City Council of Watertown v. Carbone

• Decision Date: 10 December 1976
• Citation: 54 A.D.2d 461,389 N.Y.S.2d 678
• Parties: Application of the CITY COUNCIL OF WATERTOWN et al., Appellants, v. Donald P. CARBONE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 678

389 N.Y.S.2d 678

54 A.D.2d 461

Application of the CITY COUNCIL OF WATERTOWN et al., Appellants, v. Donald P. CARBONE et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Dec. 10, 1976.

Kenneth W. Brett, Corp. Counsel, Watertown, for appellants.

Giles, Maloney, Marsh, Clary & Swartz, Watertown, for respondent Wiley (Richard Hunt, Watertown, of counsel).

Conboy, McKay, Bachman & Kendall, Watertown, for respondents Carbone, et al. (Carl O. Bachman, Watertown, of counsel).

Before CARDAMONE, J.P., and SIMONS, MAHONEY, DILLON and WITMER, JJ.

CARDAMONE, Justice Presiding.

On December 17, 1975 respondent, Frederick D. Wiley, then a Captain in the Fire Department of the City of Watertown was involved in an incident during his off-duty hours which resulted in disciplinary charges being lodged against him. Following a hearing held before appellant Forbes, City Manager of Watertown, he was found guilty of the charges and given a thirty-day suspension without pay and permanent demotion to the rank of Fire Fighter effective February 15, 1976. Respondent Wiley, who holds a permanent competitive Civil Service appointment, appealed that determination to respondent, Watertown Municipal Civil Service Commission (Commission), which unanimously modified the penalty to a thirty-day suspension without pay and reduction in rank to Fire Fighter until April 16, 1976, which amounted to a 60-day demotion in rank and pay, after which the Commission directed that he be reinstated as Fire Captain.

Appellants, Chief of the Fire Department, City Council and City Manager of Watertown, thereafter instituted the instant Article 78 proceeding claiming that there was no reasonable basis for the Commission's modification of the penalty. They are before us on an appeal from Special Term's determination that the Commission did not act arbitrarily in modifying Wiley's penalty.

The facts involved in the incident, briefly stated, arose when a woman who had been riding in Wiley's car on the Cape Vincent-Watertown Road asked to be let out because she was angry. She began to walk and then decided to rest in a snowbank. At that point a New York State Trooper dressed in civilian clothes and driving his personal car came along, stopped and asked her if she needed a ride. As he was helping her into his car, respondent Wiley returned. An altercation occurred during which three of the Trooper's shirt buttons were ripped off. When he announced that he was a New York State Trooper, Wiley responded '(i)f you are a Trooper, so am I'. Wiley was subsequently satisfied as to the Trooper's identity. After the Trooper drove the woman home, with Wiley following in his car, the Trooper told Wiley to follow him. Upon inquiring whether he was under arrest and being advised that he was 'not at this time', Wiley refused to follow. The Trooper went to the station, typed up the papers, went to Wiley's home and arrested him for criminal impersonation and harassment.

Civil Service Law § 75 generally provides for the imposition of disciplinary penalties upon persons such as respondent Wiley who hold positions by permanent appointment in the competitive class of the classified civil service for incompetency or misconduct shown after a hearing upon stated charges. Section 76(1) of the Civil Service Law provides that any officer or employee who believes himself aggrieved by a penalty or punishment lodged against him pursuant to section 75 of the Civil Service Law has a right to appeal from such determination Either by an application to the state or municipal civil service commission having jurisdiction Or to the court in accordance with Article 78 of the CPLR. If the former is followed, subdivision 3 of section 76 of the Civil Service Law sets forth the authority of the reviewing commission on such an appeal. It provides that '(t)he determination appealed from may be affirmed, reversed, or modified, and the state or municipal commission having jurisdiction may, in its discretion, direct the reinstatement of the appella . . .'. The subdivision further provides that: '(t)he decision of such civil service commission shall be final and conclusive, and not subject to further review in any court.'

