November 28, 2018

Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to §75 of the Civil Service Law


Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to Civil Service Law §75 
O'Connor v Cutting, 2018 NY Slip Op 07379, Appellate Division, Third Department

An Essex County deputy sheriff was served four disciplinary charges pursuant to Civil Service Law §75. The appointed Hearing Officer partially sustained two of the four charges and dismissed all the remaining charges. As to the penalty to be imposed, the Hearing Officer recommended that the deputy sheriff be suspended without pay for two months.

The Sheriff then appointed the County Manager to review the §75 Hearing Officer's findings and recommendation and make the final determination. After reviewing the hearing transcripts and exhibits, the City Manager issued a determination that rejected the §75 Hearing Officer's findings, sustained three of the charges and recommended that the deputy sheriff's employment be terminated.

The Sheriff adopted the City Manager's determination and recommended penalty and terminated the deputy sheriff'. The deputy sheriff challenged the Sheriff's decision and sought a court order annulling the City Manager's determination finding her guilty of the disciplinary charges or, in the alternative, an order vacating the penalty of dismissal imposed by the Sheriff. Supreme Court transferred the matter to the Appellate Division, which affirmed the Sheriff's decision.

Citing Matter of Kuznia v Adams, 106 AD3d 1227, the court explained that "The standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence in the record as a whole."

Addressing the deputy sheriff's argument that the City Manager had "improperly substituted his own credibility determinations for those of the Hearing Officer," the Appellate Division said that the credibility determinations of a hearing officer are not binding upon the official charged with making a final determination, "who, in the exercise of his or her duty to weigh the evidence and resolve conflicting testimony, may make different factual findings and conclusions, provided they are supported by substantial evidence."

Finding that the City Manager had provided specific reasons for his credibility determinations that were supported by logical inferences drawn from the testimony and the additional evidence that had been adduced at the hearing and that the deputy sheriff was "the least credible witness," the Appellate Division said it found that the City Manager's "factual findings and conclusions" were supported by substantial evidence.

As to the penalty imposed on the deputy sheriff, dismissal from her position, the Appellate Division said that it found that the penalty of termination was "not excessive."

The court said that a penalty imposed by the appointing authority following a §75 disciplinary hearing must the upheld "unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law," with due consideration given as to "whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

Finally the Appellate Division observed that it was mindful that great leeway must be accorded in matters concerning police discipline because "a higher standard of fitness and character pertains to police officers than to ordinary civil servants" and, inasmuch as strict discipline is essential for law enforcement administration, "the penalty of dismissal has been routinely upheld for officers who have disobeyed direct orders."

Here, said the court, "we cannot say that dismissing petitioner from her position as a deputy sheriff for disobeying a direct order shocks our sense of fairness."

The decision is posted on the Internet at:


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