Judicial review – credibility of a witness

Judicial review – credibility of a witness
Danahy v Kerik, 298 A.D.2d 278

Assuming a public employer follows proper procedure, what must be shown to sustain discipline it invoked under Section 75 of the Civil Service Law? Historically the courts have indicated that as long as there is substantial evidence supporting the finding(s) of fact and that the disciplinary penalty imposed did not violate the Pell standard, they will not disturb the decision of the employing body.

Under the Pell standard, the Court will not substitute its judgment as to appropriate disciplinary action for that of the employing body unless the discipline is so harsh as to "shock one's sense of fairness."

What happens, however, when there is an issue concerning the credibility of a witness's testimony? In Danahy, the Appellate Division reaffirmed its long-standing position that it will not overrule a hearing officer who decides to credit one witness's testimony over another's. In other words, the trier of the case's decision as to creditability will prevail unless the challenging party can demonstrate that such reliance was manifestly improper, a difficult task at best.

Disciplinary charges alleging misconduct were filed against a New York City police officer, Kevin Danahy. The hearing officer found Danahy guilty of the charges -- he used excessive force in making an arrest -- and recommended that Danahy be suspended for 20 days without pay. The Police Commissioner accepting the hearing officer's findings and recommendation.

Danahy had testified that he didn't strike or otherwise injure the complainant, but rather he and the complainant merely fell to the ground while the complainant was flailing his arms in an attempt to avoid being handcuffed. The hearing officer, however, rejected Danahy's version of the event and found him guilty of the charges.

Danahy commenced an Article 78 proceeding challenging the ruling, contending that (1) the decision wasn't supported by substantial evidence and that (2) the discipline imposed violated the Pell Standard. The Court said that it would not disturb the hearing officer's determination as to the credibility of witnesses and that the 20-day suspension did not violate the Pell Standard.

Typically the courts will consistently defer to a hearing officer with respect to the determinations concerning the credibility of the witness testifying in a Section 75 disciplinary hearing. Essentially, where the court determines that there is substantial evidence to support the hearing officer's findings and establish guilt, the critical question becomes whether or not the penalty imposed reasonable under the circumstances.

In this instance the Appellate Division held that a suspension for 20 days without pay "did not shock its sense of fairness" and sustained the Commissioner's determination.