New York State Governor Cuomo proposes new legislation addressing public corruption crimes

New York State Governor Cuomo proposes new legislation addressing public corruption crimes

The new Act, designated the Public Trust Act, would establish a new class of public corruption crimes, tough new penalties on offenders, require public officials to report bribery

Calling the current State laws defining public corruption in New York obsolete and far less effective than federal statutes for prosecuting individuals who commit public corruption crimes, the Governor said that the Public Trust Act would establish a new class of public corruption crimes and expand the current definitions of public corruption offenses to enable prosecutors to hold accountable those who violate public trust. 

The Governor said that the proposed new law would also impose tougher jail sentences on individuals that misuse public funds and permanently bar those convicted of public corruption offenses from holding any elected or civil office, lobbying, contracting, receiving state funding, or doing business with the state, directly or through an organization.

The proposed new class of Public Corruption Crimes would include the following crimes: bribing a public servant, corrupting the government, and failing to report a bribe or a bribe attempt.

I. New Crimes for Violating Public Trust

Bribery of a Public Servant: The proposed legislation would expand the current state bribery statute to give prosecutors additional tools to convict offenders. Under current state law, a prosecutor has to prove that there was a corrupt agreement or understanding between the person paying the bribe and the person receiving the bribe. This is not required under federal law and is an unduly heavy burden. Under the new Public Servant Bribery provision, a prosecutor would only have to prove that the person paying the bribe “intended” to influence the public official or that the person receiving it intended to be so influenced, bringing state law in line with the federal standard. Bribery penalties would be increased, lowering the threshold for a Class C felony from $10,000 to $5,000, the amount of money used to bribe, and to $10,000 and above for a Class B felony.

Corrupting the Government: The proposed legislation would hold accountable anyone – whether or not they are a public official – who is found to have engaged in defrauding the government. The proposed legislation also enhances penalties for all offenders convicted of defrauding the government through the crime of Corrupting the Government. 

Under the proposed new law, anybody, whether acting in concert with a public servant or not, who engages in a course of conduct to defraud a state or local government would be guilty of a crime ranging from the fourth degree (class E felony) to the first degree (class B felony), depending on the amount defrauded.

Failure to Report Public Corruption: The proposed legislation would for the first time make it a misdemeanor for any public official or employee to fail to report bribery.

II. Tough New Penalties for Misuse of Taxpayer Dollars

New Penalties for Public Corruption: The proposed legislation would create new penalties for offenses such as any kind of fraud, theft, or money laundering offense involving state or local government property. This means an offender would face a higher penalty if the act was committed against the government. The sentence would be one level higher than for the underlying offense. For example, if the underlying offense (e.g. larceny) was a class D felony, then the involvement of state or local government property would increase the sentence to the class C felony. The specific existing crimes affected are those defined by the following provisions of the Penal Law:

· petit larceny
· grand larceny
· unauthorized use of a computer
· unauthorized use of a vehicle
· money laundering

Increased Penalties for Official Misconduct: Under current law, Official Misconduct is a misdemeanor. The proposed legislation creates three new degrees of Official Misconduct: a Class E felony (maximum penalty 4 years), Class D felony (maximum penalty 7 years) and Class C felony (maximum penalty 15 years).

III. Lifetime Ban from Government

The new class of felony public corruption crimes would impose additional penalties, apart from jail sentences and criminal fines, including:

· Permanently barring all those convicted of public corruption felonies from holding any elected or civil office, serving as a registered lobbyist, or doing business with the state, including through any organization they run

· Barring individuals from bidding on or obtaining state contracts

· Barring individuals from receiving numerous tax credits

· Prohibiting individuals from serving as a Medicaid, employment insurance or workers’ compensation provider

· Gives Judges the option of requiring payment of up to three times the amount of the profit or gain made from an illegal transaction

· Creating an automatic set off for any fines or other penalties imposed against any State tax refund

IV. Fixing the Statute of Limitations: 

Under the proposed legislation, the same tolling or suspension of the statute of limitations of five years after leaving office will apply to both public servants and those persons acting in concert with a public servant to commit misconduct in public office. Currently, the statute of limitations for public officials is in effect for five years after they have left office, but not those acting in concert who are not themselves public officials.

