June 05, 2018

Applying the "preponderance of the evidence" standard rather than the "substantial evidence" standard in a disciplinary hearing


Applying the "preponderance of the evidence" standard rather than the "substantial evidence" standard in a disciplinary hearing
Guzman v Bratton, 2018 NY Slip Op 03648, Appellate Division, First Department

Applying the preponderance of the evidence standard, the hearing officer found Petitioner, a New York City police officer, guilty of both specifications set out in the disciplinary charges filed against Petitioner. The penalty recommended by the hearing officer: to imposed on the Petitioner: dismissal from employment.

The appointing authority adopted the findings and recommendation of the hearing officer and dismissed Petitioner from the New York Police Department.

Petitioner appealed, contending, among other things, that the hearing officer applied the "preponderance of the evidence" standard in determining finding Petitioner guilty of the disciplinary charges filed against him instead of applying the "substantial evidence standard."

The Appellate Division noted that the "preponderance of the evidence standard" used by the hearing officer in determining that Petitioner was guilty of the disciplinary charges and specification is a higher standard than the substantial evidence standard that Petitioner argued should have been employed by the hearing officer.

Thus, said the court, "contrary to Petitioner's claims," the appointing authority relied upon the hearing officer's findings based on a higher, rather than lower, standard of proof in adopting the hearing officer's findings and the hearing officer's recommendation as to the penalty to be imposed.

Addressing the penalty imposed on Petitioner, termination from his position, the Appellate Division, citing Featherstone v Franco, 95 NY2d 550, explained that the court reviewing an administrative disciplinary action must uphold the sanction imposed by the appointing authority "unless it is so disproportionate to the offense that it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law."

Here, opined the court, "the penalty of termination of employment is not disproportionate to the misconduct and does not shock the conscience" in view of the fact that Petitioner was found guilty of two acts of serious misconduct, which adversely affected the integrity of the Police Department."

The decision is posted on the Internet at:

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