Opinion
2012-09-18
In the Matter of the Application of Dennis JAMES, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules v. HOOSICK FALLS CENTRAL SCHOOL DISTRICT, the Board of Education of the Hoosick Falls Central School District, and Kenneth A. Facin, in his official capacity as Superintendent of Schools for the Hoosick Falls Central School District, Respondents.
Tabner, Ryan and Keniry, LLP by William F. Ryan Jr., Esq., Albany, Attorneys for Respondents. Gleason, Dunn, Walsh & O'Shea by Ronald G. Dunn, Esq. and Daniel A. Jacobs, Esq., Albany, Attorneys for Petitioner.
Tabner, Ryan and Keniry, LLP by William F. Ryan Jr., Esq., Albany, Attorneys for Respondents. Gleason, Dunn, Walsh & O'Shea by Ronald G. Dunn, Esq. and Daniel A. Jacobs, Esq., Albany, Attorneys for Petitioner.
MICHAEL C. LYNCH, J.
In January 2011, petitioner was terminated from his employment as a custodian with the Hoosick Falls Central School District pursuant to the procedures set forth in Civil Service Law § 75. By Memorandum and Order dated March 29, 2012, the Appellate Division determined that the penalty of termination was “so disproportionate as to be shocking to one's sense of fairness” and “remitted [the matter] to respondents for imposition of a less severe penalty” ( James v. Hoosick Falls Central School District, 93 A.D.3d 1131, 941 N.Y.S.2d 335 [2012] ).
Following the Appellate Division's Order, the respondents directed petitioner to return to work on April 9, 2012. By resolution dated April 19, 2012, the respondent Board of Education of the Hoosick Falls Central School District imposed a penalty of a fourteen month suspension and awarded back pay for a period of one month and twelve days. Now, petitioner commenced this proceeding to challenge the penalty imposed, arguing, inter alia, that the Board did not have the authority to impose a fourteen month suspension.
In relevant part, the Civil Service Law provides that where, as here, a public employer disciplines a civil servant who has earned the procedural protections set forth in the statute, the employee may be suspended for a period of up to thirty days without pay pending a hearing on the charges. Further, if after the hearing, such officer or employee is found guilty of the charges, the penalty or punishment may consist of a reprimand, a fine not to exceed one hundred dollars to be deducted from the salary or wages of such officer or employee, suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal from the service; provided, however, that the time during which an officer or employee is suspended without pay may be considered as part of the penalty.
(Civil Service Law § 75(3) [emphasis added] ).
A public employer may not choose to impose a penalty in excess of those defined in Civil Service Law § 75(3)( Hermance v. Pritchard, 87 A.D.2d 962, 451 N.Y.S.2d 210 [1982];Carlstrom v. Hauser, 54 A.D.2d 705, 387 N.Y.S.2d 447 [1976] ).Under certain circumstances, a reviewing Court, should it determine that the penalty imposed is “disproportionate as to be shocking to one's sense of fairness” ( James, Supra ), may have the authority to impose a penalty that is not enumerated within Civil Service Law § 75(3) (Matter of Mitthauer v. Patterson, 8 N.Y.2d 37, 201 N.Y.S.2d 321, 167 N.E.2d 731 [1973] ).Since Mitthauer, the Court of Appeals has explained that as a general rule, “[a] reviewing court is free to state the maximum penalty the record will sustain, but should leave the exact nature of the penalty to be imposed to the discretion of the agency” ( Rob Tess Restaurant Corp. v. New York State Liquor Authority, 49 N.Y.2d 874, 876, 427 N.Y.S.2d 936, 405 N.E.2d 181 [1980] ).
Here, petitioner alleges that respondents had no authority to impose a fourteen month suspension. Respondents contend that when a case is remitted by the Appellate Division to the public employer for imposition of a new penalty, the two-month suspension limitation defined in Civil Service Law § 75(3) does not apply. In support of their argument, respondents cite a number of cases wherein the appellate divisions have, in fact, imposed penalties that were in excess of or different from those defined within Civil Service Law § 75(3) (see Respondents Mem. of Law p. 14).
In a case that preceded Rob Tess Restaurant, Corp. ( Supra ) and relied on Mitthauer, Supra, the Appellate Division in Lo Bello v. McLaughlin, 39 A.D.2d 404, 334 N.Y.S.2d 692 (1972), held that a local statute that, like 75(3), defined the penalties that could be imposed, did not limit the reviewing court's authority to impose a longer suspension. In Boddie v. County of Westchester, 41 A.D.2d 546, 339 N.Y.S.2d 692 [1973], affd. 33 N.Y.2d 835, 351 N.Y.S.2d 975, 307 N.E.2d 47, the Appellate Division, relying on Mitthauer and Lo Bello, reduced the penalty imposed from termination to suspension to the date of its decision. Further, as to the suspension it imposed, the Court opined that
“[Civil Service Law § 75(3) ]purports to limit the length of suspension of a civil service employee found guilty of charges to a period not exceeding two months. This is no longer valid in the light of the holding of this court in [LoBello, supra,]”
( Boddie, supra, citing Mitthauer, supra ).
Now, relying on the authority of Boddie, Id., Mitthauer, supra, and Lo Bello, supra, respondents contend that when a case is remitted for imposition of a new penalty, Civil Service Law § 75(3) does not restrict the public employer's authority with regard to the penalty it imposes. In this Court's view, however, neither Mitthauer, Lo Bello, nor Boddie resolves this question. In these cases, the issue was whether the reviewing court was authorized to impose a penalty that differed from the applicable law, i.e. Civil Service Law § 75(3) or the local statute. The lesson of Mitthauer is that where a reviewing court concludes that the available penalties do not afford an “acceptable option”, the court has the authority to devise an alternative remedy (see, e.g. Matter of McDougall v. Scoppetta, 76 A.D.3d 338, fn. 3, 905 N.Y.S.2d 262 [2010] ). If a reviewing court does not state otherwise, the public employer's authority remains restricted by the statute ( Lee v. Board of Education, 120 Misc.2d 809, 466 N.Y.S.2d 650 [1983]; see, also Matter of Fuller v. Levitt, 33 Misc.2d 708, 230 N.Y.S.2d 943 [1961] [by remitting without exercising its authority to define an appropriate penalty, “the court must assume that the Appellate Division was cognizant of [Civil Service Law § 75(3) ]”] ).
It is a basic principle of statutory construction that courts should avoid judicial legislation (McKinney's Statutes § 73). Notably, Civil Service Law § 75(3) sets forth in express terms the permissible penalties that may be imposed (compare, e.g. Education Law § 3020–a, which allows the employer to impose a suspension of unlimited duration). In this Court's view, absent a directive from the Appellate Division, the respondents here had no authority to depart from the provisions of Civil Service Law § 75(3) and impose a suspension in excess of two months.
The parties' remaining contentions have been considered and are either without merit or, based on the foregoing, not necessary to resolve.
Accordingly, based on the foregoing, it is
ORDERED AND ADJUDGED that respondents' motion is denied; and it is further
ORDERED AND ADJUDGED that the petition is granted; and it is further
ORDERED AND ADJUDGED that the matter is remanded to respondents for further proceedings not inconsistent with the foregoing Decision and Order.
This represents the Decision and Order/Judgment of this Court. This Original Decision and Order/Judgment is being returned to the attorneys for petitioner. The signing of this Decision and Order/Judgment shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding filing, entry, or notice of entry.