V. Additional Tools for Prosecutors: 

For the first time, a witness who testifies before a grand jury investigating fraud on the government or official misconduct will receive only “use” immunity, not “transactional” immunity for statements that witness may give under oath. Under the proposed legislation a witness, who may or may not also be part of the criminal transaction under investigation, may still be prosecuted for his or her role if the prosecutor develops evidence other than, and independent of, the evidence given by the witness. This important tool in fighting crime conforms New York practice with federal practice in this area.

Charges relying on the “criminal” exception to the 18-month statute of limitations to file §75 disciplinary charges must describe the acts or omission that constitute a crime

Charges relying on the “criminal” exception to the 18-month statute of limitations to file §75 disciplinary charges must describe the acts or omission that constitute a crime

Petitioner, an employee of the Albany County Sheriff's Office, was served with a notice of intent to discipline and a notice of charges pursuant to Civil Service Law §75. Ultimately he was found guilty of the charges and terminated from his position.

The alleged misconduct: Violation of the Sheriff's Office General Order 29-SD-93 in that Petitioner [1] used “a concealed recording device to make an audio recording of a meeting held by a former Undersheriff which other employees attended and [2] Petitioner transfer and disclosure of the recording to others.

Addressing Petitioner’s CPLR Article 78 petition seeking dismissal of the charges as untimely, Supreme Court found that Charge 2 was, indeed, untimely, having be served more than 18 months after the alleged event occurred.

The court, however, founds that Charge I alleged conduct which, if proven in a criminal proceeding, constituted a crime – Official Misconduct* – which rendered the 18-month statute of limitations set out in Civil Service Law §75(4) inapplicable.

Petitioner appealed from that part of the Supreme Court’s order that held that Charge 1 was timely. The Appellate Division agreed with Petitioner's contention that Charge 1 was barred by the statute of limitations set forth in Civil Service Law §75 (4) as the disciplinary action was initiated more than 18 months after the date on which Petitioner was alleged to have used a concealed recording device at the meeting with the Undersheriff.

The court, noting that Charge 1 alleged that Petitioner had violated Subsection KK of the Sheriff's order relating to recording devices, said that Subsection KK provides that "[n]o employee shall install or activate any microphone or any technical or mechanical device or system capable of recording or overhearing conversations or telephone messages without authorization from the Sheriff or Undersheriff."

Charge 1, in pertinent part, alleged that Petitioner  “intentionally concealed a recording device on [his] person and recorded the contents of this meeting without authorization."  The Appellate Division said that it did not find that such misconduct “would, if proved, constitute the crime of official misconduct” within the meaning of Penal Law §195.00([1), or any other crime. The court explained that in making its threshold determination concerning the timeliness of Charge 1 based on the exception for criminal misconduct set out in §75.4 of the Civil Service Law, only the allegations of misconduct "complained of and described in the charges" may be considered.

The Appellate Division observed that, as relevant here, a public servant is guilty of official misconduct when, with intent to obtain a benefit, the employee "commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions" and such act must be done "knowing that such act is unauthorized."

In this instance the misconduct "complained of and described in the charges" did not, in the court’s view, allege that Petitioner acted with the intent to gain a benefit, an essential element required for an official misconduct conviction. As the conduct described in Charge 1 would not, if proven in court, constitute a crime, the Appellate Division concluded that the 18-month statute of limitations governs and Charge 1 should have been dismissed as untimely.

* Penal Law §195.00 [1]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02309.htm

GML §207-c benefits to be discontinued if individual receiving such benefits is offered and refuses to accept a light duty assignment for which he or she is qualified

GML §207-c benefits to be discontinued if individual receiving such benefits is offered and refuses to accept a light duty assignment for which he or she is qualified 
Howell v County of Albany, 2013 NY Slip Op 02308, Appellate Division, Third Department

A petition submitted to Supreme Court a review of a determination by the Albany County Sheriff to suspend a correction officer’s General Municipal Law §207-c benefits was transferred to the Appellate Division.*

Petitioner was employed as a correction officer by Albany County Sheriff's Office and as a result of a work-connected incident, was receiving General Municipal Law §207-c benefits. Petitioner, however, subsequently rejected the Sheriff Department’s offer of a light duty assignment and refused to return to work.

