Judicial review of the disciplinary penalty imposed on an employee by the appointing authorityMatter of Rutkunas v Stout, 8 N.Y.3d 897 Anthony Rutkunas, a senior maintenance mechanic (carpenter) with the Westchester County Department of Parks, was found guilty of disciplinary charges that alleged that he (1) failed to bring wood to a job site; (2) failed to complete certain work, despite being asked to do so and (3) threw a coffee cup and at least two, four-inch nails from a height of "approximately fifteen feet in the direction of other employees who were working below him," two of which struck an employee in the back and chest. The Hearing Officer recommended a suspension without pay for a minimum of sixty days but noted that termination would be "equally appropriate." The appointing authority, Joseph Stout, Commissioner of the Westchester County Department of Parks, Recreation, and Conservation, adopted the finding of the Hearing Officer but chose to terminate Rutkunas from his position rather than suspend him without pay. Supreme Court ruled that Stout did not abuse his discretion in imposing the sanction of termination, stating "It cannot seriously be argued that the penalty is so disproportionate to the offense as to be shocking to one's sense of fairness." The Appellate Division disagreed, ruling that although the determination that the Rutkunas was guilty of misconduct was supported by substantial evidence, but "Under the circumstances, including, but not limited to, [Rutkunas'] lack of a prior disciplinary history, minimal prospects of alternative employment, and the devastating impact the sanction of termination imposes on his ability to support his family, the penalty of dismissal was so disproportionate to the offense committed as to be shocking to one's sense of fairness." The Appellate Division remanded the case to the Commissioner, stating that a penalty less severe than termination of Rutkunas employment should be imposed. The Commissioner appealed. The Court of Appeals reversed the Appellate Division's ruling, holding that Rutkunas' petition should be dismissed "in its entirety…" The decision notes that Rutkunas' conduct jeopardized the health and safety of his coworkers and of the public patrons of the facility at which he worked. Accordingly, said the Court of Appeals, "we cannot conclude that the penalty of dismissal imposed . . . shocks the judicial conscience as a matter of law," citing a number of decisions, including Matter of Will v Frontier Central School District Board. of Education. 97 NY2d 690, and Matter of Pell v Board of Education, 34 NY2d 222. The court observed that: "The Appellate Division has no discretionary authority or interest of justice jurisdiction in this Article 78 proceeding to review the penalty imposed by respondent Commissioner of the Westchester County Department of Parks, Recreation, and Conservation," citing Matter of Kelly, 96 NY2d at 38.
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