McDougall v. Scoppetta

• Decision Date: 20 July 2010
• Citation: 905 N.Y.S.2d 262,76 A.D.3d 338
• Parties: In the Matter of Thomas J. McDOUGALL, petitioner, v. Nicholas SCOPPETTA, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

905 N.Y.S.2d 262

76 A.D.3d 338

In the Matter of Thomas J. McDOUGALL, petitioner,

v.Nicholas SCOPPETTA, etc., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

July 20, 2010.

Lynn, Gartner & Dunne, LLP, Mineola, N.Y. (John W. Dunne of counsel), for petitioner.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Suzanne K. Colt of counsel), for respondents.

WILLIAM F. MASTRO, J.P., STEVEN W. FISHER, ARIEL E. BELEN, and LEONARD B. AUSTIN, JJ.

AUSTIN, J.

In this proceeding we are asked to determine whether, under the particular circumstances of this case, the penalty of termination of the petitioner's employment as a firefighter is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion.¹ Because we conclude, as a matter of law, that the penalty of termination is shocking to the judicial conscience, we set aside that penalty and remit the matter to the respondents for the imposition of the lesser penalty allowing the petitioner to retire as of the date of the petitioner's termination, June 27, 2008, and fining the petitioner the sum of $80,000.

The petitioner is a 25-year member of the Fire Department of the City of New York (hereinafter the Department). After a positive random drug test confirmed the presence of cocaine in the petitioner's system, a "Step-1" conference was held to review the charges for violation of regulations brought against the petitioner by the Department. Following that conference, a deputy assistant chief of the Department recommended that, although he found the petitioner guilty of all charges, due to "extenuating circumstances," the petitioner should be allowed to resign in addition to being fined the sum of $80,000, representing approximately one year's salary. The extenuating circumstances identified by the deputy assistant chief consisted of the petitioner's lengthy service to the Department without any previous disciplinary problems and the severe hardship that termination would impose upon the petitioner and his family since it would include forfeiture of the petitioner's pension benefits.

Thereafter, the Department submitted the matter to an administrative law judge for an "OATH" (Office of Administrative Trials and Hearings) hearing. At the OATH hearing, numerous witnesses testified on behalf of the petitioner attesting to his good character, devotion to the Department, and lack of prior drug usage, whichwas confirmed by prior negative drug test results. Moreover, the petitioner testified that he was the sole wage earner for his family and that the loss of his pension and medical coverage would impose a severe hardship on his family. Notwithstanding the foregoing mitigating testimony, the administrative law judge determined that the only available appropriate penalty pursuant to Administrative Code of the City of New York § 15-113 was termination of the petitioner's employment, which he recommended. In a determination dated June 23, 2008, the Commissioner of the Fire Department of the City of New York (hereinafter the Commissioner) adopted the administrative law judge's recommendation and findings, and terminated the petitioner's employment.

As a result of his termination of employment, the petitioner forfeited his pension, which was valued at approximately $2,000,000, and retirement benefits, which included health insurance coverage.

Prior to the Department's issuance of the charges of violation of regulations to the petitioner, the Department had promulgated All Units Circular (hereinafter AUC) 202 which set forth its "zero-tolerance" policy with regard to the use and possession of, inter alia, illegal drugs, which indisputably included cocaine. Section 4.1 of AUC 202 prohibited the use of any illegal drug while on or off duty.

AUC 202 § 8.3 permits termination of a member of the Department with a finding of guilt on a first offense. However, § 8.3 is not an absolute policy. AUC 202 § 8, entitled "Guidelines for Violation of this Policy," provides, "[t]hese guidelines are designed to cover the most common infractions, but there may be cases that do not fit precisely within them. The Department reserves the right to depart from these guidelines as the exacerbating or extenuating circumstances of each individual case require" (parenthetical omitted).

The power of the Commissioner to discipline members of the Department, as set forth in Administrative Code of the City ofNew York § 15-113,² is reviewable under CPLR article 78. Pursuant to CPLR 7803(3), this Court is empowered to determine whether the penalty of termination of the petitioner was arbitrary and capricious as a matter of law such that there was an abuse of discretion ( see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 235, 356 N.Y.S.2d 833, 313 N.E.2d 321; see also Matter of Harp v. New York City Police Dept., 96 N.Y.2d 892, 894, 730 N.Y.S.2d 786, 756 N.E.2d 74; Matter of Kelly v. Safir, 96 N.Y.2d 32, 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280). "There is no doubt that the reason for the enactment of the statute ( CPLR 7803) was to make it possible, where warranted, to ameliorate harsh impositions of sanctions by administrative agencies. That purpose should be fulfilled by the courts not only as a matter of legislative intention, but also in order to accomplish what a sense of justice would dictate" ( Matter of Pell, 34 N.Y.2d at 235, 356 N.Y.S.2d 833, 313 N.E.2d 321).

While due deference must be given to a determination of the Department ( see Matter of Harp, 96 N.Y.2d at 894, 730 N.Y.S.2d 786, 756 N.E.2d 74; Matter of Kelly v. Safir, 96 N.Y.2d at 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280), a court cannot operate merely as a rubber stampof the administrative determination "if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness" ( Matter of Pell, 34 N.Y.2d at 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [internal quotation marks omitted]; see also Matter of Kelly v. Safir, 96 N.Y.2d at 38, 724 N.Y.S.2d 680, 747 N.E.2d 1280). Thus, where the administrative sanction shocks one's sense of fairness and, thereby, as a matter of law, constitutes an abuse of discretion, this Court is authorized to set aside such a determination by the administrative agency ( see Matter of Kelly v. Safir, 96 N.Y.2d 32, 724 N.Y.S.2d 680, 747 N.E.2d 1280; Matter of Featherstone v. Franco, 95 N.Y.2d 550, 720 N.Y.S.2d 93, 742 N.E.2d 607; Matter of Pell, 34 N.Y.2d 222, 356 N.Y.S.2d 833, 313 N.E.2d 321; Matter of Bovino v. Scott, 22 N.Y.2d 214, 216, 292 N.Y.S.2d 408, 239 N.E.2d 345).

The Department's "zero tolerance" policy, no matter how laudable in purpose, does not distinguish between junior members of the Department and those who have served the Department well past the time that he or she could have retired,like the petitioner herein. The inflexibility of the application of AUC 202 § 8.3 to the petitioner is contrary to the analysis set forth by the Court of Appeals in Matter of Pell, which considered such factors as an employee's length of employment, the probability that a dismissal will leave the employee without any alternative livelihood, the employee's loss of retirement benefits, and the effect upon the employee's innocent family in cases where there is an absence of grave moral turpitude and grave injury to the agency involved or to the public weal ( see Matter of Pell, 34 N.Y.2d at 235, 356 N.Y.S.2d 833, 313 N.E.2d 321). Likewise, AUC 202 § 8 authorizes departure from the guidelines under "extenuating circumstances." The term "extenuating circumstances" is not defined in AUC 202. Accordingly, we apply the standard enunciated in Matter of Pell and its progeny ( see Matter of Sequist v. County of Putnam, 40 A.D.3d 1003, 836 N.Y.S.2d 287 [ Pell factors applied in annulling the termination of employment of school bus driver found guilty of single drug infraction] ).

The testimony at the hearing was undisputed that this was the first and only time that the petitioner had tested positive for an illegal drug; to wit, cocaine. Several times...