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Appellate Division lacked ?discretionary authority? to vacate the disciplinary penalty imposed by the appointing authority

By Harvey Randall, Esq.

Appellate Division lacked ?discretionary authority? to vacate the disciplinary penalty imposed by the appointing authority
Matter of David Torrance v Joseph A. Stout, 2008 NY Slip Op 00180, Decided on January 15, 2008, Court of Appeals

David Torrance was employed a Park Foreman by the Westchester County Department of Parks, Recreation and Conservation. He was found guilty of disciplinary charges alleging he ?engaged in the willful and intentional illegal disposition of County property.? The penalty imposed: demotion to the position of Maintenance Laborer.

Torrance appealed and the Appellate Division ruled that although the determination that the he was guilty of misconduct is supported by substantial evidence, considering all of the circumstances, the penalty of demotion from the position of park foreman to the position of maintenance laborer ?after 21 years of unblemished service, and its long-term financial implications for the petitioner, was so disproportionate to the offense committed as to be shocking to one's sense of fairness.?

The Court of Appeals, citing Matter of Pell v Board of Education, 34 NY2d 222, disagreed, holding that imposing the penalty of demoting Torrance to a non-supervisory position ?does not shock the judicial conscience,? and reversed the Appellate Division?s ruling.

Further, the Court of Appeals said that the Appellate Division ?has no discretionary authority or interest of justice jurisdiction in this CPLR article 78 proceeding to review the penalty imposed ?? citing Rutkunas v Stout, 8 NY3d 897, another case in which another Westchester County Department of Parkes employee challenged the disciplinary penalty imposed by Commissioner Stout.

In Rutkunas, the Appellate Division annulled the Westchester County Department of Parks, Recreation, and Conservation Commissioner?s decision to adopt the recommendation of a hearing officer to terminate Anthony Rutkunas. Rutkunas was found guilty of charges of misconduct but the Appellate Division remanded the matter back to the Commissioner ?and in the exercise of [its] discretion? in order for the Commissioner ?to impose an appropriate penalty less severe than termination? upon Rutkunas. The Appellate Division?s rationale: ?under the circumstances, including, but not limited to, the petitioner's lack of a prior disciplinary history, minimal prospects of alternative employment, and the devastating impact the sanction of termination imposes on his ability to support his family, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness.?

The Court of Appeals reversed the Appellate Division?s action, commenting that Rutkunas? conduct jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked and thus ?we cannot conclude that the penalty of dismissal imposed . . . shocks the judicial conscience as a matter of law.? Further, said the court, the Appellate Division has no discretionary authority or interest of justice jurisdiction in this CPLR article 78 proceeding to review the penalty imposed by the appointing authority.

Full post as published by New York Public Personnel Law on January 16, 2008 (boomark / email).