A hearing was conducted to determine the extent of Petitioner’s disability. The Hearing Officer recommended that Petitioner be found capable of performing light duty and the Department adopted the recommendation and ordered Petitioner to report for a light duty assignment or face suspension of his GML §207-c benefits.**The Petition failed to report for light duty as directed and the Department suspended his GML §207-c benefits.

The Appellate Division affirmed the Department’s determination, rejecting Petitioner’s claim that the Sheriff's determination was made in violation of his due process rights because the Hearing Officer refused to consider proof that he suffered from posttraumatic stress disorder and, in addition, had considered evidence “outside the record.”

The court explained that "The right of a disabled officer to receive section 207-c disability payments constitutes 'a property interest giving rise to procedural due process protection, under the Fourteenth Amendment, before those payments are terminated.'"

Noting that the GML §207-c does not provide a procedural framework for making such determinations, the Appellate Division said that municipalities are free to establish their own procedures, consistent with or exceeding what is required by due process, through collective bargaining. The court also noted that "due process does not require a hearing . . . until the employee has raised a genuine dispute on [the] operative facts", citing Davis v Westchester County, 42 AD3 79 (appeal dismissed 9 NY3d 953)

.

The Appellate Division found the Petitioner had been provide with administrative due process in that when he objected to the Sheriff’s light duty he was provided with a predetermination hearing in which he was able to present his own witnesses and cross-examine the Department’s witnesses.

The court said that in its view the Hearing Officer did not violate Petitioner's procedural due process rights by refusing to consider evidence that he suffered from posttraumatic stress disorder as “there is no indication in the record before us that petitioner put that diagnosis in issue — i.e., he raised no genuine dispute with respect to that diagnosis, as opposed to his established claims — prior to offering his expert's testimony at the hearing“

The court also rejected Petitioner's claim that the Hearing Officer considered evidence “outside the record” by noting that, in the context of his assessment of the credibility of Petitioner's witnesses, “his observations of Petitioner's demeanor while leaving the hearings.”

* Although the Appellate Division noted that the proceeding had been “improperly transferred” to it because the petition does not raise a question of substantial evidence; it, nonetheless, ruled that it would “retain jurisdiction in the interest of judicial economy.”

** GML §207-c.3, in pertinent part, provides that an otherwise eligible individual “unable to perform his regular duties as a result of such injury or sickness but is able … to perform specified types of light police duty, payment of the full amount of regular salary or wages, as provided by subdivision one of this section, shall be discontinued with respect to such policeman if he shall refuse to perform such light police duty if the same is available and offered to him .…”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_02308.htm

An adverse disciplinary hearing determination must be supported by substantial evidence

An adverse disciplinary hearing determination must be supported by substantial evidence

The appointing authority adopted in part and rejected in part the recommendation of a Civil Service Law §75 hearing officer that found the employee guilty of misconduct and/or incompetence. The penalty imposed: termination.

Supreme Court rejected the former employee’s Article 78 petition seeking to vacate the appointing authority’s decision.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that a judicial review of administrative determinations in employee disciplinary cases made after a hearing under Civil Service Law §75 is limited to a consideration of whether the determination was supported by substantial evidence.*  Here, said the court, there was substantial evidence in the record to support the determination that the individual was guilty of misconduct

As to the penalty imposed but the appointing authority, dismissal, the Appellate Division, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, said that u under the circumstances presented the termination of the individual's employment “was not so disproportionate to the offense committed as to be shocking to one's sense of fairness.”

* In contrast, in Christopher v Phillips, 160 A.D.2d 1165, motion to appeal denied, 76 N.Y.2d 706, the court ruled that “if a hearing is not required by law, the substantial evidence standard of review does not apply [and] the appropriate standard for the purpose of judicial review [in such a situation] is whether the determination is arbitrary or capricious.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02247.htm

Using hearsay evidence in a disciplinary hearing
273 A.D.2d 103, motion for leave to appeal denied, 95 N.Y.2d 766

A New York City police officer was terminated from his position after being found guilty of having "assaulted and caused physical injuries” to two individuals.

The officer appealed, contending that the Commissioner's determination was not supported by substantial evidence because it was based on hearsay. The Appellate Division disagreed, holding that "[t]he hearsay statements of the complainants were sufficiently probative to constitute substantial evidence."

According to the decision "[h]earsay may constitute substantial evidence where, as here, it is sufficiently reliable and probative on the issues to be determined."

