Petition — McGirr v. Division of Veterans Affairs

IN THE

Supreme Court of the United

OCTOBER TERM, 1977

No 9797-1647

IN THE MATTER OF

FRANK C. McGIRR.

Petitioner.

v.

DIVISION OF VETERANS AFFAIRS.

EXECUTIVE DEPARTMENT, STATE

OF NEW YORK, FRANK V. VOTTO.

DIRECTOR, and NEW YORK STATE

DEPARTMENT OF CIVIL SERVICE.

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS STATE OF NEW YORK

JOHN I. HEISE, JR.

861 Pershing Drive

Silver Spring, Maryland 20910

(301) 585.8400

Attorney for Petitioner

THE CASILLAS PRESS. InC ~1717 © Serene Ww W -Weetengton O C -2731290

(i)

TABLE OF CONTENTS

JURISDICTION .

QUESTIONS PRESENTED .

STATUTES AND REGULATIONS INVOLVED .

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX A — Order of the New York Court of

Appeals filed February 22, 1978 .

APPENDIX B — Opinion and Order of the New

York Appellate Division of the

—

28,1977 ..

APPENDIX C — Opinion and Order of the New

York Supreme Court Special

Term filed February 23, 1976

APPENDIX D — Opinion and Order of the New

York Appellate Division of the

Supreme Court filed pane

20, 1975 : :

APPENDIX E — Opinion and Order of the New

York Supreme Court Special

Term filed April 2.1974 .

12a

17a

2la

AUTHORITIES CITED

Gases,

Arnett v. Kennedy,

416 US. 134 (1974).

Bell v. Burson,

402 US. 535 (1971)

Berns v. Civil Service Commission,

$37 F.2d 714 (2nd Cir. 1976)

Bernstein v. Industrial Commissioner,

398 N.Y S.2d 437 (App. Div. 1977)

Board of Regents v. Roth,

408 U.S. 564 (1972)

Boehning v. 7 aiaatan papas

423 US. 6(1975) :

Bowles v. Willingham,

321 U.S. 503 (1944)

Central Trust Co. v. Garvan,

254 US. 554 (1921)

Connell v. Higginbotham,

403 U.S. 207 (1971)

Corn Exchange Bank v. Coler,

280 US. 218 (1930)

Ewing v. Mytinger & Casselberry,

339 US. 594 (1950)

Fahey v. Mallonee,

332 US. 245 (1947)

Page

9,10, 11,22

12

16

10

18

19

Fuentes v. Shevin,

407 US. 67 (1972) .

Goldberg v. Kelly,

397 US. 254 (1970)

Henry v. Mississippi,

379 US. 443 (1965)

Matter of Johnson v. Downstate Medical

Center, 41 N.Y.2d 1061, 396 N.Y.S.2d 172,

364 N.E.2d 837 (Ct. App. 1977)

Morrissey v. Brewer,

408 U.S. 471 (1972)

North American Cold Storage Co. v. ena

211 U.S. 306 (1908) ;

Phillips v. Commissioner,

283 U.S. 589 (1931)

Sanford, et al. v. Rockefeller,

364 N.Y S.2d 450, 324 N.E.2d 113

(Ct. App. 1974) .

Sniadach v. Family Finance Corp.,

395 US. 337 (1969)

Wolff v. McDonnell,

418 US. 539 (1974)

Statutes and Regulations:

United States Constitution, Fourteenth

Amendment “er

€

10

15, 16

10

. 2,9, 18, 22

» ——S— SS ee lm

(iv)

Page

oh ee 2

New York Civil Practice Law and Rules§217 ...... 5, 20

New York Civil Service Law$75 ...... 5,7,11,13,15

New York Civil Service Law, Rules and

I eee 4,6, 14,20

New York Civil Service Law, Rules and

ene « «4 & od 6 hk Saree | 3

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

IN THE MATTER OF

FRANK C. McGIRR,

Petitioner,

Vv.

DIVISION OF VETERANS AFFAIRS,

EXECUTIVE DEPARTMENT, STATE

OF NEW YORK, FRANK V. VOTTO,

DIRECTOR, and NEW YORK STATE

DEPARTMENT OF CIVIL SERVICE,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE COURT OF APPEALS STATE OF NEW YORK

Petitioner respectfully petitions that a Writ of Certiorari

issue to the Court of Appeals, State of New York to re-

view its Order entered February 22, 1978 affirming the

decision of the Appellate Division of the Supreme Court

of the State of New York, Second Judicial Department,

of February 28, 1977 dismissing the proceedings.

2

OPINIONS BELOW

The Opinion and Order of the Court of Appeals, State

of New York (__ N.Y. 2d __, __ N.E. 2d __) is printed

in Appendix A, infra. The Opinion and Order of the Appel-

late Division of the Supreme Court of the State of New

York, Second Judicial Department (56 App. Div. 2d 653,

392 N.Y.S. 2d 44) is printed in Appendix B, infra. The

Opinion and Order of the Special Term, Part One of the

Supreme Court of the State of New York (unpublished) is

printed in Appendix C, infra. The Opinion and Order of

the Appellate Division of the State of New York, Second

Judicial Department (47 App. Div. 2d 541, 363 N.Y.S. 2d

107) is printed in Appendix D, infra. The Opinion and

Order of the Court of first instance, Special Term, Part

One of the Supreme Court of the State of New York (un-

published) is printed in Appendix E, infra.

