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Disciplinary Evidence (Part I) - Admissibility/In General

          
     In rejecting petitioner's claim that he ingested marijuana unknowingly, the NYPD Commissioner relied on scientific evidence that inadvertently ingesting marijuana in contaminated food and inhaling secondhand smoke could not cause the high levels of marijuana in appellant's hair samples. The court also rejected a claim that using the radioimmunoassay method of hair testing violated the Fourth Amendment because the use of that method was not authorized by the collective bargaining agreement with the union. Matter of Chiofalo v. Kelly, #1151 (115958/07), 2010 NY Slip Op 00785, 70 AD 3d 423, 893 N.Y.S.2d 552; 2010 N.Y. App. Div. Lexis 735 (1st Dept).
     Second Circuit upholds a NYPD policy that requires that a Breathalyzer test be administered to every officer who, whether on or off duty, causes injury or death as a result of firing his or her firearm. The Breathalyzer program is a "deterrent to officers who may consider carrying their firearms while under the influence of alcohol," and is not an "unexpected intrusion on privacy." Lynch v. City of New York, #08-5250-cv, 589 F.3d 94 (2d Cir. 2009).
     The tape-recorded sworn testimony of a deceased witness may be admitted as evidence in an administrative hearing. N.Y.C. Dept. of Buildings v. Stallone Testing Labs, Index #362/10, New York City Office of Admin. Trials and Hearings (2009).
     In a termination appeal, an excited call to the sheriff’s dept., complaining that her boyfriend, a sheriff’s officer, had violently attacked her and threatened serious harm, is admissible in a hearing. Although hearsay, it qualifies under the spontaneous statement exception. Melkonians v. Los Ang. Co. Civil Serv. Cmsn., #B208046, 174 Cal.App.4th 1159, 2009 Cal. App. Lexis 919 (2nd Dist.).
     Arbitrator orders the reinstatement of a state trooper accused of a failure to notify his superior of exam cheating by other troopers. The trooper testified that he notified his sergeant. Although the sergeant denied this in an affidavit, he did not attend the arbitration hearing and could not be cross-examined. The sergeant’s "testimony would have been essential to rebut anything the grievant said in that regard to the contrary." State of Ohio and State Troopers Assn., Grievance #15-03-20080912- 0132-04-01, 126 LA (BNA) 702 (Feldman, 2009).
     Electronic records: A Justice Dept. Office of Legal Counsel Opinion concludes that "Federal official personnel and civil service retirement records that have been converted from paper to electronic format should be admissible in evidence in federal court under the Business Records Act, 28 U.S.C. § 1732, and should also qualify as ‘public records’ admissible under Rule 1005 of the Federal Rules of Evidence. ... Converting such documents to electronic format should not affect their admissibility under hearsay rules."
     California appeals panel affirms an eight-hour reduction in pay of an officer for failing to inform her supervisors of a conversation in which her husband, also an officer, admitted that he used and stole methamphetamine. The marital communications privilege does not apply to non-criminal administrative investigations and hearings -- citing Pasadena POA. v. Pasadena, 51 Cal.3d 564, 578 (1990) and Lybarger v. Los Angeles, 40 Cal.3d 822, 827, 710 P.2d 329 (1985). Riverside County Sheriff's Dept. v. Zigman, #E043187, 2008 Cal. App. Lexis 2459 (4th Dist.).
     Appellate panel upholds the termination of a corrections officer for threatening a coworker and drug possession. As in the case of a plea of nolo contendere, an arbitrator can consider a plea bargain for accelerated rehabilitation as evidence of her guilt. AFSCME L-1565 v. Dept. of Correction, #AC 28320, 107 Conn. App. 321, 945 A.2d 494, 2008 Conn. App. Lexis 199.
