McCaskill v. D'Elia

O’Connor, J.

dissents and votes to confirm the determination and dismiss the proceeding on the merits, with the following memorandum: The record amply supports the determination of the respondent Commissioner of the Nassau County Department of Social Services that petitioner’s negligence constituted a breach of security permitting the escape of a child from the Nassau County Children’s Shelter on October 31, 1980. This court’s power of review is limited to the question of whether the determination was supported by substantial evidence on the entire record (CPLR 7803, subd 4). Nevertheless, the majority decision proceeds to quibble with the commissioner’s weighing of conflicting testimony and his discretionary decision to discipline only petitioner. I cannot acquiesce in this invasion of the commissioner’s jurisdiction over his security staff. Petitioner was charged with a negligent breach of security that resulted in the escape of a child from the children’s shelter. Among the acts of negligence found by the commissioner was her leaving a set of keys on a table in the staff lounge instead of transferring it to her relief or depositing it in the key cabinet when the lounge door was open and the child was dressed and in the area (specifications 3, 4, 5, 6 and 7). Petitioner testified that she was the senior worker on the night shift, and was unaware of any written rules or manual governing procedures at the shelter even though she had worked there nine years. Toward the end of her shift she prepared the child in question for her scheduled release that day into the custody of an upstate school. She also finished her report for her tour of duty and’collected her personal effects in the staff lounge in order to leave when her relief arrived. Petitioner then went to the child’s room to let her out and give her an after-breakfast cigarette while she waited for her transfer.- Petitioner’s relief was about 25 minutes late. Petitioner waited to leave as the relief cosigned her report and the child waited outside the staff post known as the “cage”. Then the relief’s assistant arrived. Petitioner asked the assistant to use the set of keys that petitioner had just transferred to her relief in order to unlock the staff lounge so petitioner could pick up her personal effects and leave. Petitioner admitted that she had left a duplicate set of keys known as the number two keys in the lounge. Petitioner and the assistant went down the hall to the lounge together with the child following them. While petitioner put on her coat and gathered her personal effects, the assistant and the child talked in the front of the lounge. Petitioner then left the lounge, the assistant following her out, with the child left by the lounge. Petitioner “punched out” of the shelter at 7:15 a.m. arid on arriving home at 8:45 a.m. found a message to telephone the shelter. She did so . and was informed of the escape. Her relief asked her which set of keys she had given her, and petitioner told her, adding that she had also informed the relief that she had left the second set locked in the staff lounge. The relief responded, “Well, that door doesn’t lock.” Petitioner testified at her hearing that it was the practice to exchange keys between outgoing and incoming shifts by placing them on the lounge table if the shifts happen to meet outside the “cage”. Nevertheless, she admitted that the second set of keys had been left on the lounge table while the door was open for her to gather her personal effects. In particular, she saw them on the table as she left the lounge, was kissed good-bye by the child at the lounge door, and left behind both the child and the assistant as she proceeded down thp hall in order to punch out, *439without knowledge of what was happening behind her. Petitioner said she assumed that at that point the child was under the supervision of the relief and assistant, even though she was not sure if the lounge door had been closed after she left that room. Petitioner’s testimony, by itself, constituted substantial evidence supporting the commissioner’s determination that her carelessness in leaving the keys on the lounge table to which the child had foreseeable access constituted a negligent breach of security. Further evidence from other witnesses merely bolstered this conclusion. Petitioner’s relief testified that when she arrived the outer doors of the shelter were locked, thus blocking the child’s escape, but that the lounge door was open. The relief testified that the escape required a set of keys, and the second set was not found in the lounge where petitioner told her she had placed it before leaving. According to the relief, it was not standard procedure to transfer keys between shifts by leaving them on the lounge table, and petitioner had never exchanged keys with her in that manner, whether the exchange involved one set or, as it did on occasion, two sets of keys. The relief testified that she did not notice that a set of keys was missing at first because she was talking with petitioner and reading petitioner’s report. She did not order the child back to her room because she wanted to inventory the keys first, but she could not open the key box until she obtained the original set of keys, which she had given to the assistant in order to let petitioner out of the building. When the assistant returned with her keys, the relief inventoried the key sets and found the number two set missing, and in the four- or five-minute interim she also noticed that the child had disappeared. The assistant testified that when she arrived shortly after petitioner’s relief, the lounge door was open, petitioner and her relief were in the “cage”, and the child was walking up and down the hall in the vicinity of the “cage”. The assistant informed petitioner that her spouse was waiting for her outside, and she picked up the first set of keys from the desk where the relief was sitting to accompany petitioner to the staff lounge. There the assistant hung her coat and petitioner picked up her personal effects. They left the lounge, petitioner first, and the assistant closed the door behind them. The assistant escorted petitioner to the exit, then returned, put the keys down and asked the relief for her set of keys, which was supposed to be the number two set. The relief could not find the second set and they then discovered the child was missing. The assistant testified that she had not seen any keys on the lounge table. A union representative who worked at the shelter testified that the door to the staff lounge chronically failed to lock when closed. The director of the shelter testified that petitioner had admitted to him that she had left the number two set of keys on the lounge table rather than personally handing them to her relief or depositing them in the key box. The record further discloses that although the union representative testified that she knew of no prior disciplinary actions taken against workers after escapes, petitioner’s attorney aborted a line of questioning to prove that the instant disciplinary proceeding against petitioner was taken in retaliation for an earlier grievance filed on her behalf. On this record, it is clear that the commissioner’s determination to hold petitioner responsible for the child’s escape is rational and fully supported by the evidence. It may very well be that this record would support a finding that other members of the shelter staff were also guilty of negligence in this matter. Nevertheless, the only question for this court is whether the commissioner’s determination to affix blame upon petitioner for her obvious carelessness, and to find that such carelessness during the shift was a causative factor in the escape shortly after she left the shelter, was supported by the evidence. I believe it was. Furthermore, the measure of the discipline imposed on the commissioner’s finding is in no manner shocking under the test laid down in Matter of Pell v Board of Educ. (34 NY2d 222). 1 therefore dissent and vote to confirm the determination in its entirety.