
    In the Matter of Carmen Ahsaf, Respondent, v Ewald B. Nyquist, as Commissioner of Education of the State of New York, et al., Appellants.
    Argued May 5, 1975;
    decided June 12, 1975
    
      
      Louis J. Lefkowitz, Attorney-General (John J. O’Grady and Irving Galt of counsel), for appellants.
    I. The measure of discipline imposed by the regents upon this record was not so disproportionate to the offense as to be shocking to one’s sense of justice. The court below erred in the test it applied in reviewing and modifying the discipline imposed by the regents. (Matter of Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222; Matter of Stolz v Board of Regents of Univ. of State of N. Y., 4 AD2d 361; Matter of Scire v Board of Regents of Univ. of State of N. Y., 23 AD2d 943; Matter of Smigel v Board of Regents of Univ. of State of N. Y., 15 AD2d 623; Matter of Ray v Board of Regents of Univ. of State of N. Y., 9 AD2d 560; Matter of Geller v Board of Regents of Univ. of State of N. Y., 15 AD2d 953; Matter of Tompkins v Board of Regents of Univ. of State of N. Y., 299 NY 469.) II. The numerous examples of inconsistent testimony by petitioner in the record further justifies the regents’ finding that she lacked candor and hence was not a worthy subject of probation. (Matter of Sowa v Looney, 23 NY2d 329.)
    
      Philip R. McKnight for respondent.
    I. In rejecting the recommendation as to discipline made by the hearing panel without a compelling or justifiable reason for doing so, the Board of Regents abused its discretion as a matter of law to review such recommendations. (Matter of Corwin v Nyquist, 37 AD2d 656; Matter of Shander v Allen, 28 AD2d 1150; Matter of Pell v Board of Educ. of Union Free School Dist. No. 1, 34 NY2d 222; Matter of Donohue v New York State Police, 19 NY2d 954; Matter of Stolz v Board of Regents of Univ. of State of N. Y., 4 AD2d 361; Matter of Scire v Board of Regents of Univ. of State of N. Y., 23 AD2d 943; Matter of Rear v Board of Regents of Univ. of State of N. Y., 24 AD2d 1054.) II. The findings, determination and recommendation of the hearing panel were fully supported by the evidence produced at the hearings, and, therefore, its recommendation as to discipline was entirely consistent with the clear State policy of encouraging the rehabilitation of drug addicts.
   Jones, J.

We hold that the outright revocation by the Board of Regents of petitioner’s license to practice nursing as a licensed practical nurse, in the circumstances disclosed in this record, was an abuse of discretion and that the imposition of such penalty must accordingly be annulled. To this extent we agree with the Appellate Division. We modify the order in the Appellate Division, however, and remit the case for further consideration by the Board of Regents.

This is another occasion in which judicial review is sought of an administrative determination in a disciplinary or regulatory proceeding — a subject to which we addressed ourselves in Matter of Pell v Board of Educ. (34 NY2d 222). We recognized in Pell (p 241) that the cases there before us "involved only disciplinary sanctions imposed internally in various administrative agencies and [did] not cover discipline imposed upon regulated persons or entities outside an administrative agency”. Thereafter, in Matter of Butterly & Green v Lomenzo (36 NY2d 250) we confronted a case, as here, involving the imposition of a penalty by an administrative agency on a member of the public over whom it has regulatory authority. We then said (p 258), "[w]here an administrator is clothed by the Legislature with responsibility of licensing and disciplining a calling, he must not be denuded of the commensurate authority to punish those licensees who violate professional standards unless his measures are shockingly unfair.”

The standard of review as to internal discipline and external regulation is precisely the same, namely, was there an "abuse of discretion as to the measure or mode of penalty or discipline imposed”? (CPLR 7803, subd 3.) In both instances respect and weight are to be accorded the determination made by the agency charged with responsibility for fixing the penalty or discipline because of the special capability, competence and experience of that agency and in consequence of the confidence in it implicit in the legislative grant of authority and responsibility to it.

In cases involving internal discipline it is appropriate to accord a somewhat broader range to the scope of administrative discretion. In such matters the administrative official or agency is assumed to possess not only a special proficiency and experience which are not necessarily always to be found in the courts, but also an alertness to and a comprehension of the complexity and sensitiveness of personnel administration in continuing intraorganizational relationships which make it all the more important that the courts exercise restraint before intruding into matters involving internal discipline and morale.

In some contrast, the same considerations do not necessarily obtain with respect to judicial review of determinations enforcing external regulation. While recognizing, of course, the experience and the peculiar competence of the administrative agency officially charged in the public interest with responsibility for the regulation of activities of its licensees, nonetheless factors of both individual and comparative fairness and evenness among the licensees as a group should weigh more heavily.