JURISDICTION

The Order and Opinion of the Court of Appeals, State

of New York was entered on February 22, 1978. The

jurisdiction of this Court is invoked under 28 U.S.C.

1257(3) and the Rules of the Supreme Court of the United

States Rule 19(1)(a).

QUESTIONS PRESENTED

1. Was the Petitioner, a classified New York employee,

entitled to a pretermination hearing under the provisions of

New York State Law and the due process clause of the

Fourteenth Amendment of the United States Constitution?

2. Was the decision of the Court of Appeals of the

State of New York based on adequate independent state

grounds?

3

STATUTES AND REGULATIONS INVOLVED

United States Constitution Fourteenth Amendment

28 U.S.C. 1257(3)

New York Civil Practice Law and Rules §217

New York Civil Service Law me

New York Civil Service Law, Rules and Regulations §5.3(d)

New York Civil Service Law, Rules and Regulations §21.3(b)

STATEMENT OF THE CASE

Petitioner was a state Veterans Counselor for the Division

of Veterans Affairs, Executive Department, State of New

York. He was a member of the New York State Classified

Civil Service, Competitive Class and held a permanent ap-

pointment. He had been employed by the State of New

York from April 5, 1958.

On December 14, 1971, Petitioner called his office and

reported that he was ill. At this time, Petitioner had ac-

cumulated 36 days of sick leave credits pursuant to Rule

21.3(b), New York Civil Service Law, Rules and Regula-

tions (McKinney 1973). Petitioner did not report to work

for the balance of the week. The following week, on De-

cember 20, 1971, Petitioner again called his office and re-

ported he was still ill. Petitioner had in the interim re-

quested his physician to forward a medical report to the

Petitioner’s supervisor. This report was received by the

Respondent on December 20, 1971.

By letter dated December 29, 1971, the Respondent by

the Deputy Director of the Division of Veterans Affairs

wrote Petitioner and requested:

4

“.. . that you contact your doctor and

have him submit to me a report, indicating

the diagnosis of your present illness, together

with a prognosis as to when you may be

expected to return to duty.

In the event that we are not satisfied

with the severity of your illness, we will

have you examined by a state physician . . .”

Subsequently Petitioner forwarded the request to his

physician. On January 13, 1972, the physician forwarded

a letter, admittedly brief and less than a full report, to

the Respondent. The physician at the same time forward-

ed to Petitioner a complete diagnostic report indicating

that Petitioner suffered from an emphysema condition of

the lungs. The Petitioner had, on his physician’s advice

during this time, removed himself to Florida.

By letter dated January 12, 1972 (the tenth working

day after December 29, 1971) and without a physical ex-

amination by a state doctor as referenced in the December

29, 1971 letter, Respondent notified Petitioner that he

deemed Petitioner’s absense as without authorization from

December 27, 1971. The letter noted that the Director

of the Division of Veterans Affairs was reporting Petition-

er’s resignation effective December 27, 1971. The Director

Stated that decision was based on Rule 5.3(d), Civil Service

Law, Rules and Regulations (McKinney 1973), which pro-

vided for summary dismissal by resignation of an employee

deemed to have been absent without leave for a period of

ten days. The letter to the Petitioner did not specify that

he had any appeal rights.

The Petitioner sought reconsideration from the Division

of Veterans Affair. Such reconsideration was denied. Peti-

tioner also appealed to the State Civil Service Commission

5

on February 10, 1972. The Commission dismissed the ap-

peal on June 12, 1972 on the ground that an appeal could

not be brought from a “Voluntary” dismissal such as a res-

ignation. In August 1972, Petitioner commenced proceed-

ings in the Supreme Court, for the State of New York,

Special Term.

Petition of the Petitioner filed with the Court on August

25, 1972 alleged as follows in paragraph “FIFTH”:

“That on January 21, 1972 and retroac-

tive to December 27, 1971, petitioner was

unlawfully and illegally discharged from said

employment without any justification or cause

and without a hearing or due process of law

as required by Section 75 of the Civil Serv-

ice Law of the State of New York and the

constitution of the State of New York and

of the United States.”

Therefore, Petitioner had in the court of first instance

noted the federal question in his initial pleading.

In the Supreme Court for the State of New York, Spe-

cial Term, the Respondents moved for dismissal of the pro-

ceeding as untimely under Section 217, New York Civil

Practice Law and Rules (McKinney 1973). The Supreme

Court, Special Term denied the motion and Respondents

took an interlocutory appeal to the Appellate Division.

The Appellate Division rejected the appeal and affirmed

the decision denying the motion to dismiss, 349 N.Y.S. 2d,

646 (1973). The Respondents submitted an answer and

both parties moved for a summary judgment. On April 2,

1974, Supreme Court, Special Term directed that the Divi-

sion of Veteran Affaris grant Petitioner a formal hearing

pursuant to Section 75 of the New York Civil Service Law

(McKinney 1973).

6

In the opinion, the Supreme Court noted that the self-

executing nature of Rule 5.3(d) of the New York Civil

Service Law, Rules and Regulations (McKinney 1973) was

arbitrary, capricious, and an abuse of the Petitioner’s due

process rights (unpublished, Appendix E, infra).

