Employer directed to reconsider the penalty imposed following the annulment of some, but not all, of the disciplinary charges and specifications filed against the employee
Graham v New Hampton Fire Dist., 2015 NY Slip Op 06917, Appellate Division, Second Department
The New Hampton Board of Fire Commissioners adopted, in part and rejected in part the recommendation of a hearing officer, made after a disciplinary hearing and found Daniel Graham, a member of the fire department, guilty of insubordination, misconduct, incompetence, and conduct unbecoming of a member of the fire department. The Fire District imposed the penalty of termination of Graham’s employment with the district.
Graham appealed and the Appellate Division vacated the penalty imposed, termination, because it annulled some, but not all of the charges, filed against Graham. The court then confirmed the determination with respect to the remaining charges and specifications and remanded the matter the New Hampton Board of Fire Commissioners for to determine the appropriate penalty to be imposed in consideration of the charges that survived the Appellate Division’s scrutiny and to then impose that penalty.*
The court explained that judicial review of an administrative determination made after a hearing at which evidence is taken is limited to consideration of whether that determination is supported by substantial evidence. While the Board's determination as to Specification One of Charge One is supported by substantial evidence in the record, the Appellate Division said that the Board's determination that Graham was guilty of the misconduct alleged in Specification Two of Charge One must be annulled because it was “duplicative of the Board's determination in connection with Specification One of Charge One, citing Levi v Lauro, 58 AD3d 851.
The court found that with respect to Specification One of Charge Two, the Board's determination was supported by substantial evidence.** The Appellate Division noted that the Board had credited one witness's testimony that was based in part upon the statements and observations of her children. However, said the court, hearsay statements are admissible in administrative proceedings, and may form the basis for an agency's determination.
Observing that certain testimony conflicted with other testimony and that such conflicting testimony presented issues of credibility, the Appellate Division explained that, in the works of the court, “Where room for choice in administrative fact finding exists, a reviewing court may not weigh the evidence or reject a rational credibility determination made by the administrative decision maker,” citing Berenhaus v Ward, 70 NY2d 436.
* The Board had imposed a penalty of termination of Graham’s membership in the District's fire department upon a finding that he was guilty of Charges One and Two. As the court dismissed Charge One, Specification Two and Charge Two Specification Two, the penalty imposed was annulled and the matter returned to the Board to consider the appropriate penalty to be imposed upon Graham with respect to the surviving charges and specifications, Charge One, Specification One and Charge Two, Specification One.
** As to the Board's determination with respect to Specification Two of Charge Two, the Board conceded that its determination was not supported by substantial evidence and thus was annulled.
The decision is posted on the Internet at:
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A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/
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