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 *613one’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.)

Present — Denman, P. J., Boomer, Pine, Balio and Fallon, JJ.