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Thursday, February 28, 2013

Use of hearsay evidence in an administrative disciplinary proceeding


Use of hearsay evidence in an administrative disciplinary proceeding
OATH Index No. 1944/12

A New York City Health and Hospital Corporation facility filed disciplinary charges against its manager of building services alleging that the manager had engaged in sexual contact with a patient suffering from dementia.

The patient did not testify, but his prior statements, which indicated he had consented to the sexual contact and received $5 afterward, were taken in evidence as admissible hearsay after OATH Administrative Law Judge Tynia D. Richard found them to be reliable and probative as the hospital’s security videos substantiated the patient’s hearsay statements and contradicted accused employee’s testimony.

Judge Richard sustained the charges and recommended that the manager be terminated from his position, commenting that the individual’s prior positive performance record and long tenure did not mitigate against imposing the penalty of dismissal for such serious misconduct. 

Hearsay testimony, which typically is barred from testimony in a criminal trial, is permissible in an administrative hearing. Indeed, in some instances the statute providing for the due process hearing specifically excuses compliance with or the application of the technical rules of evidence. For example, Civil Service Law §75.2 provides that “compliance with technical rules of evidence shall not be required,” while §3020-a.3.c(C) of the Education Law states “rules and procedures for the conduct of hearings ... shall not require compliance with technical rules of evidence.”

As the court said in Gray v Adduci, 73 NY2d 741, "it is well settled that hearsay is admissible in administrative hearings and may form the basis of an adverse determination."  

Despite its admissibility as competent evidence, however, an employee may not be found guilty of charges solely on the basis of hearsay. As the court explained in Brown v Ristich, 36 NY2d 183, some "real evidence" is required. "Real evidence" can be “direct,” that is evidence which standing alone establishes the facts at issue, or “circumstantial.”

The decision is posted on the Internet at:

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 2,100 page e-book is now available from the Public Employment Law Press. Click on http://booklocker.com/books/5215.html for additional information concerning this electronic reference manual.


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Electronic books [e-books] focusing on New York State and Municipal Public Personnel Law:

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1900+ page e-book. 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

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

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