The decision was appealed to the Appellate Division. The

Appellate Division remitted the matter to the Supreme Court

for a hearing on whether the Petitioner complied with the re-

quirements of Subdivision (d) of 4 N.Y.C.R.R. 5.3, Appendix

D, infra.

The Supreme Court, Special Term conducted a hearing

on May 28, 1975, continued on June 4, 1975 and conclud-

ed on June 12, 1975. The Court found that Petitioner’s

absence from his employment could not be termed “with-

out an explanation” as specified in New York Civil Service

Law, Rules and Regulations §5.3(d) (McKinney 1°73). The

Court ordered Petitioner’s reinstatement with appropriate

amount of back pay to be calculated by a referee (unpub-

lished), Appendix C, infra.

Respondents appealed this decision to the New York Ap-

Appellate Division Second Judicial Department. The Ap-

pellate Division on February 28, 1977 reversed the Supreme

Court on the law and the facts (Appendix B, infra). The

Appellate Division addressed the federal question and con-

cluded:

“Under the facts of this case, Matter of John-

son v. Downstate Med. Center (52 AD2d 257)

does not require petitioner’s reinstatement.

This court held in Johnson (p. 369) that sec-

tion 5.3(d) of the Rules and Regulations of

the Department of Civil Service ‘as applied

to .. . [the] petitioner’ therein, was uncon-

Stitutional. The basis of that ruling was the

fact that the petitioner therein had not been

7

accorded due process by reason of the fact

that his employment had been terminated with-

out his being allowed a hearing on the velaty

of the reason for the terminaticn.

In the case at bar, this court had remand-

ed petitioner's CPLR article 78 proceeding to

Special Term for a hearing to resolve factual

questions relating to petitioner’s absence. Pe-

titioner had previously obtained a judgment

directing the Division of Veterans Affairs to

grant him a hearing, but nevertheless appealed

from the judgment because it did not direct

his reinstatement. A full hearing was held

before Special Term in May and June, 1975,

and a decision favorable to petitioner was ren-

dered on December 5, 1975. Petitioner has

acquiesced in having his case heard through

judicial rather than administrative proceedings,

has received a full hearing with a more fa-

vorable burden of proof requirement (the

Division had to satisfy a ‘preponderance of

the evidence,’ rather than a ‘substantial evi-

dence’ standard), and has in no way been

denied due process of law. The parties to

a lawsuit are free to chart their own course

and may fashion the basis upon which a par-

ticular controversy will be resolved (see Cul-

len v. Naples, 31 NY2d 818).” 56 App. Div.

2d 653, 392 N.Y.S. 2d 44 (1977), Appendix

B, p. Sa.

Petitioner appealed to the Court of Appeals. Petitioner

noted as one of many points on appeal that the termina-

tion of his Civil Service employment without any of the

procedures provided by Section 75 of the New York

Civil Service Law (McKinney 1973), was an unconstitu-

tional deprivation of a property right without due pro-

cess of law. The Court of Appeals in its opinic= of Feb-

ruary 22, 1978 held that the threshold and d.spositive ques-

tion was whether the proceeding was timely commenced

(Appendix A). The Court in addressing the federal ques-

tion stated:

“Finally, in the light of arguments present-

ed on this appeal, we take the opportunity

to point out that Matter of Johnson v. Direc-

tor, Downstate Medical Center (41 NY2d

1061) by no means holds that an unex-

plained absence may not be grounds for

dismissal of an employee. Rather, the thrust

of our decision in that case is that the ‘full

panoply of procedural dve process’ required

by section 75 of the Civil Service Law may

not be circumvented by an administrative

rule creating an irrebuttable presumption of

resignation. The letter and spirit of the Civil

Service Law interdicts such a facile addition

to the available means for bringing about a

termination of tenured public employment.

In any event, this proceeding being time-

barred for the reasons we have indicated, the

order of the Appellate Division should be

affirmed.” __ N.Y. 2d, _—s«iNE.. 2d

_. (1978), Appendix A, p. la.

From that opinion and order, Petitioner is hereby filing

this petition for Writ of Certiorari.

REASONS FOR GRANTING THE WRIT

The Petitioner's rights to due process were denied when

he did not receive written notice of his proposed removal,

the reasons therefore, an opportunity to answer, and a hear-

9

ing prior to his separation. Petitioner as a permanent New

York State employee had a sufficient expectancy of con-

tinued employment to constitute a protected property in-

terest; was entitled to fair notice; and a hearing prior

to his termination, under both New York State law and

the due process clause of the Fourteenth Amendment of

the United States Constitution.

The decision of the Court of Appeals of the State of

New York on the timeliness of Petitioner’s action was not

adequate to dispose of the case without reaching the Fed-

eral question, and does not bar review of the matter by

the United States Supreme Court.

A. Denial of Due Process

Petitioner is entitled to the full due process protection

of a notice, opportunity to respond and pre-termination

hearing. In the instant matter, the New York Civil Service

Law creates an entitlement or property interest in contin-

ued employment and the statute provides for due process

protection prior to termination.

This Court has ruled in Arnett v. Kennedy 416 U.S. 134,

40 L.Ed.2d 15, 94 S. Ct. 1633 (1974) that a government job

is a property interest which cannot be taken away from an

employee without a hearing “at some stage of the proceed-

ings” because of the due process guarantees of the United

States Constitution. This opinion reaffirmed a well-established

principle that a citizen may not have his property taken

without a hearing. Connell v. Higginbotham, 403 U.S. 207

(1971) (loss of a state job); Goldberg vy. Kelly, 397 US.

