Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
IN RE: BRENDA HARWOOD, PETITIONER, v.
MEMORANDUM AND ORDER
SHARON ADDISON, CITY MANAGER, CITY OF WATERTOWN,
RESPONDENT.
Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Onondaga County [Donald A. Greenwood, J.], entered November 12, 2013) to review a determination of respondent. The determination terminated the employment of petitioner.
It is hereby ORDERED that the determination so appealed from is unanimously modified on the law and the petition is granted in part by annulling that part of the determination finding petitioner guilty of misconduct as alleged in charge 2, specification 2, and vacating the penalty of termination imposed, and as modified the determination is confirmed without costs and the matter is remitted to respondent for further proceedings in accordance with the following Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, to annul the determination terminating her employment with the City of Watertown (City). Petitioner was charged with incompetence and misconduct in the performance of her duties as a senior account clerk typist in the City's Parks and Recreation Department (Department). Following a hearing pursuant to Civil Service Law § 75, the Hearing Officer sustained one of the three specifications of incompetence (charge 1, specification 3—failure to deposit cash and checks in a timely manner), and one of the two specifications of misconduct (charge 2, specification 2—willfully misleading the City's retained accountant). The Hearing Officer found that the remaining specifications at issue had “some basis in fact,” but that “mitigating circumstances” precluded a finding of guilt. He further recommended that, instead of disciplining petitioner, the City place her on an employee improvement plan. Respondent adopted the Hearing Officer's determinations of guilt, and sustained an additional specification of incompetence (charge 1, specification 2—failure to bill for services in a timely manner). Respondent terminated petitioner's employment. We agree with petitioner that the determination of guilt on charge 2, specification 2, is not supported by substantial evidence, and we therefore modify the determination accordingly. We further agree with petitioner that, under the circumstances of this case, the penalty of termination is shocking to one's sense of fairness. We therefore further modify the determination accordingly, and we remit the matter to respondent for imposition of an appropriate penalty not to exceed a two-month period of suspension without pay, commencing February 5, 2013, “the maximum penalty supported by the record” (Matter of Johnson v. Town of Arcade, 281 A.D.2d 894, 895).
We further conclude that the penalty of termination is “ ‘so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness' “ (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233; see Johnson, 281 A.D.2d at 895). “[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it 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” (Pell, 34 N.Y.2d at 234; see Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, rearg. denied 96 N.Y.2d 854). “Where, as here, there is no ‘grave moral turpitude’ and no ‘grave injury to the agency involved or to the public weal,’ courts may ‘ameliorate harsh impositions of sanctions by administrative agencies ․ in order to accomplish what a sense of justice would dictate’ “ (Matter of Grady v New York State Off. of Children & Family Servs., 39 AD3d 1157, 1158, quoting Pell, 34 N.Y.2d at 235).
Having annulled the determination of guilt on charge 2, specification 2, we are left with two specifications of incompetence, i.e., failure to bill for services in a timely manner and failure to deposit cash and checks in a timely manner. Respondent acknowledged that petitioner did not misuse or misappropriate any of the funds at issue, and there is no evidence that the City lost revenue or otherwise suffered financial harm as a result of petitioner's delay in processing invoices or preparing funds for deposit. Moreover, the record establishes that there were several factors beyond petitioner's control that contributed to the delays. It is undisputed that petitioner was expected to perform a multitude of non-financial duties that consumed a significant portion of her work day. Petitioner was responsible for scheduling the use of the City's facilities, including its parks, fairgrounds, and numerous athletic fields. Petitioner's scheduling duties were not specifically included in her job description, but took in excess of 50% of her time. Petitioner was also tasked with responding to a large volume of in-person, phone, and email inquiries from the public, duties that likewise were not specifically included in her job description.
Finally, we have reviewed petitioner's remaining contentions and conclude that they are without merit.
Frances E. Cafarell
Clerk of the Court
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Docket No: TP 13–02080
Decided: June 20, 2014
Court: Supreme Court, Appellate Division, Fourth Department, New York.
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)