Prue v. Hunt

OPINION OF THE COURT

Section 73 of the Civil Service Law authorizes the termination and replacement of civil servants when they have been continuously absent from and unable to perform the duties of their position for one year or more by reason of a disability. The questions raised are whether the Federal Due Process Clause requires a hearing prior to termination under section 73 and, if so, what form that hearing must take. In light of Cleveland Bd. of Educ. v Loudermill ( 470 US 532 ), we hold that the section 73 discharge in this case must be accompanied by pretermination notice and a minimal opportunity to be heard. To the extent that our holding in Matter of Economico v Village of Pelham ( 50 NY2d 120 ) permits a section 73 discharge with only a posttermination hearing, it is superseded by Loudermill (supra).

I

On November 15, 1986, petitioner Prue, a 19-year veteran of the City of Syracuse Police Department, was seriously injured in an accident unrelated to his work which allegedly prevented him from performing his duties as a police officer. Having exhausted all his paid vacation, personal and sick leave by October 15, 1987, petitioner requested reinstatement but failed to submit the medical documentation necessary to show that he was able to perform the duties of his position. On November 13, 1987, he again requested reinstatement, this

The Supreme Court held that due process required that the employees be given a pretermination opportunity to respond, in addition to the posttermination procedures provided for in the Ohio statute (id., at 547). The Court noted specifically that because of the apparent potential for an erroneous discharge or an inappropriate exercise of the discretion conferred under the Ohio statute, the minimal burden imposed on the employer in providing some preliminary opportunity to respond was justified (id., at 543-544). Loudermill’s discharge "turned not on the objective fact that he was an ex-felon or the inaccuracy of his statement to the contrary, but on the subjective question whether he had lied on his application form.” (Id., at 544, n 9.) The Court observed that the question was disputable and could not be properly answered without hearing Loudermill’s side of the story (id.). It also recognized that when a discharge is discretionary, as it was under the Ohio statute, "the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.” (Id., at 543.)

Petitioner Prue’s termination under section 73 is controlled by the holding of Loudermill. The potential for an erroneous discharge or an inappropriate exercise of the discretion conferred under section 73 justifies the minimal burden placed on respondents in requiring them to provide petitioner with some pretermination opportunity to respond. Petitioner’s discharge implicates contested questions regarding his physical condition and whether his ability to perform the desk job he had filled for the preceding 10 years constitutes an ability "to perform the duties of his position” within the meaning of section 73. Moreover, like the Ohio statute in Loudermill, section 73 calls for the termination of employees in the discretion of the employer. Consideration of petitioner’s contentions concerning his ability to perform the desk job he had

The remaining question is what pretermination procedural formalities are mandated by Federal due process. We conclude that due process requires only notice and some opportunity to respond (see, Cleveland Bd. of Educ. v Loudermill, supra, at 545-546 ). The formality and procedural requisites of a hearing can vary depending on such factors as the importance of the interest involved, the extent to which that interest may be lost, the hardship imposed by the loss and the availability of subsequent proceedings (see, Loudermill, supra, at 545 ; Boddie v Connecticut, 401 US 371 , 378). The Supreme Court has required full evidentiary hearings prior to adverse governmental action in cases of termination of government assistance where severe hardship will be immediately imposed, as, for example, when the government cancels Aid to Families With Dependent Children (see, Goldberg v Kelly, 397 US 254 ). The Loudermill Court noted, however, that the cutting off of public assistance in Goldberg presented significantly different considerations from the dismissal of the public employees involved in Loudermill (id., at 545). The Court decided that since the discharged employees were entitled to a full scale posttermination hearing, at which the propriety of their discharges would be finally determined, due process could be satisfied by a pretermination showing that "there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. See Bell v. Burson, 402 U. S., at 540.” (Id., at 546.) This, the Court stated, demands no more than that the employees be given an explanation of the charges against them and an opportunity to present their side of the story either in writing or in person (id., at 546).

In the present case, we see no need for procedural formality greater than that required in Loudermill (supra) to meet Federal due process standards. Here, as in Loudermill,

In view of our interpretation of section 73 as requiring pretermination notice and opportunity to be heard comporting with the minimum demands of the Federal Due Process Clause, we agree with the Appellate Division that section 73 should not be held facially unconstitutional (see, People v Cintron, 75 NY2d 249 , 260).

The order should be affirmed, without costs.

Chief Judge Wachtler and Judges Simons, Kaye, Alexander, Titone and Bellacosa concur.

Order affirmed, without costs.