Friday, April 10, 2015

A court’s review of an adverse disciplinary decision promulgated after a hearing is limited to considering whether the determination was based on substantial evidence


A court’s review of an adverse disciplinary decision promulgated after a hearing is limited to  considering whether the determination was based on substantial evidence
2015 NY Slip Op 02963, Appellate Division, Second Department;
2015 NY Slip Op 03040, Appellate Division, First Department

An employee asked the court to review a disciplinary determination by the appointing authority that had adopted the findings and recommendation of a Committee of Aldermen made after a hearing. The Committee had found the employee guilty of two charges of misconduct or insubordination. The  penalty imposed by the appointing authority: termination of employment with the jurisdiction.

The Appellate Division dismissed the employee’s Article 78 petition explaining that the standard of review in an administrative determination made after a trial-type hearing directed by law is limited to considering whether the determination was based on substantial evidence.

The court said that “it is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject.” In the event there is conflicting evidence and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency.

Finding that there was substantial evidence supported the determination of the appointing authority that the employee committed certain acts of misconduct or insubordination, the court sustained the appointing authority’s decision. As to the penalty imposed, dismissal, the Appellate Division said that the penalty did not constitute an abuse of discretion as a matter of law “as it was not so disproportionate to the offenses as to be shocking to one's sense of fairness,” citing Kreisler v NYC Transit Authority, 2 NY3d 775.

Similarly, the Appellate Division affirmed a decision of the New York City Commissioner of Police that found a New York City police officer guilty of various disciplinary charges and dismissed him from employment as a police officer.

The court said that substantial evidence supported the Commissioner’s findings that the officer had [1] engaged in misconduct in two separate incidents and [2] that he gave false statements to the Civilian Complaint Review Board which investigated one of the incidents.

The officer had also admitted that he failed to properly secure his off-duty firearm and that he was in possession of an unregistered weapon belonging to his brother.

Citing Berenhaus v Ward, 70 NY2d 436, the Appellate Division said “There exists no basis to disturb the credibility determinations of the Assistant Deputy Commissioner of Trials” and the penalty imposed, termination of the police officer from his position, did not shock the court’s “sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

These decisions are posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2015/2015_02963.htm and:

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on


Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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