No-Remittal After Partial Annulment of Duplicative Specification in Civil Service Law § 75 Discipline

Commentary on Matter of Fabian v. Westchester County (2025 NY Slip Op 04784, App Div 2d Dept, Aug. 27, 2025)

Introduction

This commentary analyzes the Appellate Division, Second Department’s decision in Matter of Fabian v. Westchester County, an Article 78 review of a Civil Service Law § 75 disciplinary determination. The petitioner, a senior caseworker with the Westchester County Department of Social Services (DSS), was charged with 35 specifications of misconduct or incompetence. After a hearing, 23 specifications were sustained and the petitioner was terminated. On review, the court annulled one specification (No. 32) as unsupported by substantial evidence due to a misdating and duplication issue but otherwise confirmed the determination and upheld the penalty of termination without remitting for a new penalty determination.

Key issues included: (1) the substantial evidence standard for reviewing § 75 disciplinary findings; (2) the “Pell” proportionality standard for penalties; and (3) when remittal for reconsideration of penalty is required after the court dismisses one or more specifications. The decision provides a clear, precedential refinement on the last point: remittal is not required when the annulled specification is duplicative, erroneous only in date, and demonstrably not relied on in the penalty determination.

Summary of the Judgment

• The petition was granted in part: specification 32 was annulled and dismissed because the alleged date (“on or about November 25, 2020”) did not match the evidentiary record; the underlying conduct duplicated the incidents already captured in specifications 15 and 16.
• The remaining sustained specifications (1–4, 8, 9, 11, 13, 15, 16, 22–31, 33, 34) were supported by substantial evidence.
• Despite annulling one specification, the court declined to remit for reconsideration of penalty, finding that the hearing officer did not substantively rely on specification 32 and that it was effectively a typographical error.
• The penalty of termination was not “so disproportionate to the offense as to be shocking to one’s sense of fairness,” especially given the number and serious nature of the incidents and the petitioner’s prior disciplinary record.

Analysis

Precedents Cited and Their Influence

The court’s analysis rests on established administrative law principles, reinforced through a set of cited authorities:

• Substantial Evidence Standard:
  • Matter of Scott v Westchester County (204 AD3d 807) and Matter of Cupo v Uniondale Fire Dist. (181 AD3d 594): Reinforce that judicial review in § 75 cases is limited to whether the determination is supported by substantial evidence.
  • Matter of Guarnieri v County of Rockland (226 AD3d 1018), Matter of Wright v State Univ. of N.Y. Maritime College (179 AD3d 1080), Matter of Ciganik v NYC OATH (224 AD3d 898), and Matter of Call-A-Head Portable Toilets, Inc. v NYS DEC (213 AD3d 842): Define substantial evidence as relevant proof a reasonable mind may accept as adequate, more than “seeming or imaginary” but less than a preponderance.
  • Matter of Grimaldi v Gough (114 AD3d 679) and Matter of Berenhaus v Ward (70 NY2d 436): Emphasize deference to the agency’s weighing of conflicting evidence; courts may not reweigh where the agency’s choice is supported and room for choice exists.
• Penalty Review (Pell Doctrine):
  • Matter of Sekul v City of Poughkeepsie (195 AD3d 622) and City School Dist. of the City of N.Y. v McGraham (17 NY3d 917): The penalty may be set aside only if “shocking to one’s sense of fairness,” and courts do not refashion a penalty simply because reasonable minds may differ.
  • Matter of Harris v City of Poughkeepsie (162 AD3d 663), Matter of Doran v Town of Babylon (219 AD3d 832), and Matter of Sullivan v County of Rockland (192 AD3d 895): Elaborate on assessing proportionality relative to the misconduct and the harm or risk of harm.
  • Matter of McDougall v Scoppetta (76 AD3d 338) and Matter of Pell v Board of Educ. (34 NY2d 222): Identify additional factors where “grave moral turpitude” and “grave injury” are absent—length of service, likelihood of alternative livelihood, retirement benefits, and impact on innocent family.
• Remittal After Partial Annulment:
  • Usual Rule: Matter of Davis v Town of Islip (234 AD3d 960) and Matter of Kelly v County of Dutchess (176 AD3d 1060) reflect the general practice of remitting for reconsideration of penalty when some charges are dismissed.
  • Exception Applied Here: Matter of Coleman v Town of Eastchester (70 AD3d 940) supports dispensing with remittal where the dismissed specification is duplicative/immaterial and the record shows the penalty did not rely on it.
  • Affirmance of Penalty in Comparable Contexts: Matter of Argenti v Town of Riverhead (131 AD3d 1053), Matter of Thomas v City of Mount Vernon Dept. Pub. Safety (267 AD2d 241), and Matter of Thomas v Town of Southeast (168 AD3d 955) support upholding termination based on serious and numerous incidents and prior discipline.

These precedents collectively anchor the court’s restrained review of factual determinations, its disciplined application of proportionality under Pell, and, most notably, its reasoned refusal to remit the penalty based on the nature and insignificance of the dismissed specification.

Legal Reasoning

The court proceeds in three steps:

1. Substantial Evidence Review:

   The court confirms most findings. On the “R” case, it credits evidence that the petitioner accepted a gift (perfume) from a client, invited the client to her home, discussed surrogacy, and suggested fabricating domestic violence allegations—each a serious breach of professional boundaries and agency policy. On the “EC” case, it cites interactions with a pregnant child where the petitioner undermined other supports, blamed the child, spoke over her causing sustained distress, and disregarded abuse claims. Given the deferential substantial evidence standard, the Administrative Officer’s factual choices are sustained.

