In the Matter of Thomas J. McDougall v Nicholas Scoppetta, etc., et al.
Pursuant to Article 78, petitioner, Thomas J. McDougall, requested the court review a decision of the respondent and the administrative law judge, where the petitioner was found guilty of two charges of misconduct resulting in his termination. The court needed to determine whether the penalty of termination of the petitioner’s employment was top-heavy and shocking, which was perceived as an abuse of power.
The petitioner has been a member of the Fire Department of New York City for twenty-five years. After testing positive for the presence of cocaine in a random drug testing, a “Step 1” meeting was held to review the charges for violation the Fire Department regulations. McDougall was found guilty of all charges. However, due to the petitioner’s lengthy service to the Fire Department without any prior disciplinary problems, he should be allowed to resign and only be fined the sum of $80,000.
Following the “Step 1” conference, the matter was submitted to the Office of Trials and Hearing (OATH) for a hearing by an administrative law judge. The administrative law judge stated that pursuant to the Administrative Code of the City of New York § 15-113, the petitioner’s employment should be terminated.
The Commissioner of the Fire Department of the city of New York agreed with the administrative law judge and terminated the petitioner’s employment at the Fire Department. Resulting from his termination, petitioner had to forfeit his pension and retirement benefits, which included health insurance.
As stated in Administrative Code of the City of New York § 15-113, the power of the Commissioner to discipline members of the Department is reviewable under Article 78. The court needs to determine where the petitioner’s penalty was “arbitrary and capricious as a matter of law such that there was an abuse of power.”
Due to petitioner’s termination, the petitioner and his family will suffer from the loss of his pension and retirement benefits to which he earned during his 25 years of service in the Department. Petitioner was the sole financial supporter in his family. Therefore, no pension and retirement benefits would be devastating on the entire family.
The court acknowledges that this was an isolated incident for the petitioner in his twenty-five year employment with the Fire Department. Petitioner penalty is extremely shocking that an annulment of the administrative law judge decision should be imposed and a lesser penalty should be administered.
The petition is granted, with costs. The penalty of termination of the petitioner's employment is annulled and the matter is remitted to the respondents for a lesser penalty allowing the petitioner to retire and fining the petitioner the sum of $ 80,000.
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