November 3, 2021

Only evidence admitted at the hearing may be considered by hearing officer, the appointing authority and the courts

A probation officer [Plaintiff] was involved in a domestic incident with his then-girlfriend at their shared residence. This resulted in Plaintiff's arrest. A year later Plaintiff pleaded guilty to a single violation of harassment in the second degree and he was  sentenced to a conditional discharge.

Two days after the incident, however, and one day after Plaintiff's arrest, the appointing authority [Respondent] initiated disciplinary proceeding against Plaintiff pursuant to Civil Service Law §75, alleging misconduct as evidenced by the Respondent's arrest.

A Hearing Officer issued a report finding Plaintiff guilty of all but one specification set out in one of the charges, and recommended the Respondent impose the penalty of termination. Respondent adopted the Hearing Officer's findings and terminated Plaintiff's employment.

Plaintiff then commenced a CPLR Article 78 proceeding, contending that the charges were facially insufficient, Respondent's determination was not supported by substantial evidence and the penalty of termination was shocking to one's sense of fairness.

Supreme Court found that the charges were facially sufficient and, concluding that the remaining arguments raised questions of substantial evidence, transferred the matter to Appellant Division pursuant to CPLR §7804 (g).

The Appellate Division remanded the matter to Supreme Court explaining:

1. The administrative body or officer whose decision is under review is required to file with Supreme Court "a certified transcript of the record of the proceedings under consideration," and that court "may order the body or officer to supply any defect or omission in the . . . transcript" (CPLR 7804 [e]).

2. Where, as here, the substantial evidence issue is raised, Supreme Court "shall first dispose of such other objections as could terminate the proceeding . . . without reaching the substantial evidence issue." (CPLR 7804 [g]).

3. When a CPLR Article 78 proceeding comes before the Appellate Division, it "shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding, citing CPLR §7804 [g]).

Here, Plaintiff's petition asserted that the Hearing Officer and Respondent improperly considered documents that were neither offered nor accepted as evidence at the hearing. Accordingly, said the court, Supreme Court should have addressed what evidence was properly in the record on review prior to transferring the substantial evidence issue to the Appellate Division.

The Appellate Division then withheld decision and remit the matter to Supreme Court "to settle the record by determining which documents were admitted in evidence before the Hearing Officer," as only evidence admitted at the hearing may be considered by hearing officer, the Respondent and the courts.

Click HERE to access the Appellate Division's opinion.

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