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Friday, June 24, 2011

Witness creditability determinations

Witness creditability determinations
CSEA Local 1000 [Vaziri-Cohen] v Tioga County, 288 AD2d 802

In an administrative disciplinary action, the hearing officer's determination is frequently based on his or her evaluation of the credibility of witnesses testifying at the disciplinary hearing. In the Vaziri-Cohen appeal the Appellate Division considered the issue of credibility in determining if substantial evidence supported the disciplinary determination resulting in Vaziri-Cohen's dismissal.

Susan Vaziri-Cohen was terminated after being found guilty of charges that she had falsified agency records, repeatedly failed to follow her superior's instructions and made demeaning remarks to a co-worker about her supervisor.

The Hearing Officer recommended that Vaziri-Cohen be dismissed from service based on a finding that her conduct had “hindered the mission of the agency and hurt its credibility” and that she “remained unwilling to concede that her behavior was unacceptable.”

CSEA appealed, contending that the hearing officer's findings were not supported by substantial evidence. The Appellate Division disagreed and dismissed the appeal.

The court pointed out that here the finding of the hearing officer with respect to the first charge -- falsification of official records -- turned on issues of credibility and inferences drawn by the hearing officer from the evidence presented. Finding that the conclusion drawn by the hearing officer was supported by both direct and circumstantial evidence, the court sustained the hearing officer's finding. Noting that both Vaziri-Cohen and her supervisor testified during the disciplinary hearing, the court said that “it was within the province of the Hearing Officer to implicitly reject the credibility of [Vaziri-Cohen's] exculpatory explanation.”

As to the second charge -- Vaziri-Cohen's alleged failure to follow work orders -- her supervisor testified that despite several successive directives by him concerning the inclusion of certain information in a client's medical record over the course of one week -- Vaziri-Cohen failed to add the information as directed.

Vaziri-Cohen, on the other hand, testified that she had made the changes directed by her supervisor. The court said that this conflict in the testimony given at the disciplinary hearing raised an issue of credibility implicitly resolved by the Hearing Officer's ruling against her.

As to the charge alleging Vaziri-Cohen made disparaging remarks about her superior to a co-worker, the Appellate Division said that substantial evidence supported the hearing officer's conclusion that, under the circumstances, her comments were “irresponsible and denigrating” and obviates any claim that they were made in good faith.

According to the decision, “the unrefuted testimony, including [Vaziri-Cohen's] admission, established that ... [she] made a denigrating and explicit comment to a co-worker about her supervisor ....”

As to the penalty imposed, dismissal, the Appellate Division wrote that “in view of the nature of the misconduct and insubordination involved in these charges, we see no basis upon which to disturb the penalty of dismissal, which we do not find was so disproportionate [to the offenses to which she was found guilty] as to be shocking to one's sense of fairness,” citing the Pell standard [Pell v Board of Education, 34 NY2d 222].

Creditability was also an issue in the Pelayo case [Pelayo v Safir, App. Div., First Dept., November 27, 2001]. Henry Pelayo, a New York City police officer, was dismissed from his position after being found guilty of administrative disciplinary charges alleging that he “knowingly gave false material testimony in felony court proceedings, and that he provided false information concerning the events underlying [those] criminal proceedings in departmental ... forms.”

The court said that Pelayo “challenges to the credibility determinations of the Assistant Deputy Commissioner are unavailing since, in an Article 78 proceeding, the reviewing court may not weigh the evidence, choose between conflicting proof, or substitute its assessment of the evidence or witness credibility for that of the administrative fact-finder.”

Handbooks focusing on New York State and Municipal Public Personnel Law:

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

The Disability Benefits E-book: - This e-book focuses on disability benefits available to officers and employees in public service pursuant to Civil Service Law §§71, 72 and 73, General Municipal Law §207-a and §207-c, the Retirement and Social Security Law, the Workers’ Compensation Law, and similar provisions of law. For more information click on: http://booklocker.com/3916.html

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html


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