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