254 (1970) (loss of welfare payments): Morrissey v. Brewer,

408 U.S. 47! (1972) (revocation of a parole); Wolff v. Mc-

Donnell, 418 U.S. 539 (1974) (cancellation of a prisoner's

good-time credits); Bell v. Burson, 402 U.S. $35 (1971)

| ,

(cancellation of a driver's license); Board of Regents v.

Roth, 408 U.S. 564 (1972) (damaged rep..ation and stand-

ing); Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)

(garnishment of wages); Fuentes v. Shevin, 407 U.S. 67

(1972) (seizure of mortgage property).

The plurality opinion of Justice Rehnquist in Arnett vy.

Kennedy, supra, held that “property interests” (in a Con-

stitutional context) are both created and regulated by stat-

ute. Justice Rehnquist concluded:

“Here the property interest which appellee

had in his employment was itself conditioned

by the procedural limitations which had ac-

companied the grant of that interest.” 416

U.S. at 155.

Six of the Justices writing in separate opinions held how-

ever that once a statute creates a property interest the ter-

mination or denial of that interest is regulated by the due

process requirements of the Constitution. As noted by

Justice Marshall:

“. . . Accordingly, a majority of the Court

rejects Mr. Justice Rehnquist's argument that

because appellee’s entitlement arose from stat-

ute, it could be conditioned on a statutory

limitation of procedural due process protec-

tions, an approach which would render such

protection inapplicable to the deprivation of

any statutory benefit—any ‘privilege’ extended

by Government—where a statute prescribed a

termination procedure, no matter how arbitrary

or unfair...” 416 U.S. at 211.

In the instant matter, it is clear, as developed below, that Peti-

tioner had a “property interest” in continued employment

absent “incompetency or misconduct” created by New

York law (Arnett v. Kennedy, supra). Petitioner also had

a right to the “full panoply of >rocedural due process”

prior to termination guaranteed both by statute (Boehning

v. Indiana State Employees Association, 423 U.S. 6, 46

L.Ed. 2d 148, 96 S. Ct. 168 (1975)) and the due process

clause of the Fourteenth Amendment (See concurring opin-

ions in Arnett v. Kennedy, supra). The denial of Petitioner’s

right to prior notice, an opportunity to respond and a hear-

ing was a violation of basic standards of due process.

Petitioner, a permanent New York State employee in the

clissified service was guaranteed continued employment

under the New York Civil Service Laws absent “incompe-

tency or misconduct.”” New York Civil Service Law §75

(McKinney 1973).

Article 75 provides in part:

“A person described in paragraph (a), . . .

of this subdivision shall not be removed or

otherwise subjected to any disciplinary pen-

alty provided in this section except for in-

competency or misconduct shown after a

hearing upon stated charges pursuant to this

section.

(a) A person holding a position by perma-

nent appointment in the competitive class of

the classified civil service, .. ."" New York

Civil Service Law §75 (McKinney 1973).

The Court of Appeals, State of New York has stated that

“under section 75 of the Civil Service Law, such an em-

ployee enjoys the full range of procedural protections.”

Sanford, et al. v. Rockefeller, 364 N.Y.S. 2d 450, 324

N.E. 2d 113 (1974) at 364 N.Y.S. 2d 460.

12

The United States Court of Appeals, Second Circuit

agreed that under New York law an employee of the clas-

sified service has an enforceable expectation of continued

public employment. Berns v. Civil Service Commission,

537 F. 2d 714 (2nd Cir. 1976). The Court stated:

13

S.Ct. 2701, 33 L.Ed.2d 548 (1972): Perry y.

Sindermann, 408 U.S. 593, 92 S.Ct. 2694,

33 L.Ed.2d 570 (1972): Vega v. Civil Service

Commn., 385 F. Sapp. 1376 (S.D.N.Y. 1974),

vacated as moot, Docket No. 75-7007 (2d

“We agree with Judge Tenney that the sum-

mary dismissal without a prior hearing violated

Berns’s right to due process of law under the

Fourteenth Amendment. In making this deter-

mination, a federal court must look to state

law to determine whether the employee has

satisfied the requirements for attaining a prop-

erty interest in the job that will be protected

by the due process clause. See Bishop v.

Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.

2d 684, 44 U.S.L.W. 4820 (1976). Cf. De-

morest v. City Bank Farmers Trust Co., 321

U.S. 36, 64 S.Ct. 384, 88 L.Ed. 526 (1944).

Under New York law, Berns achieved this

status when she was retained beyond her six

month-probationary period. See McCarthy y.

Board of Education of Union Free School.

District No. 3, 73 Misc. 2d 225, 340 N.Y.S.

2d 679, 685 (Sup. Ct. 1973); N.Y. Civil Serv-

ice Law $75; N.Y.C. R.R. Civil Service $4.5(a)

(3). By remaining a police administrative aid

after October 29, 1973, Berns acquired an

‘enforceable expectation of continued public

employment,’ Bishop v. Wood, supra, and her

employment could not thereafter be termi-

nated in the absence of procedural safeguards,

including at a minimum, a pre-dismissal hear-

ing of the charges made against her. See

Board of Regents v. Roth, 408 U.S. 564, 92

Cir. 1975).” 537 F.2d at 716.

