8 N.Y.2d 37 | NY | 1960
Lead Opinion
Petitioner, after having been employed by respondent Transit Authority and its predecessor for more than 20 years as a station agent or ticket seller, was found guilty after a trial before the Authority on three of five charges. The specifications on which petitioner was convicted accused her of collecting fares from passengers and then directing such passengers to enter onto the station platform by using an exit gate .without causing their fares to be registered by the “ passimeter totalizer ” or turnstile. Two of these specifications charged further that petitioner failed to report these incidents and retained for her own use the fares collected from those passengers who had used the exit gate instead of the turnstile. After a hearing, at which petitioner was represented by counsel and testified on her own behalf, the hearing officer sustained the charges and recommended to the Authority that petitioner be dismissed. The Authority dismissed her from her position and she brought this proceeding which was transferred to the Appellate Division, Second Department.
The Appellate Division, by a vote of 3 to 2, confirmed the "determination of guilt but modified the Authority’s determination by reducing the punishment from dismissal to suspension for six months from November 13, 1958, that being the date
We have examined the evidence and hold that it is sufficient to support the findings of guilt.
More difficult questions arise from the Appellate Division’s reduction of the sanction from dismissal to a six-month suspension. The Appellate Division made a finding that “ under all the circumstances the punishment imposed was excessive ”, citing subdivision 5-a of section 1296 of the Civil Practice Act (supra). Subdivision 5-a was added in 1955 to overrule the holdings (see Matter of Barsky v. Board of Regents, 305 N. Y. 89) that no judicial review was available as to the measure of punishment imposed by administrative bodies acting within their powers. The 1955 amendment accomplished this by listing an additional issue to be passed on by the courts: ‘ ‘ Whether the respondent abused his discretion in imposing the measure of punishment or penalty or discipline involved in the determination.” The Authority argues earnestly that it was an abuse of discretion in this case for the Appellate Division to change this discipline and to hold that dismissal was excessive punishment. The Authority cites Matter of Stolz v. Board of Regents (4 A D 2d 361) where the Appellate Division, Third
At this point we come to another question, a new one in this court: Does subdivision 5-a authorise a fixing by the court of a new lower penalty or must the court, finding the administrative penalty excessive, remit the case to the administrative body to fix a new punishment? We find no other reported case where the reviewing court itself fixed a lesser penalty although there are many where courts have sent such matters hack to administrative boards to fix new penalties. No definite indication is discovered as to the legislative intent in this respect but some of the material in the New York State Legislative Annual (1955, pp. 32-35) suggests that subdivision 5-a was intended to give the court, in the course of its judicial inquiry a¡s to abuse of discretion, complete power over the whole subject matter. We hold that the power exists. Otherwise, in a case like the present one, the Appellate Division, if it felt that a six-month suspension was ail that could reasonably he imposed, would have to send the ease back to the Authority to fix a penalty no greater than that. Such circumlocution should be avoided. In appropriate cases, which will probably be few, the reviewing court can order a lesser discipline, much as it does in criminal cases (Code Grim. Pro., § 543).
There is one more problem in the case. The Authority says that in any event a six-month suspension was Illegal under subdivision 3 of section 75 of the Oivil Service Law (supra). That statute says that when a civil service employee is found guilty
The order should be affirmed, without costs.
Dissenting Opinion
All the members of the Appellate Division as well as of this court are agreed that the determination of guilt be confirmed, but there is disagreement as to the punishment. We do not see how it may reasonably be said that when a trusted employee is found guilty of stealing sums of money, though they be small in amount, as here, respondents have abused their discretion in discharging her. By the determination below, they must retain in the civil service one who has been found guilty of such criminal misconduct.
We had no hesitancy, in Matter of Douglas v. New York State Thruway Auth. (6 NY 2d 721), in affirming an order of the Appellate Division which confirmed a determination of the New York State Thruway Authority dismissing petitioner for misconduct for having misappropriated several 50-cent tolls. Yet here the majority say that similar discipline meted out by respondents is an abuse of discretion. This undermines the right of an administrative agency to discipline misconduct as authorized by law, and in our judgment will impair the high standards required of our civil servants.
Moreover, subdivision 5-a of section 1296 of the Civil Practice Act (enacted as L. 1955, ch. 661) does not authorize the Appellate Division to fix punishment even in a case where it rightly believes the punishment imposed is excessive (Matter of Stolz v. Board of Regents, 4 A D 2d 361; Matter of Leavitt v. Board of Regents, 9 A D 2d 987). In the plainest of language the statute provides that the Appellate Division may determine only “ Whether the respondent abused his discretion in imposing the measure of punishment ”. (Emphasis supplied.) It may not substitute its own judgment for that of the adminis
Finally, there is no warrant whatsover for the Appellate Division’s substitution of a six months’ suspension of petitioner. Our courts can have no greater power, when it comes to the question of punishment, than has the administrative agency itself. The law is clear, and they are governed by precisely the same statute. Subdivision 3 of section 75 of the Civil Service Law provides that where an “ employee is found guilty of the charges, the penalty or punishment may consist of a reprimand, a fine not to exceed one hundred dollars * * *, suspension without pay for a period of not exceeding two months, demotion in grade and title, or dismissal from the service ” (emphasis supplied). Suspending petitioner for six months was clearly unauthorized by any statute and has no warrant in law.
We would reverse the Appellate Division and confirm the respondents’ determination in all respects, without costs.
Judges Dye, Fuld, Van Voorhis and Burke concur with Chief Judge Desmond ; Judge Froessel dissents in an opinion in which Judge Foster concurs.
Order affirmed.