2. Selective Annulment (Specification 32):

   Specification 32 alleged misconduct in the “EC” case “on or about November 25, 2020.” The record, however, showed that the misconduct described occurred around May 2020, arising from the same incidents as specifications 15 and 16. Because the timing alleged in specification 32 did not match the proof and the conduct was already encompassed in other specifications, specification 32 lacked substantial evidence as pleaded and was dismissed.

3. No Remittal; Penalty Affirmed:

   Although dismissal of a specification typically triggers remittal for a new penalty determination, the court declines to remit for two reasons. First, the misconduct in specification 32 is “largely duplicative” of sustained specifications 15 and 16, differing only by an erroneous date. Second, the hearing officer’s report contains no substantive discussion of specification 32, which the petitioner herself characterized on appeal as “likely a typographical error,” supporting the conclusion that the penalty did not rely on it. Against the backdrop of 22 remaining sustained specifications, the termination is not shocking to the court’s sense of fairness, particularly given the seriousness and number of incidents and the petitioner’s prior disciplinary record.

Impact and Significance

This decision sharpens New York administrative practice in three ways:

• Clarified Threshold for Remittal: The case crystallizes a workable exception to the default rule requiring remittal when any specification is dismissed. Where the dismissed count is duplicative, stems from an obvious clerical or dating error, and the record shows the penalty decision-makers did not rely on it, the Appellate Division may affirm the penalty without remand.
• Boundaries and Professional Ethics in Social Services: The opinion underscores that boundary violations—accepting gifts, inviting clients home, discussing deeply personal arrangements such as surrogacy, or encouraging fabrication of allegations—are viewed as serious misconduct warranting termination, particularly in child welfare contexts where client vulnerability and public trust are paramount.
• Reaffirmed Deference to Administrative Fact-Finding: By restating the substantial evidence standard and the limits on reweighing conflicting testimony, the court reinforces that Article 78 review is not a de novo reassessment but a narrow inquiry into reasonableness and sufficiency of proof.

For agencies, the decision validates disciplined charge-drafting while signaling tolerance for harmless clerical errors if the same conduct is otherwise properly charged and supported in the record. For employees and unions, it is a reminder that surgically eliminating a single, duplicative allegation will not necessarily recalibrate the penalty absent a showing of reliance on the stricken count.

Complex Concepts Simplified

• CPLR Article 78: A procedural vehicle to challenge determinations by New York administrative agencies (or bodies acting in a quasi-judicial capacity). The court reviews whether the determination was made in violation of lawful procedure, affected by an error of law, arbitrary and capricious, or unsupported by substantial evidence.
• Transfer under CPLR 7804(g): When a petition raises a “substantial evidence” question, the Supreme Court transfers the case to the Appellate Division for resolution of that issue.
• Civil Service Law § 75: The statute governing disciplinary procedures for certain public employees. It ensures due process through notice of charges and the opportunity for a hearing before discipline is imposed.
• Substantial Evidence: A low-but-meaningful standard requiring “such relevant proof as a reasonable mind may accept as adequate.” It is less than a preponderance of the evidence but more than mere suspicion.
• Specification: An individual, discrete charge or count of misconduct or incompetence within a disciplinary proceeding.
• Remittal: When an appellate court sends a case back to the agency or lower body for further action, often to reconsider the penalty after some charges are dismissed.
• Pell Doctrine (“Shocking to One’s Sense of Fairness”): The foundational standard (from Matter of Pell) for reviewing the proportionality of administrative penalties. Courts rarely disturb penalties unless they are grossly disproportionate to the misconduct and its impact.
• Typographical/Misdating Error: A clerical mistake in a specification (e.g., wrong date). This decision confirms that if the mistake is harmless because the conduct is otherwise proven and encompassed by other specifications, the penalty may stand without remand.

Practical Takeaways

• Agencies should:
  • Articulate each specification clearly and accurately, but recognize that minor clerical errors may be harmless if the same misconduct is substantiated elsewhere in the record.
  • Ensure the hearing officer’s report identifies the specific misconduct supporting the penalty, minimizing reliance on any potentially defective count.
• Employees and unions should:
  • Understand that success in dismissing a single, duplicative count may not yield a reduced penalty unless they can show the decision-maker relied on that count or that its dismissal materially alters the disciplinary landscape.
  • Focus arguments on disproving the most serious specifications and demonstrating disproportionate impact under Pell with concrete evidence (e.g., comparative discipline, mitigating service history).
• Courts will:
  • Continue to defer to agency credibility and factual determinations if supported by substantial evidence.
  • Apply a nuanced approach to remittal, balancing administrative efficiency with fairness, particularly where a dismissed specification is plainly duplicative or clerically flawed and non-prejudicial.

Conclusion

Matter of Fabian v. Westchester County reaffirms core tenets of New York administrative law—deference under the substantial evidence standard and robust adherence to the Pell proportionality test—while providing a clarifying rule on remittal after partial annulment. The Appellate Division held that remittal is unnecessary where the dismissed specification is duplicative, misdated, and demonstrably not relied upon in the penalty assessment. Substantively, the case underscores the gravity with which the courts treat professional boundary violations and harmful conduct toward vulnerable clients in social services. Procedurally, it offers a pragmatic template for handling clerical defects in multi-count disciplinary cases without derailing justified penalties. The ruling thus advances both doctrinal clarity and administrative practicality.