Use of hearsay evidence in an administrative disciplinary action

Use of hearsay evidence in an administrative disciplinary action

Does hearsay evidence constitute “adequate evidence” for the purposes of sustaining disciplinary charges? In this action the Appellate Division found that it did.

Hearsay evidence, said the court, can be the basis of an administrative determination and, “if sufficiently probative, it alone may constitute substantial evidence," citing Matter of Café La China Corp. v New York State Liq. Auth., 43 AD3d 280, quoting Matter of Gray v Adduci, 73 NY2d 741. According, said the court, a hearing officer could base his or her finding the individual guilty of the charges on such hearsay evidence.

The standard applied by the Appellate Division: Education Law § 3020-a (5) provides that a court's review of an application to vacate or modify the decision of a hearing officer is limited to the grounds set forth in CPLR 7511, the provision pertaining to review of arbitrators' awards. It is now established, however, that, because §3020-a hearings are compulsory, the hearing officer's "`determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78.'"

However, in this instance, although the hearing officer’s finding that the employee was guilty, the Appellate Division ruled that the penalty imposed, termination, had to be vacated and the matter remanded to a different hearing officer for the imposition of the penalty to be imposed “on the basis of the administrative record of the hearing.”

The court said that “It is a fundamental principle of due process that ‘`no person may lose substantial rights because of wrongdoing shown by the evidence but not charged, [and where that principle is violated,] prejudice will be presumed.`"

Accordingly, said the Appellate Division, the Hearing Officer's decision imposing the penalty of termination cannot stand, because it appears to be based, in significant part, on evidence of wrongdoing that was not charged.

The decision is posted on the Internet at: