41 A.D.2d 588 | N.Y. App. Div. | 1973
Judgment reversed, determination confirmed and petition dismissed, all without costs. Memorandum: In January, 1971 petitioner, ah employee at Rome State School, was assigned as an attendant in a ward of mentally retarded problem children ranging in age from 6 to 11 who were being treated under a program of behavior shaping. In this program good behavior by a child is to be reinforced and bad behavior ignored or, if this is not possible, the child is to be removed from any type of reinforcement. In the case of misbehavior, a child is not to be physically abused or even spoken to in a raised voice. On April 2, 1971 petitioner was suspended on charges of mistreatment of residents following a hearing. There was testimony that in three separate incidents on the night of March 31, 1971 petitioner struck one or another of the children within her care, respondent Director of the State School found that petitioner’s guilt of the charges had been established, and imposed a punishment of dismissal. In this article 78 proceeding in which neither party asked for a transfer to the Appellate Division for a review of the substantiality of the evidence supporting the charges, Special Term limited itself to a consideration of the measure of the discipline imposed. Concluding that dismissal was an arbitrary and excessive penalty,, it annulled the determination and remitted the matter to the Director for the imposition of a reprimand. On this appeal petitioner does not challenge the finding that she was guilty of the misconduct charged. Mindful that the power of the courts to disturb the measure of administrative punishment is