        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

733
TP 13-02080
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, VALENTINO, AND DEJOSEPH, JJ.


IN THE MATTER OF BRENDA HARWOOD, PETITIONER,

                    V                              MEMORANDUM AND ORDER

SHARON ADDISON, CITY MANAGER, CITY OF WATERTOWN,
RESPONDENT.


STEVEN CRAIN AND DAREN RYLEWITZ, CIVIL SERVICE EMPLOYEES ASSOCIATION,
INC., SYRACUSE (D. JEFFREY GOSCH OF COUNSEL), FOR PETITIONER.

SLYE & BURROWS, WATERTOWN (ROBERT J. SLYE OF COUNSEL), FOR 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
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                                                         TP 13-02080

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 AD2d 894, 895).

     Both the Hearing Officer and respondent found petitioner guilty
of charge 2, specification 2 on the ground that she willfully misled
the retained City accountant concerning the status of certain uncashed
checks. The notice of charges and specifications, however, alleges
that petitioner “purposely misled the City Comptroller’s office,”
i.e., that petitioner was “specifically asked on May 13, 2011, by
[the] Accounting Supervisor of the City Comptroller’s office, whether
you were then in possession of any . . . uncashed checks,” that
petitioner responded that she was not, and that petitioner “later
acknowledged that there was such a check written by a member of the
City of Watertown Council, and [she] later gave that individual’s
uncashed check to the City Comptroller’s office” (emphasis added).
That allegation is contradicted by respondent’s own proof (see
generally Matter of Krossber v Jackson, 263 AD2d 960, 961, lv
denied 94 NY2d 756). The retained City accountant testified that, on
May 13, 2011, she asked the accounting supervisor in the Comptroller’s
Office to call petitioner and ask her if she had returned the check in
question. According to the accountant, petitioner replied that “she
had not and she still had . . . the check.” We thus conclude that the
determination insofar as it found petitioner guilty of misconduct as
alleged in charge 2, specification 2, is not supported by substantial
evidence (see generally Matter of Jordan v Daly, 302 AD2d 862, 862).

     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 NY2d 222, 233; see
Johnson, 281 AD2d 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 NY2d at 234; see Matter of Kelly v Safir,
96 NY2d 32, 38, rearg denied 96 NY2d 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
NY2d at 235).
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                                                         TP 13-02080

     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.

     Notably, respondent acknowledges that there were no City or
Departmental rules, regulations, or written policies with respect to
the timing of invoices or deposits, and petitioner’s direct supervisor
testified that he never directed petitioner to send out invoices or
prepare funds for deposit within a particular period of time. Indeed,
the supervisor testified that he established petitioner’s priorities,
that invoicing was not a priority in the Department, and that
petitioner completed her tasks in accordance with his priorities. As
petitioner testified, the supervisor “gave [her] the duties that he
wanted done for the day, and if invoices was one of them, then [she]
would complete that. But if invoices was not one of them, [she]
completed whatever he gave [her] for duties for the day.” Although
respondent emphasizes that there was a six-month period during which
petitioner failed to prepare any invoices, the record reflects that
petitioner was ill and intermittently absent from work during several
of those months, that no one performed petitioner’s duties during her
absence, and that several of petitioner’s completed invoices were
inadvertently deleted by the City’s informational technology
department.

     In our view, the penalty of termination is particularly unfair in
light of petitioner’s long service to the City and her previously
unblemished work record. Prior to the charges at issue, petitioner
had worked for the City for 29 years and had never been disciplined,
threatened with discipline, or counseled with respect to her job
performance (see Matter of Rice v Hilton Cent. Sch. Dist. Bd. of
Educ., 245 AD2d 1104, 1105). Petitioner’s direct supervisor, who
supervised her for most of her tenure with the City, testified that
petitioner was a hard worker and that she did her best to complete all
of her assigned duties. According to the supervisor, petitioner
stayed late without compensation “a couple of times a week at least,”
and her lunch break was interrupted or shortened on a daily basis due
to the demands of the job. Thus, as noted herein, we conclude that
“the maximum penalty supported by the record” is a two-month period of
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                                                         TP 13-02080

suspension without pay (Johnson, 281 AD2d at 894).

     Finally, we have reviewed petitioner’s remaining contentions and
conclude that they are without merit.




Entered:   June 20, 2014                        Frances E. Cafarell
                                                Clerk of the Court
