Opinion
October 19, 1992
Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the petitioner is awarded full back pay and benefits for the period November 6, 1987, to October 13, 1989, the determination is otherwise confirmed, the proceeding is otherwise dismissed, and the matter is remitted to the respondent for the calculation of the petitioner's back pay and benefits.
The petitioner Charles Reed was employed in a Civil Service position as Sign Inspector by the respondent Town of Huntington. In 1987, the Town commenced a disciplinary proceeding against Reed pursuant to Civil Service Law § 75, claiming that he was guilty of misconduct and incompetence. After a hearing, the Town's Supervisor found that Reed was guilty of misconduct and incompetence and dismissed him from his position.
Reed then commenced a first proceeding pursuant to CPLR article 78. This first proceeding resulted in a decision reinstating Reed with full salary as of November 6, 1987, because there had been a procedural defect in having the Town Supervisor review the hearing evidence pursuant to Civil Service Law § 75. A de novo review of the hearing evidence was then conducted by the Town's Personnel Officer. On October 13, 1989, this official issued a final determination again dismissing Reed. This time Reed was dismissed retroactively to the date of his first dismissal — November 6, 1987. Reed then commenced the instant proceeding.
We find that there was substantial evidence in the record to support the determination of the Town's Personnel Officer dismissing Reed. In addition, we reject Reed's contention that the penalty of dismissal was excessive. A penalty is excessive only if it is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness (see, Matter of Pell v Board of Educ., 34 N.Y.2d 222). Furthermore, we also reject Reed's contention that the Personnel Officer was an inappropriate official to conduct the de novo review. There is no indication in the record that the Personnel Officer preferred the charges against Reed, instituted the investigation, or was biased (cf., Matter of Edgar v Dowling, 96 A.D.2d 510; Matter of Devany v Rice, 84 A.D.2d 565; Matter of O'Reilly v Pisani, 79 A.D.2d 973; Matter of Cafaro v Pedersen, 123 A.D.2d 860; Matter of McLaughlin v North Bellmore Union Free School Dist., 73 A.D.2d 935; Matter of Young v Board of Educ., 100 A.D.2d 515).
However, it was error for the Personnel Officer to dismiss Reed retroactively to the date of his first dismissal (see, Civil Service Law §§ 77, 75; Matter of Sterling v Levitt, 168 A.D.2d 314; Sinicropi v Bennett, 92 A.D.2d 309, affd 60 N.Y.2d 918; Matter of O'Reilly v City of White Plains, 92 A.D.2d 920; Matter of Tanner v County of Nassau, 88 A.D.2d 661). We reject as meritless the Town's contention that Reed should be estopped from claiming any right to back pay and benefits, or that he waived his right to them. Thompson, J.P., Rosenblatt, Lawrence and Ritter, JJ., concur.