50 N.Y.2d 120 | NY | 1980
OPINION OF THE COURT
At issue is whether, consistent with due process strictures, petitioner, a tenured public employee, may be dismissed from service without a hearing pursuant to section 73 of the Civil
Petitioner began working as a policeman for the Village of Pelham in 1971 and eventually attained permanent civil service status. On January 27, 1976, he was injured in an automobile accident not related to his employment and was immediately placed on paid sick leave. The severity of these injuries was sharply disputed and in October, 1976, petitioner was ordered to report back to work by the chief of police. Petitioner, claiming he was still unfit for duty, refused to comply and the village discontinued his sick leave pay. Ultimately, an arbitrator ruled that the village had improperly discontinued petitioner’s sick leave pay and directed that all of these funds due him be paid.
By resolution dated August 2, 1977 — some 18 months after the automobile accident — the village board of trustees terminated petitioner’s employment on the basis of his continuing nonservice related disability. That resolution was enacted pursuant to section 73 of the Civil Service Law which provides in part: “When an employee has been continuously absent from and unable to perform the duties of his position for one year or more by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workmen’s compensation law, his employment status may be terminated and his position filled by a permanent appointment.”
Following termination, petitioner commenced this article 78 proceeding claiming that his due process rights were transgressed in that he had not been afforded a hearing prior to dismissal and that his dismissal was in contravention of his rights under the collective bargaining agreement granting village policemen unlimited sick leave. In his prayer for relief, petitioner sought reinstatement and restoration to sick leave status. Special Term granted the requested relief but a sharply divided Appellate Division reversed and dismissed the proceeding (67 AD2d 272). We now affirm.
The constitutional guarantee of due process of law (US
The due process protection afforded a public employee threatened with dismissal is dependent upon whether the employee has acquired a liberty or property interest in his employment (Matter of Petix v Connelie, 47 NY2d 457, 459). Although all are protected against arbitrary action (Matter of Cassidy v Municipal Civ. Serv. Comm. of City of New Rochelle, 37 NY2d 526), it is only after the employee demonstrates a legitimate claim of entitlement to continued employment that due process considerations are implicated. This requires an examination of State law to characterize the nature of the relationship that exists between the government and the employee (Board of Regents v Roth, 408 US 564, 577, supra).
It is undisputed that, as a permanent civil service employee (see Civil Service Law, §§ 58, 63), petitioner held a recognized property interest in his position (see Matter of Simpson v Wolansky, 38 NY2d 391). That interest, however, was not an open-ended one. For, while the State may create property interests subject to due process safeguards, it may, in furtherance of a legitimate State interest, designedly prevent the
Likewise the interest of the State in maintaining the efficiency and continuity of its civil service is a substantial one. In its capacity as an employer, therefore, the government must have broad discretion and control over the management of its personnel and internal affairs (cf. Matter of Petix v Connelie, 47 NY2d 457, supra). The absence of a public employee from his position for a prolonged period unduly impairs the efficiency of an office or agency. In many cases, the duties of the absent employee must be absorbed by the remaining staff because temporary replacements are difficult to obtain. Continued performance of the business of government necessitates that there be a point at which the disabled officer may be replaced. These considerations were the practical impetus behind enactment of section 73 of the Civil Service Law (NY Legis Ann, 1965, pp 91-92). At the same time, operation of the statute serves to protect the interests of the affected employee. It relieves him of the travails of undergoing a disciplinary proceeding based upon absence from work which may carry with it the stigma of incompetency or even worse. Moreover, once removed, the statute affords the employee an opportunity to re-enter public service if he recovers and is fit to resume the duties of his position.
Section 73, then, grants civil servants something less than an unrestricted property right to continued employment subject to the full panoply of due process protections. It does so. by granting to permanent civil servants an entitlement to continued employment inextricably entwined with the limitations contained in the statute for determining that right, viz., no continuous absence from work for one year or more on
However, the fact that section 73 circumscribes the contours of petitioner’s property interest does not mean that, consistent with the dictates of procedural due process, the statute may be utilized in every case without affording the affected employee any right to be heard. There is a marked distinction between those substantive entitlements created by State law and the procedural limitations imposed upon the power to abolish that right. Although the Legislature conceivably could elect not to confer any property interest in government employment (Bishop v Wood, 426 US 341, supra), it may not authorize extinguishment of that interest, once conferred, without appropriate procedural safeguards (Matter of Johnson v Director, Downstate Med. Center, State Univ. of N. Y., 41 NY2d 1061; Morrissey v Brewer, 408 US 471). Simply stated, the Constitution treats certain core procedural protections— notice and an opportunity to be heard — as mandatory incidents attendant to the final extinguishment of a property interest on stated substantive grounds.
Although there is no provision for a hearing contained in section 73, in some instances a hearing may be required to satisfy the demands of due process. As the statute conditions the continued existence of a property interest on the absence of certain specified objective criteria, where the facts underlying operation of the statute are in dispute the affected employee must be afforded an opportunity to be heard before that interest is finally extinguished (Mathews v Eldridge, 424 US 319, 334). For example, if the employee maintains that his disability arose in the course of his employment or there is a dispute concerning the length of time the employee has been disabled, the opportunity to be heard must be afforded.
Where the operative facts triggering application of section 73 are disputed, it may be preferable from an administrative point of view to hold the required hearing prior to termination. But there is no constitutional impediment to holding a
In the present case, the failure of petitioner to be afforded a hearing worked no constitutional deprivation. Underlying the necessity for a due process hearing is some factual dispute impacting upon the employer’s right to discharge (Codd v Velger, 429 US 624). Nowhere has petitioner disputed that he has been absent from work for more than one year on account of a disability or that his disability was nonservice related. Indeed, to this day petitioner maintains that he is still disabled and requests that the village restore him to sick leave status. This failure to dispute any of the operative facts underlying the village’s invocation of section 73 is fatal to his claim that he was entitled to a hearing. The primary purpose of a hearing in this context would be to afford petitioner the opportunity to challenge the information in the hands of the village concerning his disability. When the operative facts are not in dispute, a hearing is unnecessary.
Finally, we reject petitioner’s claim that article XVI of
Even if article XVI could be construed in the unusual manner petitioner submits, public policy would prevent its enforcement. While a municipal employer may agree to provide preference for the filling of vacancies to certain individuals (Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn., 45 NY2d 746), it may not surrender its ultimate appointing authority (see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774, 778). Similarly, whereas there is no prohibition against the establishment of a limited job security clause in a collective bargaining agreement (Matter of Board of Educ. v Yonkers Federation of Teachers, 40 NY2d 268, 271), public policy prohibits an employer from bargaining away its right to remove those employees satisfying the plain and clear statutory requisites for termination.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.
Order affirmed.
"An employee who is sick or injured may have unlimited sick leave with pay, subject to the right of the Village to deny or discontinue pay to any employee who is capable of working or whose absence is caused by an injury incurred while working for another employer.”