This, in turn, depends on the credibility of the witnesses. The issue of the credibility of the witnesses at the officer's departmental disciplinary hearing, said the court, "was a matter to be assessed by the Deputy Commissioner who presided at the trial.”

Accordingly, said the court, determinations concerning the credibility of witnesses "is largely beyond our power of review.”

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of ending April 7, 2013 [Click on the caption to access the full report]

DiNapoli: Audit Links Six Downstate Dentists to $2.3 Million Medicaid Fraud

New York State Comptroller Thomas P. DiNapoli released his final auditThursday of a fraudulent Brooklyn dental practice after a joint investigation with Attorney General Eric T. Schneiderman resulted in a one–to–three–year sentence plus nearly $700,000 in restitution from owner Lawrence J. Bruckner.

A.G. Schneiderman And Comptroller Dinapoli Announce Prison Sentence For Brooklyn Dentist Who Defrauded Medicaid

Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli Thursday announced the sentencing of Lawrence J. Bruckner, a Brooklyn dentist on charges he defrauded the Medicaid program by unlawfully paying recruiters to solicit homeless Medicaid patients with cash and billing taxpayers under his son’s name for services the son never provided. Bruckner failed to pay taxes on payments he received from other dentists who worked at his clinics. He has paid nearly $700,000 in restitution and today received a state prison term of 1 to 3 years as a result of this joint investigation by the offices of the state Attorney General and Comptroller.

DiNapoli Releases Bond Calendar for Second Quarter

New York State Comptroller Thomas P. DiNapoli Tuesday announced a tentative schedule for the planned public sale of obligations for the state, New York City, and their major public authorities during the second quarter of 2013.

Arbitration award remanded “for the imposition of an appropriate lesser penalty” based on the court’s finding that employee was not guilty of one of the Specifications of the Charges filed against her

Arbitration award remanded “for the imposition of an appropriate lesser penalty” following the court’s finding that employee was not guilty of one of the Specifications of the Charges filed against her

Specification A-1 of the charges preferred against a tenured New York City school  teacher by the New York Department of Education [DOE] alleged that she had engaged in the scheme to avoid payment of non-resident tuition by enrolling her granddaughter in the school at which she taught. The arbitrator found the school teacher guilty of that Specification, among others, and imposed the penalty of dismissal.

Supreme Court confirmed the arbitration award but on appeal the Appellate Division unanimously vacated the arbitrator’s finding that the teacher was guilt of Specification 1-A-1 of the charges. Accordingly, the Court vacated the penalty of termination and remanded the matter for the imposition of an appropriate penalty.

According to the decision, DOE had conceded at the hearing that teacher's granddaughter was entitled to a tuition-free education in New York City public schools and the hearing officer made no finding that the child was not a City resident. Further, said the Appellate Division, the record did not establish that the child was not a City resident.

Thus, said the court, there was no rational basis upon which to conclude that teacher had engaged in a scheme with the purpose of defrauding DOE out of non-resident tuition.

On the other hand, the court noted that the teacher conceded, and there was substantial evidence in the record to support a finding of guilt with respect to Specification 1-B of the Charges filed against her -- that she acted in concert to file a false instrument.

Specification 1-B alleged that the teacher had engaged in a scheme to use a school aide's address to enroll her granddaughter in the school at which she taught, and that she improperly obtained the school's services (Specification 1-A-2), as the child should not have been enrolled in that school.

The Appellate Division remanded the matter “for the imposition of an appropriate lesser penalty.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02333.htm

Employee’s rude conduct did not rise to the level of constituting a “physical altercation” with another employee

Employee’s rude conduct did not rise to the level of constituting a “physical altercation” with another employee

Decisions of the NYC Office of Administrative Trials and Hearings, Case 12-2095

The Department of Correction charged a correction officer with fighting with another officer, using profane language, leaving her post, and bringing an unauthorized bag near her post.

OATH Administrative Law Judge Kara J. Miller found that the Department proved all of the charges except the claim that officer engaged in a physical altercation with another officer.

The ALJ decided that the testimony at the disciplinary hearing showed that, at most, the accused officer may have pushed past the other officer rudely and brushed against her. Judge Miller did not find this sufficient to constitute misconduct.

Accordingly, she recommended a penalty of a 15-day suspension with credit for time served.   