     Arbitrator holds that a captain's conversations with a prostitute, who allegedly had sex with a police officer, and the results of her polygraph examination were inadmissible as hearsay. Hearsay will not be accepted in termination cases, except in most extreme circumstances. City of Oklahoma City and FOP L-123, FMCS Case #060310/54391-7, 123 LA (BNA) 24 (Walker, 2006). [N/R]
     An attack on Breathalyzer evidence was not relevant at a disciplinary hearing because there was independent evidence that the employee had consumed alcohol while on duty. Compton v. Dept. of Justice, #06-3113, 2006 U.S. App. Lexis 25487 (Fed. Cir. 2006). {N/R}
     "Just as it is axiomatic that the testimony of one credible witness is sufficient, it is also axiomatic that the testimony of a police officer is neither entitled to nor afforded any extra credibility. It is a well-settled proposition that a police officer's testimony is equal to that of any other witness and subject to the same credibility concerns. The officer is neither more credible nor less credible simply because he or she is a police officer." Calumet City Police Dept. and Illinois FOP, 122 LA (BNA) 434 (Clauss, 2005). {N/R}
     Rhode Island court overturns the termination of a police officer accused of promotion fraud. The Board improperly allowed into evidence the hearsay statements of two discredited witnesses. Harris v. City of Providence, #05-1247, 2006 R.I. Super. Lexis 42 (2006). [2006 FP Aug]
     Arbitrator, in a private sector grievance, allows into evidence a private investigator's videotape of a worker that was later accused of sick leave abuse. Solutia and Pace Int. Union L-6-0196, 121 LA (BNA) 26, FMCS #04/07871 (Szuter, 2005). {N/R}
     A double hearsay statement was inadmissible in a whistleblower lawsuit. Beasley v. Passaic County, #A-2780-03T3, 377 N.J. Super. 585, 873 A.2d 673, 2005 N.J. Super. Lexis 166, 22 IER Cases (BNA) 1836 ( N.J. App. Div. 2005). {N/R}
     Appeals court sustains termination of a police sergeant for making a false police report and secretly audiotaping his conversation with the chief. The fact that the police chief bore considerable animosity against him was irrelevant and inadmissible at the disciplinary hearing. A police chief's subjective motives in terminating a subordinate are not relevant and have no bearing on any of the issues for determination. Roorda v. City of Arnold, #WD62570, 142 S.W.3d 786 (Mo.App. 2004). {N/R}
     Appeals court holds that a sergeant could testify against officers at a disciplinary hearing, based on what he was told by a citizen. Hearsay evidence is admissible if reliable, and was based on an investigative interview of an eyewitness. Broaden v. Dept. of Police, #2003-CA-1427, 866 So.2d 318, 2004 La. App. Lexis 16 (La. App. 4th Cir. 2004). [2004 FP Jun]
     Supreme Court declines to review a 2-to-1 appellate court holding that that a black male DoD employee, who was fired for poor performance, could not establish satisfactory job performance through the testimony of his coworkers. King v. Rumsfeld, #02-1313, 328 F.3d 145, 2003 U.S. App. Lexis 8694, 91 FEP Cases (BNA) 1537 (4th Cir. 2003); cert den. 2003 U.S. Lexis 9002 (2003). {N/R}
     Wisconsin Supreme Court affirms a civil service decision not to allow introduction of after-acquired proof of additional misconduct. The sergeant was not given prior notice of the charge. Board of Regents, Univ. of Wisconsin v. Wisconsin Personnel Cmsn. (Brenon), #01-1899, 2002 WI 79, 646 N.W.2d 759, 2002 Wisc. Lexis 475 (2002). [2002 FP Nov]
     Arbitrator allows a city to introduce an employee's medical record into evidence. Although "hearsay" is usually inadmissible in a judicial proceeding, AAAA Labor Arbitration Rule 28 permits hearsay evidence in arbitration hearings. Town of Harwich [Mass.] and IBPO L-392, AAA Case #11-309-00999-1, 116 LA (BNA) 1461 (Alleyne, 2001; Rptd. 2002). [N/R]
     The fact that there may have been irregularities in the chain of evidence used in a disciplinary hearing did not invalidate the appellant's termination, absent actions that either "shock the conscience or offend judicial notions of fairness or human dignity." Young v. City of St. Charles, #00-1892, 244 F.3d 623, 2001 U.S. App. Lexis 4552 (8th Cir.). {N/R}
     Defects in chain of custody of a police officer's urine sample violated his right to due process. Guggenheim v. New Orleans Police Dept., 773 So.2d 752, 2000 La. App. Lexis 1836 (La.App.). {N/R}
     Terminated firefighter must offer proof at the civil service hearing that union activities were the reason for disciplinary action; a later court challenge will fail, absent evidence of a hostile motivation. He failed to offer proof that his termination for obesity was inspired by his presidency of the union. Cremeens v. City of Montgomery, #1971571, 2000 Ala. Lexis 406, 164 LRRM (BNA) 3137. [2000 FP 165]
     Appeals court upholds termination of Sheriff's employee for drug violations, even though the criminal charges were dropped and the records was expunged. Civil service cmsn. relied on eyewitness testimony, not expunged records. Bustamante v. Bexar Co. Sheriff's C.S.C., #04-99-00175-CV, 2000 WL 728997, 2000 Tex. App. Lexis 3727. [2000 FP 134]
