Despite evidence supporting allegations of sexual misconduct involving students, a public employer in another state "determined that it could not make a decision" about the employee's culpability because of  the employee's refusal to participate in its investigation of the allegations and  the employee already having resigned from his former position.
In New York State 4 NYCCR 5.3, Resignation, may be relevant in the event the appointing authority is faced with such a situation.
Applicable to employees in the Classified Service employed by the State of New York as the employer, 4 NYCCR 5.3, in pertinent part, provides that in the event an employee submits a resignation "when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation."*
Should the individual refuse to participate in the investigation and, or, a disciplinary hearing, the appointing officer may elect to conduct the individual's disciplinary hearing "in absentia".
New York courts have held that the disciplinary hearing may proceed and the employee tried in absentia provided, however, the appointing authority has complied with a number of procedural steps, including the following:
1. The appointing authority must properly serve the employee with the disciplinary charges and advise him or her, among other things, of the date, time and place of the hearing.
2. That a diligent effort was made to contact the individual to determine if he or she has a reasonable explanation for his or her absence before the hearing officer proceeds with holding the hearing in the absence of the accused employee.
3. A formal hearing must be conducted and the appointing authority is required to introduce evidence proving its charges to the hearing officer.
4. A formal record of the hearing must be made and a transcript provided to the appointing authority and, if requested, to the employee.
5. The employee must be advised of the appointing authority’s determination and of the employee's right of appeal if he or she has been found guilty of one or more of the charges.
As the Appellate Division held in Mujtaba v NYS Dept. of Education, 148 A.D.2d 819; 107 A.D.3d 1066, “due process does not require that [the charged individual] be present at an administrative hearing, but rather requires notice of the charges and an opportunity to be heard.” What also is required, however, is that the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.**
Click HEREto access a New York City Office of Administrative Trials and Hearings [OATH] decision that involved the hearing officer's conducting a disciplinary hearing in absentia .
* Many local civil service commissions and Personnel Officers of political subdivisions of the State have adopted a similar rule or regulation.
** Mari v Safir, 291 AD2d 298, sets out the general standards applied by the courts in resolving litigation flowing from the appointing authority conducting a disciplinary hearing in absentia.