Pre-termination hearings required when attempting to terminate an employee pursuant to Civil Service Law §73
Matter of Prue v Hunt, 78 NY2d 364
§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 that did not result from an occupational injury or disease.
The significant questions raised in the Prue case is whether the Federal Due Process Clause requires a hearing before an employee may be terminated under §73. The Court of Appeals said that "in light of Cleveland Board of Education v Loudermill (470 US 532)," a §73 discharge must be proceeded by a pre-termination notice and a minimal opportunity to be heard. The ruling indicates that "to the extent that [the Court's] holding in Economico v Pelham (50 NY2d 120) permits a §73 discharge with only a post-termination hearing, it is superseded by Loudermill."
Prue, a police officer with the Syracuse Police Department, was seriously injured in an accident unrelated to his work on November 15, 1986. This injury 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, Prue again requested reinstatement, this time submitting a letter from his physician stating that he was able to return to a desk job. The decision notes that for some ten years Prue, as President of the PBA, had been given a desk job in the department pursuant to a collective bargaining agreement.
However Prue's request for desk duty was refused and he was terminated his employment pursuant to §73.
Although Prue was offered a post-termination Economico hearing to be held within five days of his termination, he declined the hearing and commenced this Article 78 proceeding contesting his termination. The Court of Appeals decided that Prue's termination under §73 is controlled by the U.S. Supreme Court's ruling in Loudermill. It said that "the potential for an erroneous discharge or an inappropriate exercise of the discretion conferred under §73" justifies the initial burden placed on department in requiring it provide Prue with some pre-termination opportunity to respond. "
Also noted was the Court's view that Prue's discharge raised questions regarding his physical condition and whether his ability to perform the desk job he had filled for the preceding ten years constitutes an "ability to perform the duties of his position" within the meaning of §73.
In addition, the Court said that "like the Ohio statute in Loudermill, §73 calls for the termination of employees in the discretion of the employer." Consideration of Prue's contentions concerning his ability to perform the desk job he had previously held could have been a significant factor in the initial discretionary decision of whether to order termination under §73. However, he was given no opportunity to make these arguments prior to his discharge under the procedure
followed by Department.
As to the nature of the hearing to be given an employee in a §73 termination situation, the Court said that it concluded that Due Process requires only notice and some opportunity to respond.
The decision indicates that 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. The Court concluded that a pre-termination hearing was justified in §73 cases.