152 A.D.2d 796 | N.Y. App. Div. | 1989
Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Schenectady County) to review a determination of respondent Schenectady City School District Board of Education which found petitioner guilty of misconduct and terminated his employment.
Petitioner, a utility worker having permanent civil service status in the maintenance department of respondent Schenectady City School District (hereinafter the District), was charged with six instances of employee misconduct in a disciplinary proceeding under Civil Service Law § 75. The six specifications were that (1) petitioner reported 25 minutes late for work on Friday, May 15, 1987, (2) petitioner failed to appear at a work assignment on June 19, 1987, (3) petitioner
After a hearing held March 14, 1988, the Hearing Officer rendered a decision sustaining all but the fifth of the foregoing specifications and, based upon petitioner’s disciplinary history, recommended the sanction of dismissal. Respondent Schenectady City School District Board of Education accepted and adopted the Hearing Officer’s findings and recommendation. Petitioner brought this CPLR article 78 proceeding challenging the determination.
Petitioner’s essential ground for annulment is that virtually all of the charges sustained by the Hearing Officer were supported solely by uncorroborated hearsay and that such proof does not constitute substantial evidence sufficient to justify terminating the employment of a tenured civil servant. We disagree. It is by now settled law that purely hearsay evidence may meet the substantial evidence test if sufficiently relevant and probative (People ex rel. Vega v Smith, 66 NY2d 130, 139). The question is whether the hearsay introduced is " 'the kind of evidence on which responsible persons are accustomed to rely in serious affairs’ ” (supra, at 139, quoting National Labor Relations Bd. v Remington Rand, 94 F2d 862, 873, cert denied 304 US 576), or " 'such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact’ ” (supra, at 139, quoting 300 Gramatan Ave. Assocs. v State Div. of Human Rights, 45 NY2d 176, 180). Unsworn written statements may be sufficient (supra; Matter of Eagle v Paterson, 83 AD2d 837, affd 57 NY2d 831), as well as oral statements (Matter of De Carlo v Perales, 131 AD2d 31, 35). Moreover, no greater burden of proof is imposed in civil service disciplinary proceedings (Matter of Yerry v Ulster County, 128 AD2d 941, 942).
In the instant case, the first specification was proved through the testimony of a District supervising employee as to his personal observations and, hence, was not at all based upon hearsay. The second, third and fourth specifications were
Although no implied evidentiary admission was established from petitioner’s failure to respond to the District’s letters of reprimand concerning his violations of the rules of his department (see, Richardson, Evidence § 223, at 199 [Prince 10th ed]), the failure of petitioner to deny the accusations of his misconduct, although having been invited to do so, lends support to the Hearing Officer’s conclusion that no further inquiry was necessary before accepting the probative value of the hearsay evidence (see, People ex rel. Vega v Smith, supra, at 140). It was also well within the Hearing Officer’s province to disbelieve the testimony of petitioner and his girlfriend that he in fact reported his leaving on June 19, 1987 because of illness, particularly in view of petitioner’s testimonial admission that he falsely reported the reason for being late for work on August 28, 1987 (see, Matter of Eves v Passidomo, 121 AD2d 538, 539).
For the foregoing reasons, the findings of petitioner’s misconduct should not be disturbed. Petitioner’s prior record of similar absences and tardinesses without reporting or seeking permission, for which he was warned and suspended, fully justify the imposition of the sanction of discharge. However, petitioner is correct in contending that the District erred in
Determination modified, without costs, by annulling so much thereof as denied petitioner back pay for the period March 14, 1988 to May 20, 1988; matter remitted to respondents for further proceedings not inconsistent with this court’s decision; and, as so modified, confirmed. Mahoney, P. J., Kane, Yesawich, Jr., Levine and Mercure, JJ., concur.