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Courts have a limited authority in modifying a disciplinary penalty imposed by the appointing authority

Matter of Mary Ellis v Mahon, 2008 NY Slip Op 06737, Decided on September 9, 2008, Court of Appeals

In Ellis v Mahon, 49 AD2d 538, the Appellate Division the annulled the disciplinary penalty imposed on Mary Ellis ? dismissal ? and remanded the matter to the appointing authority ?for the imposition of an appropriate penalty less severe than either termination or suspension of [Ellis?] employment.? Ellis had been found guilty of incompetence.

The Appellate Division found that ?The evidence did not establish, nor does the [appointing authority] suggest, that [Ellis?] conduct was motivated by any malice or selfishness, or that it resulted in any "grave injury to the agency involved or to the public weal."

The Court of Appeals reversed the Appellate Division?s determination, commenting that Ellis, who was employed as an eligibility examiner tasked with processing food stamp applications, consistently processed such applications in particularly late fashion, even after multiple warnings concerning her poor performance. Thus, said the court, ?we cannot conclude that the penalty of termination shocks the judicial conscience,? citing Pell v Board of Education, 34 NY2d 222.

The Court of Appeals then reiterated its view that ?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.? The Court cited Torrance v Stout, 9 NY3d 1022, a case involving the willful and intentional illegal disposition of county property, and Rutkanas v Stout, 8 NY3d 897, a case involving conduct that was found to have jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked, in support of its view in this regard.