Applying this latter perspective then to the present case, we would not have been disposed to disturb the penalty of unconditional revocation of the license of a practical nurse in the circumstances disclosed in this record had the imposition of such penalty been predicated on the specifications charged and proved (and as to the determination of guilt of which no issue is raised on this appeal). Our reading of the record, and particularly the report of the Regents Committee on Discipline, later adopted by the Board of Regents as the predicate for its determination, however, satisfies us that the penalty of revocation here was imposed not because this nurse had been found guilty of addiction to the use of heroin and cocaine (Education Law, former § 6911, subd 1, par f; L 1947, ch 820, as amd) or of unprofessional conduct in consequence of such addiction (Education Law, former § 6911, subd 1, par g; L 1947, ch 820, as amd), but rather because of her alleged "lack of candor”, a charge never made against appellant in the disciplinary proceedings and as to which she was given no adequate opportunity to respond.

The hearing panel had found appellant guilty of the two charges specified and had recommended revocation of her license and registration as a practical nurse but that such revocation be stayed and that appellant be placed on probation for a period of five years. After accepting the finding of guilt by the hearing panel, the Regents Committee reported: "It is also our opinion that there is certain conduct of the respondent reflected in the record, as hereinafter set forth, which dictates against the exercise of discretion in her favor with respect to the retention of her license on a probationary basis.” The committee report then proceeded to an inaccurate description of two episodes in which the report characterized the conduct of the nurse as "reflecting a lack of candor”.

We conclude that it was an abuse of discretion on the part of the administrative agency here to predicate the imposition of the penalty on alleged misconduct of which the licensee had not been charged in the disciplinary proceeding and as to which she was not given reasonable opportunity to respond. Accordingly we agree that the imposition of the penalty should be annulled.

Having then annulled the administratively imposed penalty in the exercise of the responsibility of judicial review, it does not necessarily follow that either the Appellate Division or our court should then proceed in the exercise of a judicial function to design a substitute or replacement penalty. As we have said the courts must recognize the capability, competence, and experience of the administrative agency in the fashioning of regulatory penalties. It is the responsibility of the agency to impose the penalty; it is the responsibility of the courts, within the limited scope available to them, to review the penalties imposed by the agency. It is primarily for the Board of Regents, not the courts, to weigh the significance to be attached to appellant’s participation in the methadone maintenance program and her efforts at rehabilitation, as well as the possibly adverse effect of outright revocation of her license on the State policy of encouraging rehabilitation of drug addicts.

Accordingly, the order of the Appellate Division should be modified and the case remitted to the Appellate Division with directions that it be sent back to the Board of Regents for reconsideration of the penalty to be imposed.

Fuchsberg, J.

(concurring in part and dissenting in part). For the very reason that the great expansion of administrative law, as a concomitant to the vastly increasing number, size and complexity of regulatory agencies in recent decades, make it practical for the judicial branch of government to exercise restraint in reviewing the determinations of such agencies, we are required, in the course of judicial review, to be, if anything, more alert than ever to those instances which call out for our intervention because a penalty, punishment or measure of discipline imposed by an administrative agency is so "' "disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness” ’ ” (Matter of Pell v Board of Educ., 34 NY2d 222, 233). The majority holds, and I agree, that there has been such abuse of discretion as to the measure or mode of the penalty imposed here sufficient to require judicial action. Where that has occurred, though it may be appropriate "more often to remand the matter for the fixing of the sanction by the agency initially exercising the power”, we may "deem the record sufficient to permit the reviewing court to assess the permissible measure of punishment warranted”. (Matter of Pell v Board of Educ., supra, at p 234). I believe this to be such a case. Therefore, I would not only affirm the judicial annulment of the penalty imposed by the Board of Regents, but also the Appellate Division’s decision to reinstate the specific lesser penalty, as recommended by the board’s own hearing panel itself, providing as it does for an adequate period as a nursing probationer instead of dealing a death knell to the career of one who has already demonstrated the will to cure her personal problem. (Cf. Matter of Shore Haven Lounge v New York State Liq. Auth., 37 NY2d 187; dissent in Matter of Leake v Sarafan, 35 NY2d 83, 92.)

Chief Judge Breitel and Judges Jasen, Gabrielli and Wachtler concur with Judge Jones; Judge Fuchsberg concurs in part and dissents in part and votes to affirm in a separate opinion; Judge Cooke taking no part.

Order modified, without costs, and the matter remitted to the Appellate Division, Third Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.  