A pre-termination hearing is mandated under the pro-

visions of Section 75 of the New York Civil Service Law

(McKinney 1973). The statute provides that the employee

shall have written notice, an opportunity to answer and a

hearing prior to termination.

“2. Procedure. A person against whom re-

moval or other disciplinary action is proposed

shall have written notice thereof and of the

reasons therefor, shall be furnished a copy

of the charges preferred against him and shall

be allowed at least eight days for answering

the same in writing. The hearing upon such

charges shall be held by the officer or body

having the power to remove the person against

whom such charges are preferred, or by a dep-

uty or other person designated by such officer

or body in writing for that purpose. In case

a deputy or other person is so designated, he

shall, for the purpose of such hearing, be vest-

ed with all the powers of such officer or body

and shall make a record of such hearing which

shall, with his recommendations, be referred

to such office or body for review and deci-

sion. The person or persons holding such

hearing shall, upon the request of the person

against whom charges are preferred, permit

him to be represented by counsel, and shall

14

allow him to summon witnesses in his behalf.

The burden of proving incompetency or mis-

conduct shall be upon the person alleging the

same. Compliance with technical rules of evi-

dence shall not be required.” New York Civil

Service Law §75 (McKinney 1973).

It is clear that Petitioner was entitled to pre-termination

notice, hearing and an opportunity to answer.

Petitioner was terminated under the provisions of Rule

5.3(d) of the New York Civil Service Law, Rules and Regu-

lations (McKinney 1973). The Rule provides as follows:

“(d) Unauthorized absence; when deemed

a resignation.

When an employee is absent without leave

and without an explanation therefor for a

period of 10 work days, such absence shall

be deemed to constitute a resignation effec-

tive on the date of the commencement of

such absence. The failure of an employee to

return to his position within 10 work days

following the expiration of a leave of absence,

or extension thereof, without submitting an

explanation therefor within such 10-day per-

iod, shall constitute a resignation which, for

purposes of determining eligibility for rein-

Statement, shall be deemed to be effective

as of the date of the commencement of such

leave of absence. Nothing herein shall be

deemed to excuse the unauthorized absence

of an employee or his failure to return to

his position upon the expiration of an author-

ized leave of absence, and any such failure

15

may Se megueded os misconduct in an appro-

sciplinary proceeding.” New York

Civil Service Law, Rules and Regulations

§5.3(d) (McKinney 1973).

It was the practice in New York to implement this Rule

without regard to the procedural process set forth in Sec-

tion 75 of the Civil Service Law. In 1977, the Court of Ap-

peals of the State of New York addressed this matter. John-

son v. Director, Downstate Medical Center, 41 N.Y.2d 1061,

396 N.Y.S.2d 172, 364 N.E.2d 837 (1977). The Court con-

cluded without reaching the constitutional issues that the pro-

cedural requirements of Section 75 of the New York Civil Ser-

vice Law (McKinney 1973) are applicable to such termina-

tions. The Court stated:

. To the extent that its application

may result in a discharge of the employee it

may be said to parallel section 75 in purpose.

But, as occurred in this instance, the employ-

er is not required or expected to give any no-

tice to the employee before invoking the rule.

This flies in the face of one of the mandates

of section 75.

It cannot seriously be contended that rule

5.3(d), at least as presently implemented, pro-

vides a separate and distinct procedure for

termination of employment... .

In our view the provisions of the statute

preclude resort to the provisions of the rule

(however vacuous it has become in practice)

to terminate employment... .

In the light of the disposition of the appeal

on this ground we do not reach or consider

16 id

* hearing in accordance with the procedure set

tu ted.

pr ce geo. eg so vigorously presen forth therein. It appears that the State of

New York has adopted a policy of reinstating

The Court of Appeals in the instant matter noted the John- all tenured Civil Service employees terminated

son, supra, decision in a footnote. pursuant to §5.3(d) of the Rules and Regula-

ti f the Department of Civil Servi d

“Subsequently, when the present case was maid ~Ae.g vaehe: wes boees

; = that the Office of the Atiorney General does

still wending its — through the courts, -_ not oppose reinstatement of petitioner-appel-

declared rule 5.3(d) invalid as in contravention lant in view of the decision in Johnson v.

of the statutory P rocedures contained in sec- Downstate Medical Center, 41 N.Y.2d 1061,

tion 75 of the Civil Service Law. (Matter of 396 N.Y.S.2d 172, 364 N.E.2d 837 (1977).”

Johnson v. Director, Downstate Med. Center,

41 NY2d 1061).” Appendix A, infra, p. la. In the instant matter, the Court of Appeals failed to

reach the constitutional question, however, it “affirmed”

The Appellate Division, Supreme Court of the State of the order of the Appellate Division. Appendix A, infra, p. la.

New York, First Department, also discussed the Johnson,

supra, decision in Bernstein v. Industriai Commissioner, 398 The Appellate Division in the instant matter had decided

N.Y.S. 2d 437 (1977). that since Petitioner had received a judicial hearing on his

matter he was not denied due process of law.

“With respect to petitioner’s claim that her

termination without a hearing violates due

process of law, which claim is denied by re-

spondent in his answer, we note that the Sec-

ond Department views Section 5.3(d) of the

Rules and Regulations of the New York State

Department of Civil Service as violative of

the due process guarantees of the Fourteenth

Amendment (VJohnson v. Downstate Medical

Center, supra). The Court of Appeals in

Johnson v. Downstate Medical Center, 41

N.Y.2d 1061, 396 N.Y.S.2d 172, 364 N.E.2d

837 (1977) declared Section 5.3(d) of the

Rules and Regulations of the Department of

Civil Service invalid as being in conflict with

Section 75 of the Civil Service Law, the latter

section mandating written notice of charges

of either misconduct or incompetence and a

“In the case at bar, this court had remanded

petitioner’s CPLR article 78 proceeding tc

Special Term for a hearing to resolve factual

questions relating to petitioner’s absence. Pe-

titioner had previously obtained a judgment

directing the Division of Veterans Affairs to

grant him a hearing, but nevertheless appealed

from the judgment because it did not direct

his reinstatement. A full hearing was held

before Special Term in May and June, 1975,

and a decision favorable to petitioner was ren-

dered on December 5, 1975. Petitioner has

acquiesced in having his case heard through

judicial rather than administrative proceedings,

has received a full hearing with a more favor-

able burden of proof requirement (the Divi-

sion had to satisfy a ‘preponderance of the

evidence,’ rather than a ‘substantia evidence’

standard), and has in no way been denied due

process of law...” Appendix B, infra, p. Sa.

That hearing which the Court felt (and stated) satisfied

the requirement of due process was held in May and June

1975. This was a little over three years and five months

after petitioner was terminated. Such a hearing did not and

could not satisfy the requirements of due process as man-

dated by New York law or by the Fourteenth Amendment.

Both Petitioner and Respondent had an interest in a timely

hearing. The availability of witnesses, the fresh memories

of the witnesses, and the decision-maker’s flexibility in fash-

ioning an appropriate or compromise remedy of lesser pun-

ishment-—were all seriously impaired by the delay of three

years. A finding that such a hearing satisfied the due pro-

cess protection of the statute and the Constitution was arbi-

trary and certainly discriminatory to the Petitioner.

Even where this Court has rejected the need for a hearing

prior to an “‘initial taking” of a property interest, the prin-

cipal rationale has been that a hearing would be provided

for before the taking became final. See North American

Cold Storage Co. v. Chicago, 211 U.S. 306, 53 L. Ed. 195.

29 S. Ct. 101 (1908) (seizure of food unfit for consump-

tion); Central Trust Co. v. Garvan, 254 U.S. 554, 65 L. Ed.

403, 41 S. Ct. 214 (1921) (seizure of property under Trad-

ing with the Enemy Act); Corn Exchange Bank vy. Coler,

280 U.S. 218, 74 L. Ed. 378, 50 S. Ct. 94 (1930) (seizure

of assets of an absconding husband); Phillips v. Commission-

er, 283 U.S. 589, 75 L. Ed. 1289, 51 S. Ct. 608 (1931)

(collection of a tax); Bowles v. Willingham, 321 U.S. 503,

88 L. Ed. 892, 64 S. Ct. 641 (1944) (setting of price regu-

lations); Fahey v. Mallonee, 332 U.S. 245, 91 L. Ed. 2030,

19

67 S. Ct. 1552 (1947) (appointment of conservator of assets

of savings and loan association); Ewing v. Mytinger & Cassel-

berry, 339 U.S. 594, 94 L. Ed. 1088, 70 S. Ct. 870 (1950)

(seizure of misbranded articles in commerce).

In the instant matter, not only did the Appellate Division

State that the post hearing was adequate, but they subse-

quently reversed the trial judge on the facts.

B. State Decision Not Based on

Adequate and Independent State Ground.

The decision by the Court of Appeals in the instant mat-

ter was not based on adequate and independent state grounds

which would dispose of the case without reaching the Fed-

eral questions involved. It is clear that this Court will not

allow frustration of the basic Federal constitutional guaran-

tees. The consideration of the question of what are ade-

quate independent grounds is in itself a federal question.

Henry v. Mississippi, 379 U.S. 443, 13 L. Ed. 2d 408, 85

S. Ct. 564 reh den 380 U.S. 926, 13 L. Ed. 2d 813, 85 S.

Ct. 878, and motion to set off costs den. 381 U.S. 908, 14

L. Ed. 2d 431, 85 S. Ct. 1528.

Petitioner in the present matter did not sleep on his

rights. He actively pursued them within the framework of

the practice in the State at that time. Petitioner has sought

reinstatement both administratively and judicially at all times

since January 1971. The matter was before the Supreme

Court on three different occasions, the Appellate Division

on two different occasions, as well as before the Court of

Appeals. The trial court on two occasions found for the

Petitioner. In its first opinion (Appendix E, infra), the

Court found that the failure to afford Petitioner a hearing

was arbitrary and capricious and a violation of due process

ie a me

20

requirements. After a trial, the Court found that Petition-

er’s absence from work was in “no sense” an absence with-

out explanation in terms of New York Civil Service Rule

5.3(d) and ordered Petitioner’s reinstatement. As previous-

ly noted this decision was reached over three years after

his termination and subsequently reversed by the Appellate

Division on the facts.