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-2095.pdf

Government Information Networks and Technology lecture to be held on April 5, 2013

Government Information  Networks and Technology lecture to be held on April 5, 2013 

The Government Law Center and the Albany Law Journal of Science & Technology announced that a Symposium focusing on "Government/Information/Networks/Security" will be held at the Albany Law School in the DAMC Room at 1:00 p.m. on April 5, 2013.   

Experts from around the country will convene at Albany Law School to discuss issues of cybersecurity, freedom of information law, and other topics related to computer networks and information security.

The symposium is free and open to the public. Registration is encouraged. 

For more information, contact 518-472-5855 or mkernan@albanylaw.edu or go to http://www.albanylaw.edu/cybersecurity.   

A reception with the panelists will immediately follow the program.

The Triborough Doctrine yields to an amendment to a law applicable to a provision in an expired collective bargaining agreement if the Legislature did not specifically direct otherwise

The Triborough Doctrine yields to an amendment to a law applicable to a provision in an expired collective bargaining agreement if the Legislature did not specifically direct otherwise
City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, 2013 NY Slip Op 02162, Court of Appeals*

Was the phrase "in effect" as used in Article 22, §8 of the Retirement and Social Security Law sufficient to trigger the Triborough Doctrine preserve a provision set out a collective bargaining agreement [CBA] that had expired and not been replaced by a successor agreement.

The City of Yonkers and the Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO, had periodically extended a CBA dated July 1, 2002 by “stipulation.”. The last such stipulation extended the agreement through June 30, 2009. The genesis of this litigation was a provision in the CBA whereby the City agreed to offer its firefighters the option of enrolling in one of two retirement plans, and agreed that it would bear "the complete cost" of contributions, "pursuant to State law."

In 2009, however, Legislature amended the Retirement and Social Security Law, effective in January 2010, requiring new members of the New York State and Local Police and Fire Retirement System to enroll in a new Retirement Tier, Tier VI. Tier VI required its members to contribute 3% of their salaries toward their retirement allowance.

The amendment set out a “narrow exception” to this 3% contribution requirement.

"Notwithstanding any provision of law to the contrary, nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan open to him or her pursuant to a collectively negotiated agreement with any state or local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however, that any such eligibility shall not apply upon termination of such agreement for employees otherwise subject to the provisions of article twenty-two of the retirement and social security law" [emphasis in the opinion]..

The City, citing the June 30, 2009 termination date of the CBA, required firefighters who were hired after that date to enroll in Tier VI and to contribute 3% of their wages towards their retirement benefits. In response, the Union filed an improper practice charge with the New York State Public Employment Relations Board (PERB), alleging that the City had erred in failing to apply the CBA to firefighters hired by the City after the CBA's termination date.

The Union, relying on the exception contained in Article 22, §8 of the Retirement and Social Security Law, as well as New York Civil Service Law §209-a (1) (e), which codified the Public Employment Relations Board’s (PERB) so-called Triborough Doctrine,** filed an improper practice charge with PERB contending that the City had failed to apply the retirement provision in the now expired CAB as required by §209-a (1) (e) of the Civil Service Law.

When PERB referred the matter to arbitration, the City commenced a CPLR Article 75 proceeding seeking a permanent stay of arbitration on the ground that arbitration is barred by Civil Service Law §201(4) and Retirement and Social Security Law §470.

Although Supreme Court rejected this argument and dismissed the City’s petition, the Appellate Division reversed the lower courts ruling, holding that the statutes cited by the City “are a bar to arbitration.” The Court explained that "the CBA, which terminated by its own terms in June 2009, was no longer 'in effect' at the time of the effective date of Article 22 of the Retirement and Social Security Law," with the result that "the exception set forth in §8 of that Article is inapplicable."

The Court of Appeals affirmed the Appellate Division’s ruling.

The court said that the Triborough Doctrine, upon which the Union relies, had as its purpose "to preserve the status quo in situations where a CBA between a public employer and its employees has expired and a new one has yet to be agreed upon."

As no successor CBA was negotiated between the parties in the present case, the Triborough Law would apply and the CBA's terms would be continued, unless contradicted by statute. Significantly that part of the CBA that required non-contributory plans is rendered unlawful by Article 22 of the Retirement and Social Security Law, which prohibits such plans, unless the §8 exception is applicable in this instance.

