in return-to-office strategies. DOWNLOAD

AI in State and Local Government: Everything You Need to Know Artificial intelligence (AI) often dominates technology discussions. But with so many implementation and policy considerations around the technology, many government leaders can feel overwhelmed at the idea of getting started with AI. This go-to guide shares everything you need to know to quickly begin implementing AI and developing the appropriate policy for the technology. DOWNLOAD 

Defendants' subpoenas served on former school district employees in order to depose them quashed

Supreme Court granted the cross-motions of the City of New York and the New York City Department of Education [City] to quash subpoenas issued by the New York City School Construction Authority and Admiral Construction LLC [Defendants] in an effort to depose two former employees of City subpoenaed by Defendants for deposition.*

Defendants appealed the Supreme Court's action but the Appellate Division unanimously affirmed the Supreme Court's decision, without costs, observing that Supreme Court had "providently exercised its discretion" in granting City's cross-motion to quash the subpoenas. 

City, opined the Court, had demonstrated the futility of uncovering anything legitimate via depositions of the subpoenaed former school principals as to the "individual plaintiff's claims of an injurious trip and fall on the scaffold in a fenced-off, locked area that was restricted to construction workers".  

In addition, the Appellate Division noted that "[there] was no evidence the former principals had personal knowledge of the circumstances of the individual plaintiff's fall or of the alleged tripping hazards on the scaffold". In the words of the Appellate Division: "Defendants failed to demonstrate that the deposition testimony of the principals was material and necessary to assist in addressing the premises liability issues".

* The Appellate Division noted that Defendants' subpoenas to compel the deposition testimony of two former New York City Department of Education employees were properly served as Defendants' subpoenas were addressed to them individually, as nonparties, and afforded them proper notice of the claims at issue.

Click HERE to access the Appellate Division's decision posted on the Internet.

Disqualification for appointment to the position of police officer based on the result of a psychological evaluation challenged by the candidate for the appointment

The jurisdiction's personnel agency [Respondent] found a candidate [Plaintiff] for appointment to the position of police officer was not qualified for appointment to the position based on the result of a psychological evaluation. In the course of the application review process, Plaintiff disclosed that he had, once, patronized a prostitute. The Plaintiff also disclosed that event during an interview with an investigator.

Petitioner then underwent a psychological evaluation. The evaluator concluded that there was no evidence of any psychological impairment, but that Plaintiff was not recommended for employment as a police officer with the jurisdiction. 

Respondent ultimately found that the Plaintiff was not qualified for appointment to the position of police officer and Plaintiff administratively appealed that decision. In the course of the administrative appeal, Plaintiff submitted the results of two independent psychological evaluations and numerous letters of support. He also appeared for psychological evaluation appeal interview before a panel provided by the Respondent. 

After reviewing the materials from the initial evaluation, the panel indicated it doubted whether there was sufficient evidence to support Plaintiff's disqualification but said it found no significant basis to overturn the original disqualification. The panel's report emphasized Plaintiff's failure to admit to the prostitution incident until asked a direct question during the appeal interview.

Plaintiff commenced the instant Supreme Court CPLR Article 78 proceeding seeking review the Respondent's determination. Respondent moved to dismiss Plaintiff's petition. The Supreme Court denied the Respondent's motion and transferred the proceeding to Appellate Division, finding that Plaintiff's petition raised a substantial evidence issue.

The Appellate Division, noting that Supreme Court erred in transferring the proceeding to it as the challenged determination was not made after a quasi-judicial hearing and did not raise a substantial evidence issue, said that as it had the full record before it would decide the matter on the merits in the interest of judicial economy. 

The Appellate Division granted Plaintiff's petition, with costs, annulled the Respondent's decision, reinstated Petitioner as a candidate for appointment to the position of police officer with the jurisdiction, and noted that Respondent could have the Plaintiff submit to a new psychological evaluation.

Local government and school audits posted on the Internet

On June 30, 2025 New York State Comptroller Thomas P. DiNapoli  announced the following local government and school audits have been posted on the Internet. 

Click on the text highlighted in color to access these audits

Livonia Central School District – Conflict of Interest (Livingston County)

A board member, who resigned on May 31, 2022, had prohibited interests in district contracts pursuant to New York State General Municipal Law. The board member’s physical therapy company entered into six contracts with the district while he was a board member that resulted in payments totaling $724,869 from Aug. 5, 2017 through Dec. 19, 2022. In addition, the former superintendent’s outside employment created an appearance of impropriety. The former superintendent resigned on July 15, 2022. The former superintendent informed district administrators and staff of products and services provided by vendors that were recruited by, and partnered with, a company he partially owned. District officials contracted with 18 of these vendors, for a total cost of $656,579, of which $146,825 related to unnecessary or unused services. The district lacked a formal procedure for identifying and reporting potential conflicts of interest until June 2021. As a result, district officials were not familiar with requirements of New York State General Municipal Law as they relate to conflicts of interest. District officials did not fully understand the steps necessary to disclose a conflict and what constituted a prohibited conflict of interest. Had such procedures been in place, the conflicts of interest may have been avoided.

Churchville-Chili Central School District – Procurement (Monroe County)

District officials did not ensure goods and services related to capital improvement projects’ (CIP) contracts were competitively procured in accordance with the district’s procurement policies or the law. As a result, officials cannot assure taxpayers the 12 CIP contracts entered – valued at approximately $36.6 million – were procured in the most prudent and economical manner and without favoritism. Specifically, officials responsible for purchasing did not advertise in the district’s official newspaper, as required by law, for nine CIP contracts totaling $32.6 million. Officials also did not demonstrate that prior to awarding three contracts, totaling approximately $4 million, through a group purchasing agency, they had reviewed the contracts to ensure the district was permitted to award the contracts pursuant to the “piggybacking” exception set forth in the law. Officials also did not competitively bid for moving and storage services totaling $35,535.

Moravia Central School District – Lead Testing and Reporting (Cayuga County)

District officials did not properly identify, report or implement needed remediation to reduce lead exposure in all potable water outlets as required by state law and Department of Health regulations. Auditors determined 98 of the 303 (32%) water outlets were not sampled or properly exempted by district officials during Cycle Two. This occurred because district officials did not have a sampling plan to identify all water outlets for sampling or exemption. District officials also did not have a remedial action plan that detailed which water outlets they exempted from sampling and how they would be secured against use, and what remedial actions were planned or enacted. Because there is no information on the lead levels of the 98 water outlets not sampled for testing, auditors were unable to determine whether officials identified and remediated all water outlets that would have required it.

North Amityville Fire Company, Inc. – Audit Follow-Up (Suffolk County)

The purpose of the review was to assess the North Amityville Fire Company’s progress, as of June 2024, in implementing our recommendations in an audit report released in April 2023. The audit determined that the board did not ensure that all cash disbursements were for appropriate company purposes or supported. The audit included 10 recommendations to help officials ensure cash disbursements are appropriate and supported. It appears that company officials have made significant progress in ensuring cash disbursements are supported and for company business activities. However, company officials can take further actions to strengthen the controls over the company’s disbursements processes. Of the 10 audit recommendations, four recommendations were fully implemented, and six recommendations were not implemented.

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