This matter took seven years to wend its way through

the administrative and judicial process. After seven years,

the Petitioner was informed for the first time, by the New

York Court of Appeals, that the New York Civil Service

Statutes of limitation precluded review by either an admin-

istrative or judicial agency. In construing the State statutues

of limitations, the New York Court of Appeals noted that

the Petitioner’s termination by the agency began the stat-

ute of limitations, so far as the admnistrative review was

concerned, while the denial of the reconsideration request

by the agency began the statute of limitations, as far as

judicial review was concerned, both to the detriment of

petitioner. This construction by the New York Court of

Appeals reduces the entire process to a contest of wits be-

tween the employee and the state agency. It then becomes

a gambling transaction where the employee must determine

on his own (without uniform criteria) when his dismissal

is “final,” and this determination may be completely dif-

ferent depending on whether judicial or administrative re-

lief is sought and the form of the action (writ of certio-

rari or mandamus). See Practice Commentary, Civil Prac-

tice Law and Rules, §217 (McKinney 1973).

Petitioner began protesting his dismissal through the State

Civil Service Commission. Althcugh this particular state

agency began acting on the Petitioner’s protest by arranging

a meeting between the Petitioner and Respondent, when

such meeting proved inconclusive, the Civil Service Com-

21

mission dismissed the appeal on the ground that the Peti-

tioner had voluntarily resigned and therefore the Commis-

sion was precluded from any action on his appeal. In dis-

missing the appeal, the Civil Service Commission was inter-

preting the provisions of a rule it had promulgated. No

issue of timeliness of the Appeal was raised by the Com-

mission. According to the calculation of the New York

Court of Appeals decision, however, Petitioner had lost

nearly three and one-half months of the four months stat-

ute of limitations period for judicial review of his termina-

tion when the Civil Service Commission dismissed his appeal.

While the purpose of a statute of limitations is to pro-

tect the respondent—State of New York—from stale claims,

in this instance, the New York statutes of limitation have

been interpreted to deny the Petitioner due process protec-

tion. The New York Court of Appeals ruled, in effect,

that the administrative agency’s delay in ruling on the Peti-

tioner’s appeal precluded the Petitioner from a judicial hear-

ing on his due process entitlement. Balancing the interest

in this case between the State’s intention to deny litigation

of claims brought by indifferent employees with the State’s

intention to afford State employees their full due process

rights, the application of the statutes of limitation by the

State Court of Appeals to dismiss the Petitioner’s appeal

is improper and does not preclude this Court’s review of

the Petitioner’s basic federal right to due process protection.

22

CONCLUSION

This Court should accept this Petition for a Writ of Cer-

tiorari in order to right the wrongs which have been inflict-

ed upon the Petitioner, and to further clarify when and how

due process protection is to be accorded a permanent State

employee, especially under the Arnett v. Kennedy, supra.

decision. This case further presents the important question

of the relationship between State administrative and judicial

agencies and whether the action of the administrative agency

can preclude judicial review of the State employee's due

process rights given under the Fourteenth Amendment.

Respectfully submitted,

__ eee

John |. Heise, Jr.

861 Pershing Drive

Silver Spring, Maryland 20910

Attorney for Petitioner

HEISE, JORGENSEN & STEFANELLI, P.A.

APPENDIX A

STATE OF NEW YORK

COURT OF APPEALS

No. 48

In the Matter of

Frank C. McGirr,

Appellant,

vs.

Division of Veterans Affairs,

Executive Department, State of

New York, et al.,

Respondents.

(48) James Roemer, Jr., Albany & Grover T. Odenthal,

Staten Island, for appellant.

Louis J. Lefkowitz, Attorney-General (Arlene Silberman

& Samuel A. Hirshowitz of counsel) for respondent.

FUCHSBERG, J.:

The threshold and dispositive question before us is whether

petitioner timely commenced this article 78 proceeding.

By registered letter dated January 12, 1972, petitioner

was advised by his employer, the New York State Division

of Veterans Affairs, that pursuant to rule 5.3(d) of the Rules

and Regulations of the Department of Civil Service (4 NYCRR

5.3[d]) he was deemed to have “resigned” his position as a

State Veterans Counselor.' The rule permitted the visitation

l Subsequently, when the present case was still wending its way

through the courts, we declared rule 5.3(d) invalid as in con-

travention of the statutory procedures contained in section 75

of the Civil Service Law (Marter of Johnson v. Director,

Downstate Med. Center, 41 NY2d 1061).

2a

of such consequences on an employee for absence without

leave and without sufficient explanation for a period in ex-

cess of ten working days.”

Petitioner sought reconsideration but, on February 15,

1972, was officially advised by the agency that it would

adhere to its determination. Before then, on February

10th, he had already appealed to the State Civil Service

Commission. Or. June 12, 1972, that appeal was dismissed

on the ground that it could not be brought from a “volun-

tary” dismissal. The commencement of the present pro-

ceeding followed on August 25, 1972.

The invocation by the petitioner of reconsideration by

the Division served as a demand upon that agency that it

act or perform a duty enjoined on it by law, in this case

that it reinstate him. Such a demand is a prelude to the

commencement of an article 78 proceeding in the nature

of mandamus. The denial of reconsideration contained in

the agency's letter of February 15, 1972 constituted a re-

jection of the demand and set in motion the time within

which judicial review had to be requested (Matter of Sirles,

49 AD2d 330, 332 affd. on opn. below 40 NY2d 950).

Thus, when this proceeding was commenced against the

Division on August 25, 1972, the four month period pre-

scribed by CPLR 217 had already expired.