The Court of Appeals rejected the Union’s argument that the §8 exception applies because the Triborough Law extends the terms and conditions set out in CBAs that have expired, holding that “This was not the Legislature's intent. If the Legislature had intended to invoke the Triborough doctrine, it would certainly have made that explicit.”

Rather, said the court, “the Legislature, having set forth the §8 exception for CBAs that are "in effect," expressly states that eligibility to join a CBA's retirement plan "shall not apply upon termination of such agreement." This language, the Court of Appeals concluded, “makes clear that the Legislature did not intend to apply the exception to agreements that had expired and could only be deemed to continue through the Triborough Law.”

* See, also, City of Oswego v Oswego City Firefighters Assn., Local 2707; 2013 NY Slip Op 02163; Court of Appeals, posted on the Internet at:  http://www.nycourts.gov/reporter/3dseries/2013/2013_02163.htm

** See 5 PERB 3037; 5 PERB  4505.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02162.htm

Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request

Courts are to determine the appropriate balance between personal privacy and public interests in considering the appeal of a denial of a Freedom of Information [FOIL] request

Thomas v New York City Dept. of Educ., 2013 NY Slip Op 01026, Appellate Division, First Department

Noting that the Legislature declared in enacting Public Officers Law §84, "[t]he people's right to know the process of governmental decision-making and to review the documents and statistics leading to determinations is basic to our society and that access to such information 'should not be thwarted by shrouding it with the cloak of secrecy or confidentiality,'" the Appellate Division rejected the New York City Department of Education General Counsel’s denial of Michael P. Thomas’ administrative appeal challenging the refusal of the Central Record Access Officer [CRAO] to provide him with records demanded in his FOIL request.

The General Counsel had concluded that CRAO's determination denying Thomas’ request fell "well within the bounds" of the “Committee on Open Government's published advisory opinions denying FOIL requests in the context of unsubstantiated complaints, and that redaction of identifying details would not protect the personal privacy of the subject individuals” because Thomas had filed the underlying complaint and therefore knew the identity of the persons even were their names redacted.

The Appellate Division disagreed, holding that under FOIL government records are presumptively available to the public unless they are statutorily exempted by Public Officers Law §87(2) and "Those exemptions are to be narrowly construed, with the burden resting on the agency to demonstrate that the requested material indeed qualifies for exemption" citing Hanig v State of N.Y. Dept. of Motor Vehicles. 79 NY2d 106.

Finding that Thomas’ complaint pertained to certain administrators' performance of their official duties when applying for and using federal funds, the Appellate Division remanded the matter to the lower court “for an in camera inspection of the documents to determine if redaction could strike an appropriate balance between personal privacy and public interests and which material could be properly disclosed.”

In addition, the Appellate Division directed the lower court to determine whether portions of the documents may be exempt from disclosure as intra- or inter-agency records that are not statistical or factual data under Public Officers Law §87[2][g].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01026.htm

Was the decision supported by substantial evidence is the judicial standard of review of a decision made after an administrative hearing required by law

Was the decision supported by substantial evidence is the judicial standard of review of a decision made after an administrative hearing required by law

The Westchester County Commissioner of the Department of Environmental Facilities adopted the report and recommendation of a hearing officer, made after a hearing pursuant to Civil Service Law §75, finding the individual guilty of certain disciplinary charges, and terminated the individual's employment.

The Appellate Division sustained the Commissioner’s decision, explaining that “The standard of review of an administrative determination ‘made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law’ is whether the determination is supported by substantial evidence.”

Finding that substantial evidence in the record supported the determination that the individual was guilty of the disciplinary charges, the court said that in this instance the penalty imposed, termination, was not so disproportionate to the offense as to be shocking to one's sense of fairness.

In contrast, in Christopher v Phillips, 160 A.D.2d 1165, motion to appeal denied, 76 N.Y.2d 706, the Appellate Division, Third Department, decided a case in which the due process implications of a “non-mandatory” disciplinary hearing were considered.

In Christopher the court ruled that “if a hearing is not required by law, the substantial evidence standard of review does not apply....” Instead, said the Appellate Division, “the appropriate standard for the purpose of judicial review [in such a situation] is whether the determination is arbitrary or capricious.” The fact that a hearing was held even when not required by law does not alter the applicability of that standard.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02071.htm