Smith v. Hager

Determination unanimously modified on the law and as modified confirmed without costs and matter remitted to respondent for further proceedings in accordance with the following Memorandum: Although there was substantial evidence to support a determination of misconduct, we find that the 30-day suspension imposed by respondent was improper. The county’s rules of conduct provide that an oral warning is an appropriate sanction for a first offense of "[ejngaging in conduct which may result in a safety hazard”. Regardless of whether we accept respondent’s assertion that the rules were merely intended as guidelines, we conclude that the sanction is so disproportionate as to shock one’s sense of fairness (see, Matter of Pell v Board of Educ., 34 NY2d 222, 233-234). Therefore, the matter is remitted to respondent for imposition of an appropriate sanction (see, Matter of Kerins v City of Niagara Falls, 167 AD2d 846). (Article 78 Proceeding Transferred by Order of Supreme Court, Steuben County, Finnerty, J.)