Despite this seemingly definitive language, New York courts have held that an Article 78 proceeding to review the Civil Service Commission's determination of the appeal will lie upon the allegation that the Commission's decision was 'purely arbitrary' (Matter of Taylor v. N.Y.C. Transit Auth., 25 A.D.2d 682, 269 N.Y.S.2d 75, affd. 19 N.Y.2d 724, 279 N.Y.S.2d 181, 225 N.E.2d 886; Matter of Hibbert v. N.Y.C. Transit Auth., 28 A.D.2d 1139, 284 N.Y.S.2d 717, app. dsmd. 21 N.Y.2d 880, lv. to app. den. 22 N.Y.2d 643, 292 N.Y.S.2d 1028, 239 N.E.2d 566 cert. den. 393 U.S. 1035, 89 S.Ct. 652, 21 L.Ed.2d 580; Matter of Pauling v. Smith, 46 A.D.2d 759, 361 N.Y.S.2d 16; Matter of Barbarito v. Moses, 31 A.D.2d 898, 297 N.Y.S.2d 831; Matter of Santella v. Hoberman, 29 A.D.2d 655, 286 N.Y.S.2d 647). We note in passing that much of the rationale for this construction of the statute derives from the Court of Appeals' similar treatment of almost identical language in the Education Law, § 310 with respect to the conclusiveness of determinations by the Commissioner of Education on appeal to him ¹ (see, esp., Matter of Board of Educ. of City of N.Y. v. Allen, 6 N.Y.2d 127, 136, 188 N.Y.S.2d 515, 520, 160 N.E.2d 60, 64; Matter of Ross v. Wilson, 308 N.Y. 605, 608, 127 N.E.2d 697, 698; Matter of Levitch v. Board of Education, 243 N.Y. 373, 375, 153 N.E. 495, 496). Much of appellants' argument upon this appeal is mistakenly focused on the rationality of appellant Forbes' determination of guilt and punishment. This focus would be appropriate had respondent Wiley brought an Article 78 proceeding in Special Term against Forbes' determination in the first instance.

Had that been the course pursued, the scope of judicial review with respect to such an Article 78 proceeding is well-established. This court, as well as the Court of Appeals, is vested with the power to deal, as a matter of law, with the measure of discipline imposed on a civil service employee (see, gen., Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1, 34 N.Y.2d 222, 230--231, 356 N.Y.S.2d 833, 839, 313 N.E.2d 321, 325; CPLR 7803(3); Matter of Bovino v. Scott, 22 N.Y.2d 214, 292 N.Y.S.2d 408, 239 N.E.2d 345; Matter of Bell v. Waterfront Comm., 20 N.Y.2d 54, 281 N.Y.S.2d 753, 228 N.E.2d 758). The standard of review generally applied was stated in Matter of Stolz v. Board of Regents (4 A.D.2d 361, 165 N.Y.S.2d 179) at page 364, 165 N.Y.S.2d at page 182 as follows:

'We believe that, reasonably construed, the statute authorizes us to set aside a determination by an administrative agency, only if the measure of punishment or discipline imposed is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness'.

(see also, Matter of Traber v. Feinstein, 39 A.D.2d 643, 331 N.Y.S.2d 150, affd. 32 N.Y.2d 860, 346 N.Y.S.2d 529, 299 N.E.2d 895; Matter of McDermott v. Murphy, 15 A.D.2d 479, 222 N.Y.S.2d 111, affd. 12 N.Y.2d 780, 234 N.Y.S.2d 723, 186 N.E.2d 570). What is shocking to one's sense of fairness has been recently defined by the Court of Appeals '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 visited or threatened by the derelictions of the individuals' (Matter of Pell, supra, 34 N.Y.2d at 234, 356 N.Y.S.2d at 842, 313 N.E.2d at 327).

Here, however, respondent Wiley elected to appeal from appellant Forbes' determination to an administrative tribunal. Where the attack is upon the Civil Service Commission determination made under section 76, the scope of judicial review available must be focused on the actions of the commission (see, Matter of Taylor v. N.Y.C. Transit Auth., supra). The issue of an administrative agency's scope of appellate review vis-a-vis that of the courts was presented in a case involving the Commissioner of Education's...