| Matter of Ellis v Mahon |
| 2008 NY Slip Op 01950 [49 AD3d 538] |
| March 4, 2008 |
| Appellate Division, Second Department |
| In the Matter of Mary Ellis, Petitioner, v Kevin P. Mahonet al., Respondents. |
—[*1] Charlene M. Indelicato, White Plains, N.Y. (Stacey Dolgin-Kmetz and Thomas G. Gardinerof counsel), for respondents.
Proceeding pursuant to CPLR article 78 to review a determination of the respondentCommissioner of the Westchester County Department of Social Services, dated March 23, 2006,which adopted the findings of fact and recommendation of a hearing officer, dated March 16,2006, made after a hearing, finding the petitioner guilty of certain enumerated acts ofincompetence, and terminating her employment as an eligibility examiner.
Adjudged that the petition is granted, on the law and in the exercise of discretion, withoutcosts or disbursements, to the extent that so much of the determination as imposed a penaltyterminating the petitioner's employment is annulled and the petitioner is reinstated to the positionof eligibility examiner II with back pay and benefits, the petition is otherwise denied, thedetermination is otherwise confirmed, and the matter is remitted to the respondents for theimposition of an appropriate penalty less severe than either termination or suspension of thepetitioner's employment.
Although the petition raised a substantial evidence question, the petitioner does not disputeon appeal that there was substantial evidence to support the specifications sustained against her.Instead, she contends that the determination was arbitrary and capricious as the disciplinarycharges against her were allegedly the product of selective enforcement. However, the fact thatother eligibility examiners in the petitioner's work unit were not disciplined for failing tocomplete [*2]applications on time does not constitute a prioradministrative policy to which the Westchester County Department of Social Services(hereinafter DSS) is bound (cf. Matter ofLantry v State of New York, 6 NY3d 49, 58 [2005]; Matter of Charles A. FieldDelivery Serv. [Roberts], 66 NY2d 516, 516-517 [1985]; Matter of Girard v City ofGlens Falls, 173 AD2d 113, 117 [1991]).
The petitioner contends that the hearing officer was biased by a financial incentive becausehe was an ad hoc officer appointed by the County. However, there was no evidence in the recordthat the hearing officer was biased (seeMatter of Compasso v Sheriff of Sullivan County, 29 AD3d 1064, 1064-1065 [2006];Matter of Schindlar v Incorporated Vil. of Lloyd Harbor, 261 AD2d 626 [1999]).
Nevertheless, even though the charges were properly sustained, the petitioner should nothave been terminated from her employment. The evidence did not establish, nor does therespondent suggest, that the petitioner's conduct was motivated by any malice or selfishness, orthat it resulted in any "grave injury to the agency involved or to the public weal" (Matter ofKelly v Safir, 96 NY2d 32, 39 [2001]; see Matter of Goudy v Schaffer, 24 AD3d 764 [2005]; Matter of Muraik v Landi, 19 AD3d697 [2005]). Furthermore, in view of the petitioner's 18 years of service for DSS, theabsence of any other disciplinary proceedings against her, as well as other mitigatingcircumstances, the penalty of termination or even suspension of employment, given the financialimplications, is so disproportionate to the offense committed as to be shocking to one's sense offairness (see Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns ofScarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 233-235 [1974]; Matter of Goudy v Schaffer, 24 AD3d764, 765 [2005]). Accordingly, we grant the petition to the extent indicated, and remit thematter to the respondents for the imposition of a penalty less severe than either termination orsuspension of the petitioner's employment. Skelos, J.P., Lifson, Santucci and Covello, JJ.,concur.