Summary
In Waldren, the Court of Appeals held that, in the context of a 30-year career that was otherwise unblemished, an employee's use of his office computer to view internet pornography was sufficient to warrant termination.
Summary of this case from Capone v. Uni. FreeOpinion
No. 200 SSM 30.
Decided December 20, 2005.
APPEAL, by permission of the Court of Appeals, from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department, entered May 9, 2005, in a proceeding pursuant to CPLR article 78 to review a determination of respondent Town, which had adopted the findings and recommendation of a hearing officer, made after a hearing, finding the petitioner guilty of misconduct, and terminated his employment. The Appellate Division (1) granted the petition to the extent of annulling so much of respondent's determination as imposed a penalty, (2) remitted the matter to respondent to impose an appropriate penalty less severe than termination, (3) otherwise denied the petition, (4) otherwise dismissed the proceeding, and (5) otherwise confirmed the determination.
Petitioner Director of Public Safety for respondent Town was charged with accessing inappropriate material on an office computer. The hearing officer upheld the charges based on evidence that he accessed pornography on the Internet through his office computer on several dates over a 17-month period and imposed a penalty of termination.
The Appellate Division majority concluded that the penalty of termination was so disproportionate to the offense as to be shocking to one's sense of fairness.
Matter of Waldren v. Town of Islip, 18 AD3d 566, reversed.
Bond, Schoeneck King, PLLC, Garden City ( Ernest R. Stolzer of counsel), for appellant.
Rosenthal Curry Kranz, LLP, East Meadow ( Allen M. Kranz of counsel), for respondent.
Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH concur.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be reversed, with costs, to the extent that it annulled so much of the Town's determination as imposed a penalty and remitted for imposition of a less severe penalty, and the petition dismissed.
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 ( Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale Mamaroneck, Westchester County, 34 NY2d 222, 237). Under the circumstances of this case, it cannot be concluded that the penalty of termination imposed by the Commissioner shocks the judicial conscience. Petitioner's remaining contentions lack merit.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order, insofar as appealed from, reversed, with costs, and petition dismissed, in a memorandum.