Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, January 15, 2013

Hearsay is admissible in administrative proceedings and, if sufficiently relevant and probative, may constitute substantial evidence

Szczepaniak v City of Rochester2012 NY Slip Op 08896, Appellate Division, Fourth Department
The City of Rochester determined that one of its employees was guilty of the disciplinary charges filed against him and terminating him from his employment. Supreme court dismissed the individual's Article 78 petition challenging his dismissal and the Appellate Division affirmed the lower court’s ruling.
One of the arguments advanced by the individual in his petition was that “the determination is not supported by substantial evidence because the evidence presented was hearsay.“*
The Appellate Division, noting that the hearsay evidence admitted at the administrative hearing consisted of attendance records about individual’s outside employment, ruled that the evidence was relevant and probative on the charges that the individual had worked at that outside employment while he was on sick leave, or other leave from his employment with the City, and receiving certain benefits.
The court explained that hearsay is admissible in administrative proceedings "and if sufficiently relevant and probative may constitute substantial evidence." Accordingly, said the Appellate Division, there is no merit to the individual's contention that the determination is not supported by substantial evidence because the evidence presented was hearsay.
Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division said that it found that the appointing authorities determination as to the employees guilt was “supported by substantial evidence, i.e., "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."
As to the penalty imposed, dismissal, the court said that it concluded that “the penalty of termination from petitioner's employment is not ‘so disproportionate to the offense[s] as to be shocking to one's sense of fairness,’ and thus does not constitute an abuse of discretion as a matter of law,” citing Kelly v Safir, 96 NY2d 32.
* Essentially hearsay evidence is testimony given by an individual who testifies about what he or she has heard from others rather than testifies about that which he or she personally heard, knows or observed concerning a conversation, an event or a situation.
The decision is posted on the Internet at:
Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

Public Sector Employment Law | Permalink


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Posted by: Attorney Online | Jan 16, 2013 2:31:19 AM

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