This appeal concerns the termination of employment of a public employee. The Petitioner, Brenda Harwood, served as a senior account clerk typist in the City of Watertown’s Parks and Recreation Department. After a twenty-nine year career with the Department, the City brought incompetence and misconduct charges against Harwood, pursuant to Civil Service Law § 75. The Hearing Officer found that two of the charges could be sustained by the evidence, and found Petitioner guilty of one count of “fail[ing] to deposit cash and checks in a timely manner” and one count of “willfully misleading the City’s retained accountant.” The City also found that Petitioner was guilty of a second count of incompetence because she had “fail[ed] to bill for services in a timely manner.” Petitioner was found not guilty of the additional charges of incompetence and misconduct. As a result of the Hearing Officer’s findings, the City “terminated [Harwood’s] employment” with the Department. Petitioner filed suit in the Supreme Court pursuant to Civil Practice Law and Rules Article 78, and Supreme Court Justice Greenwood transferred this matter to the Appellate Division Fourth Department.
The Appellate Division reviewed each of the charges in turn, beginning with the Hearing Officer’s finding that Petitioner was guilty of “willfully misleading the City’s retained accountant.” The City alleged that Petitioner had been dishonest regarding a number of uncashed checks. However, the court found that evidence raised by Petitioner–namely, that she had previously stated that she had not deposited a check for the City–directly contradicted the City’s position that she lied about making the deposit. Therefore, the court found this count was “not supported by substantial evidence.”
The court next analyzed the remaining incompetence charges together, noting a number of mitigating factors in favor of a more lenient sentence for Petitioner. The court noted “that there were several factors beyond [Harwood’s] control that contributed in the delays” in making the deposits. Petitioner’s service to the City in her official capacity, although not named in her official job description, included a number of time-consuming clerical, scheduling, and other assorted responsibilities that “took in excess of 50% of her time.” Petitioner also suffered from an illness that forced her to intermittently miss work over a period of six months, and the court noted that because no one else in the office took over her assignments during that period, “several of [her] completed invoices were inadvertently deleted[.]” The court also relied on Petitioner’s “long service to the City and her previously unblemished work record[,]” the testimony demonstrating that “she was a hard worker and did her best to complete all of her assigned duties[,]” and that she often stayed late without extra pay to justify mitigating her sentence.
In assigning a proper sanction for Petitioner, the court explained that the initial punishment of termination was vastly disproportionate to the nature of the original charged offenses, noting the penalty was “so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one’s sense of fairness.” (citing Matter of Pell v. Board of Educ. of Union Free Sch. Dist. No. 1. of Towns of Scarsdale and Mamaroneck, Westchester Cnty., 313 N.E.2d 321, 326 (N.Y.1974)). Accordingly, the court found that a sentence of a two-month suspension without pay, rather than termination, was appropriate for the two remaining incompetence charges.
988 N.Y.S.2d 814 (4th Dep’t. 2014)