Public Employee Successfully Wins Article 78 Proceeding And Gets His Job Back

Sullivan v. County of Rockland, ___A.D.3d___(3d Dept. May 3, 2015), is an interesting case.  An employee was terminated for making a false entry into the employer's computer system. While the finding of guilt was upheld, the court found that termination was too harsh of a penalty. As the court explained:

An administrative penalty must be upheld unless 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 (see Matter of Waldren v Town of Islip, 6 NY3d 735, 736; Matter of Kreisler v New York City Tr. Auth., 2 NY3d 775, 776; Matter of Harp v New York City Police Dept., 96 NY2d 892, 894; Matter of Sassi v City of Beacon, 145 AD3d 789). A result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subject to it that it is disproportionate to the misconduct, incompetence, failure, or turpitude of the individual, or the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals (see Kelly v Safir, 96 NY2d 32, 38; Matter of Tomczak v Board of Educ., Eastchester Union Free Sch. Dist., 144 AD3d 1165, 1166; Matter of Smith v Tuckahoe Hous. Auth., 111 AD3d 642, 643).
Here, the penalty imposed is so grave in its impact on the petitioner that it is disproportionate to the misconduct, or the risk of harm to DSS or the public. Under the circumstances of this case, the penalty of termination of employment for a single incident is so disproportionate to the offense as to be shocking to one's sense of fairness, and constitutes an abuse of discretion as a matter of law (see Matter of Diefenthaler v Klein, 27 AD3d 347, 348; Matter of Murray v Ilion Water Commn., 9 AD3d 903, 904; Matter of Lewandowski v Port Auth. of N.Y. & N.J., 229 AD2d 360, 361; Matter of Allman v Koehler, 161 AD2d 114, 115). The petitioner's actions were not so egregious or of such moral turpitude as to justify termination of his employment in light of his previously unblemished record (cf. Matter of Douglas v New York City Bd./Dept. of Educ., 87 AD3d 856, 857; Matter of Brais v Board of Educ. of Massena Cent. School Dist., 92 AD2d 706, 707).