     Management is not prevented from taking disciplinary action against an officer because the complaining witness withdraws her complaint. Swinton v. Safir, #153, 720 N.E.2d 89, 93 N.Y.2d 758, 1999 N.Y. Lexis 3433. [2000 FP 37]
     Time cards, although hearsay, are admissible as business records. U.S. v. Turner, 189 F.3d 712, 1999 U.S. App. Lexis 18747 (8th Cir.). [2000 FP 21]
     Maryland's highest court allows prison videotape in an officer's termination hearing, as self-authenticating evidence. Dept. Pub. Sfty. v. Cole, 342 Md. 12, 672 A.2d 1115 (1996). [1996 FP 163-4]
     Court allows use of interoffice e-mail messages in a damage suit alleging employee misconduct. Strauss v. Microsoft Corp., 1995 U.S.Dist. Lexis 7433, 68 FEP Cases (BNA) 1577 (S.D.N.Y). [1996 FP 132-3]
     NY appellate court upholds a deputy sheriff's termination where part of the evidence against him was a written memorandum signed by a judge; hearsay is admissible in disciplinary hearings. Grossman v. Kralik, 62 N.Y.S.2d 476 (A.D. 1995). [1996 FP 53-4]
     City could plead ignorance in a civil suit for damages and still prosecute the involved officers in a disciplinary setting. Serio v. Police Bd. Chicago, 655 N.E.2d 1005 (Ill.App. 1995). [1996 FP 68]
     Federal appeals court affirms termination of public employee who recanted his admissions made to IA investigators and fellow employees. The worker allegedly took nude photos of a prostitute in a federal facility, then sold them to an adult magazine. Uske v. U.S. Postal Service, 56 F.3d 1375 (Fed.Cir. 1995). [1996 FP 54]
     Appellate court sustains termination of a NYCPD officer, based on a handwriting expert's testimony, for sending a threat to the Governor and signing another person's name. Mahabir v. Kelly, 627 N.Y.S.2d 346 (A.D. 1995). [1996 FP 38]
     Appellate court affirms a holding that overturned discipline for excessive force. Officer's claim he inadvertently kicked the complainant in the face was believable. Atlanta v. Grier, 456 S.E.2d 751 (Ga.App. 1995). [1996 FP 20-1]
     Photos of burn marks were probably made by a stun gun, but medical evidence could not date when the marks were made. 30-day suspension given a Chicago police officer is reversed by an arbitrator. Chicago and FOP L-7, 33 G.E.R.R. 1434 (1995). {N/R}
     A "no contest" plea to a misdemeanor is inadmissible in Calif. disciplinary hearings (but is admissible if the plea involved a felony). Los Angeles Co. v. Civil Serv. Cmsn., 46 Cal.Rptr.2d 256, 39 Cal.App. 4th 620, 1995 Cal.App. Lexis 1034. {N/R}
     Terminations of officers reversed, where evidence consisted of a report by a police captain of his internal investigation, including his summaries of statements he received and interviews he conducted. None of the statements were under oath, and none of the persons were available for cross-examination. McLean v. Mecklenburg Co., 448 S.E.2d 137 (N.C. 1994). {N/R}
     Immunized, compelled grand jury testimony could be used against an officer in his disciplinary hearing. Denisewich (In re), 643 A.2d 1194 (R.I. 1994). [1995 FP 100]
     Evidence that other officers were disciplined less severely is inadmissible. Chelf v. Civil Serv. Cmsn., 515 N.W.2d 353 (Iowa App. 1994). [1995 FP 53-4]
     Federal court prevents an employer, in a wrongful discharge suit, from introducing evidence the employee committed a theft, where the stated reason for the termination was an "unexcused absence" from work. Plair v. E.J. Brach, 864 F.Supp. 67, 66 FEP Cases (BNA) 370 (N.D.Ill. 1994). [1995 FP 35-6]
     Civil service board could receive hearsay and expert testimony in disciplinary action for vehicular negligence. Davis v. Dept. of Police, 590 So.2d 850 (La.App. 1991). [1993 FP 5]
     Racially derogatory remarks inadvertently broadcasted over the radio were admissible; no privacy violation. Bayges v. SEPTA, #92- 2485, 30 (1491) G.E.R.R. (BNA) 1558 (E.D.Pa. 1992); see also later decision at 887 F.Supp. 108 (1995). [1993 FP 52]
     Missouri appellate court criticizes the use of hearsay evidence in disciplinary trials. Speer v. City of Joplin, 839 S.W.2d 359 (1992). [1993 FP 84]
     Note: A prior case held that a termination may be based exclusively on hearsay evidence. Curry v. St. Louis Co., 773 S.W.2d 499 (Mo.App. 1989). {N/R}
     A "chain of custody" for evidence used in a disciplinary hearing is unnecessary unless the items can be confused or altered. Hawkins v. Marion Corr. Instit., 62 Ohio App.3d 863, 577 N.E. 720 (1990); addn'l appeal denied, 55 Ohio St.3d 706. [1992 FP 131]
     Termination of officer could be based on uncorroborated hearsay. Ayala v. Ward, 565 N.Y.S.2d 114 (A.D. 1991); see also Gelco Builders v. Holtzman, 562 N.Y.S.2d 120 (A.D. 1990). [1992 FP 20]
     Fact that employee previously had excellent performance ratings is no bar to his termination for "poor performance" based on most recent evaluation period. Foy v. City of Chicago, 551 N.E.2d 310 (Ill.App. 1990).
