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Appointing authority may substitute its judgment for that of the hearing panel if supported by substantial evidence

Appointing authority may substitute its judgment for that of the hearing panel if supported by substantial evidence
Matter of Chiofalo v Kelly, 2010 NY Slip Op 00785, decided on February 4, 2010, Appellate Division, First Department

New York City Police Commissioner Raymond W. Kelly terminated Anthony Chiofalo, a detective with the New York City Police Department after Chiofalo was found guilty of testing positive for marijuana using the radioimmunoassay method of hair testing.

The Appellate Division noted that in this instance the Commissioner substituted his judgment for that of the assistant deputy commissioner of trials but ruled that the Commissioner ?was entitled? to do so, including substituting his judgment for those of the hearing panel on matters of credibility, as the Commissioner?s judgment was supported by substantial evidence.

Commissioner Kelly rejected Chiofalo?s claim the he had tested positive for marijuana as the result of his ?inadvertently ingesting marijuana in contaminated food and inhaling secondhand smoke.? The court note that the Police Department's scientific evidence indicated that inadvertently ingesting marijuana in contaminated food and inhaling secondhand smoke could not cause the high levels of marijuana Chiolalo?s hair samples.

Although Chiolalo claimed that using the radioimmunoassay method of hair testing violated his Fourth Amendment right against unreasonable search and seizure because the use of that method was not authorized by the Police Department's collective bargaining agreement with his union, the Appellate Division pointed out that the Court of Appeals recently held that the Commissioner could choose the method of drug testing and that the choice of the method of testing was not subject to collective bargaining, citing Matter of City of New York v Patrolmen's Benevolent Assn. of City of N.Y., Inc., 2009 NY Slip Op 09314.

Full post as published by New York Public Personnel Law on February 08, 2010 (boomark / email).