Using hearsay evidence in a disciplinary hearing

Using hearsay evidence in a disciplinary hearing
Saunders v City of New York, App. Div., First Dept., 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."

Barring a former employee from property

Barring a former employee from property
Toussaint v Local 100, TWU, CA2, U.S. App. LEXIS 16257

May an employer prohibit an individual it has dismissed from entering its property? The Second Circuit Court of Appeals ruled the employer may prohibit such an individual from entering its non-public areas.

A Transportation Workers Union representative had been dismissed from his position with the New York City Transit Authority [NYCTA]. NYCTA then banned the representative from the non-public areas of its property. The representative sued, contending that this action by NYCTA violated his First Amendment rights.

The Circuit Court affirmed a federal district court's dismissal of the Union representative’s petition. The lower court had determined that he "failed to show a likelihood of success on the merits" because:

1. He did not demonstrate that he was excluded from non-public areas because the Transit Authority's motivation was to impair the exercise of his First Amendment freedoms or;

2. The Transit Authority's rule barring discharged employees from non-public areas lacked a reasonable basis.

The representative also attempted to obtain a stay of arbitration, claiming that NYCTA and Local 100 went forward with his arbitration "without allowing him to participate in selecting a neutral arbitrator to chair the arbitration panel." The Circuit Court of Appeals rejected this representation as moot "because the arbitration [had] proceeded to conclusion."

Employee exonerated of alleged off-duty misconduct

Employee exonerated of alleged off-duty misconduct

NYC Department of Corrections v Gayle, OATH Index #105/12

OATH Administrative Law Judge John B. Spooner recommended dismissal of a charge that a correction officer had caused more than $250 worth of damage to her former landlord’s property.

The landlord’s testimony that he saw the correction officer hitting the bathroom walls with a sledgehammer was uncorroborated and contradicted in part by evidence that the landlord himself had damaged the apartment.

The correction officer’s testimony that she had moved out of the apartment one month before the damage was incurred following alleged “improper actions by the landlord,” was corroborated by her sister’s testimony, date-stamped photographs showing the apartment in disarray, and the landlord’s admission that he had piled bolts of fabric inside the correction officer’s apartment and removed light bulbs because he was frustrated by her failure to pay rent and abrupt departure from the apartment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1051.pdf

Payroll deductions

Payroll deductions
Westchester County Correction Officers Benevolent Association, 33 PERB 3025

Although a "letter ruling" by the Internal Revenue Service advised the employer that it had the discretion to withhold income tax from the wages of individuals on workers' compensation leave or receiving benefit pursuant to Section 207-c of the General Municipal Law bi-weekly and reimburse the employee for such deductions annually or elect not to make such deductions, PERB ruled that it was an improper practice for the employer to change its procedure from not making such deductions to making bi-weekly deductions without first negotiating the change with the employee organization even where the claim for such benefits was controverted by the employer since the exercise of discretion is generally subject to a duty to bargain.