     D.C. Appeals court reinstates finding that police officer knew of his wife's embezzlement activities when he spent large sums from their joint account. Termination upheld. Metro. Police Dept. v. Baker, 564 A.2d 1155 (D.C. App. 1989).
     Georgia Appellate Court argument that a written "operating procedure" of a Sheriff's Dept. was not admissible in the trial of a deputy accused of excessive force; booking videotape also was admissible. Bedley v. State, 374 S.E.2d 841 (Ga. App. 1988).
     Georgia Court upgrades standard for appellate review; civil service disciplinary decisions must be supported by "substantial evidence." Former test of "some" or "slight evidence" rejected. Halaco Engineering Co. v. So. Cen. Regnl. Cmsn., 42 C.A. 3d 52, 720 P.2d 15 (1986); Pacific Maritime Assn. v. Calif. Unempl. Ins. App. Bd., 215 Cal.Rptr. 408, 169 C.A. 3d 568 (1985).
     Use of a concealed beeper to track the whereabouts of an employee suspected of theft, was not unconstitutional. U.S. v. Dowdy, 688 F.Supp. 1477 (D. Colo. 1988).
     Appellate court overturns firing of corrections officer for having sex with a youthful offender, because evidence of prior misconduct was admitted at disciplinary hearing. McGowan v. Illinois Dept. of Corrections, 518 N.E.2d 630 (Ill.App. 1987).
     Courts wrestle over whether employers can offer evidence of employee misconduct, discovered after disciplinary action has been initiated, at the disciplinary hearing. Reece v. City of Columbus, 498 N.E.2d 1276 (Ind.App. 1986); Matter of Wenderwicz, 195 N.J. Super. 126, 478 A.2d 428 (App. 1984); Linton v. Bossier City Fire & Police Bd., 428 So.2d 515 (La. App. 1983).
     Corroboration of an accomplice's testimony not required in disciplinary cases, as would be true in criminal trials. Berenhaus v. Ward, 522 N.Y.S.2d 478, 70 N.Y.2d 436, 517 N.E.2d 193 (1987).
     Officer's psychiatric report was not confidential; his superiors could review it to determine if it justified his termination. David v. Christian, 520 N.Y.S.2d 826, 134 A.D. 2d 349 (1987).
     Disciplinary hearing board could exclude evidence of drug use and alleged psychological problems of complaining citizen. Gamble v. Hoffman, 732 S.W.2d 890 (Mo. 1987).
     Dept. need not prove which kind of cocaine was ingested by police officer to sustain his dismissal, nor did dept. have to prove that the officer "knowingly" ingested the drug. Schlobohm v. Rice, 510 N.E.2d 43, 157 Ill.App.3d 90 (1987).
     Testimony from accomplice requires corroboration even though disciplinary proceedings are civil and administrative in nature. Farry v. Ward, 512 N.Y.S.2d 39 (A.D. 1987).
     Prior instance of disciplinary action, from which no appeal was taken, may be considered in aggravating punishment on new charge; employee not entitled to relitigate prior incident. Reece v. City of Columbus, 498 N.E.2d 1276 (Ind.App. 1986).
     Chiefs cannot order subordinates to turn over items that would incriminate them in a criminal case, even if production is sought solely for disciplinary purposes. Montgomery County v. Robinson, #85-1351, Unrep. (Md. Sp. App. 1986) -- FP File Ref. #5031.
     Proof that another employee was not terminated was inadmissible evidence to mitigate punishment. Johnson v. Civil Service Cmsn. of Clinton, 352 N.W.2d 252 (Iowa 1984).
     Proof that accused had been warned about same conduct admissible to aggravate punishment. Matter of Wenderwicz, 195 N.J. Super. 126, 478 A.2d 428, 1984 N.J. Super. Lexis 1049 (A.D. 1984).
     Trial board could not admit employee's statements made to department physician, violated patient privilege. Jones v. Sayad, 654 S.W.2d 93 (Mo.App. 1983).
     Acquittal of criminal charges no bar to disciplinary action. City of Gadsden v. Head, 429 So.2d 1005 (Ala. 1983).
     Mere presence of fluorescein powder on hands of accused will not support a finding of guilt in payoff scandal. Edmonds v. McNeal, 596 S.W.2d 403 (Mo. 1980).
     Appellate court upholds hearsay evidence, rules employees need not pay costs of transcript on appeal, and personnel board can aggravate punishment suggested by hearing examiner. Zoutendyk v. Wash. State Patrol, 616 P.2d 674 (Wash. App. 1980).


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