Supreme Court denied Plaintiff's petition seeking to annul a determination by the New York City Civil Service Commission [CSC] affirming the appointing authority's decision to impose the penalty of termination on the Plaintiff following a disciplinary hearing "conducted in absentia". Supreme Court also granted a cross-motion to dismiss the Plaintiff's petition.
The Appellate Division unanimously affirmed the Supreme Court's ruling, without costs.
Citing Matter of Centeno v City of New York, 115 AD3d 537, the Appellate Division explained that Plaintiff's constitutional arguments, which are his only arguments reviewable under the "extremely narrow scope of review applicable" to CSC determinations, were unpreserved as Plaintiff's brief submitted to the CSC "never protested that [his] constitutional rights were being violated," and "[the Appellate Division said it] has 'no discretionary authority' to 'reach[] an unpreserved issue in the interest of justice' in an article 78 proceeding ... including issues touching on due process".
With respect to conducting a disciplinary hearing in absentia, New York courts have held that such a disciplinary hearing may proceed and the employee tried in absentia provided 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. A diligent effort to contact the individual to determine if he or she has a reasonable explanation for his or her absence from the scheduled disciplinary hearing must be made before the hearing officer proceeds to conduct the hearing in the absence of the accused employee even if the employee had earlier advised the appointing authority or the hearing officer that he or she will not participate in the disciplinary hearing.
3. A formal disciplinary hearing must be conducted and the appointing authority is required to introduce evidence proving the charges and specifications served on the employee 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 to appeal if he or she has been found guilty of one or more of the charges and specifications considered at the disciplinary hearing conducted in absentia.
Click HERE to access the Appellate Division's decision posted on the Internet.