The petitioner also claims that, because the Civil Service

Commission did not dismiss the appeal taken to it until

June 12, 1972, the commencement of the article 78 pro-

ceeding on August 25, 1972 was timely as against it. As

suming arguendo, that an appeal from the Division's decla-

2 Because the specific facts underlying this petitioner's absence

are to be found in the majority memorandum at the

Appellate Division (56 AD2d 653), we do not repeat them

here.

99

3a

ration that the petitioner had “resigned” was available di-

rectly to the Commission itself, in this case it was taken

too late.

Under Civil Service Law section 76, subdivison |, if an

employee elects to pursue the path of an administrative

appeal, it must be filed “in writing within twenty days af-

ter service of written notice of the determination. . . ™.

In the case before us, the advice of the original determina-

tion was given by the Director of the Division as early as

January 12th. However, notice of the appeal to the Civil

Service Commission was not served before February 10th,

the date of the writing by means of which it was commu-

nicated. Thus, that the appeal was not taken within the

twenty day period is incontrovertible. Moreover, the stat-

ute contains no provision for the tolling of the twenty day

limitation during the time that an aggrieved party may seek

reconsideration of its decision by the employing agency.

Consequently, administative review of the merits of the

agency's determination by the Civil Service Commission

having been time-barred, the attempt to resurrect the same

question by means of this article 78 quest for judicial re-

view of the Commission's dismissal of the belaied appeal

must fail (cf. Matter of Davis v. Kingsbury, 30 A.D. 2d

944, 945, affd. 27 N.Y.2d 567; Matter of Karaffa v. Si-

mon, 14 A.D. 2d 978, 979: Matter of Nelson v. Kelly, 4

AD2d 596, 598-599).

Finally, in the light of arguments presented on this ap-

peal, we take the opportunity to point out that Matter of

Johnson v. Director, Downstate Medical Center (41 NY2d

1061) by no means holds that an unexplained absence may

not be grounds for dismissal of an employee. Rather, the

thrust of our decision in that case is that the “full panoply

of procedural due process” required by section 75 of the

4a

Civil Service Law may not be circumvented by an adminis-

trative rule creating an irrebuttable presumption of resigna-

tion. The letter and spirit of the Civil Service Law inter-

dicts such a facile addition to the available means for bring-

ing about a termination of tenured public employment.

In any event, this proceeding being time-barred for the

reasons we have indicated, the order of the Appellate Divi-

sion should be affirmed.

Order affirmed, with costs. Opinion by Fuchsberg, J. All

concur.

Decided February 22, 1978

Sa

APPENDIX B

+ ia A - November 16, 1976.

2589 E In the Matter of Frank C. McGirr,

respondent, v. Division of Veterans

Affairs, Executive Department, State

of New York, et al., appellants.

Louis J. Lefkowitz, Attorney-General, New York, N.Y.

(Arlene R. Silverman and Samuel A. Hirshowitz of counsel),

for appellants.

Grover T. Odenthal, Staten Island, N.Y., for respondent.

In a proceeding pursuant to CPLR article 78 to review a

determination of appellant Votto, Director of the Division

of Veterans Affairs, the appeal is from a judgment of the

Supreme Court, Richmond County, dated February 23,

1976, which, after a hearing, inter alia, directed petitioner's

reinstatement to his position as a veteran’s counselor.

Judgment reversed, on the law and the facts, without costs

or disbursements, and proceeding dismissed on the merits.

Upon our second prior consideration of this matter, we

reversed a judgment and remanded to Special Term for res-

olution at a hearing of the question of fact as to whether

petitioner had complied with 4 NYCRR 5.3 (d) (Matter of

McGirr v Division of Veterans Affairs, 47 AD2d 541, 542).

Special Term, after noting its findings of fact Nous. 3, 4, 5

and 6, relating to the several telephone calls made by peti-

tioner reporting his illness, and his physician's letter setting

forth his medical condition, concluded that the absence

er

6a

“can in no sense be termed an absence ‘without an expla-

nation’ as specified in 4 NYCRR 5.3 (d).” That opinion

goes on to state:

“This determination, flowing necessarily from

the findings of fact made at the direction of

the Appellate Division, leaves nothing to be de

termined at any hearing which this Court might

order to be held before the Division of Veterans

Affairs.”

On the contrary, we find upon our review of the minutes

of the hearing that clearly petitioner was both “absent with-

out leave” and without a sufficient “explanation” for a

period in excess of 10 “work days.”

The evidence establishes that, on or about December 7,

1971, the petitioner made a reservation to go to Florida,

where he had owned a home for the past seven years.

Thereafter, on December 10, 1971, he visited his physician.

On December 13, 1971 petitioner reported to work as a

veteran's counselor at the Staten Island office of the Divi-

sion of Veterans Affairs. He made no mention to anyone

of his visit to the doctor or of any need for sick leave.

The next day, petitioner called his office and stated that

he was “sickly.” According to petitioner, he did not ad-

vise his office how long he expected to be on sick report.

Later that day he left for his home in Florida.

On December 20, 1971 the Division received a letter from

petitioner’s doctor stating that petitioner has been under his

care for a respiratory infection and that, in his opinion, his

health would be substantially benefited by the removal to

a warmer climate. On or about December 21, 1971, peti-

tioner again called his office to state he was “‘still ill.” He

Ta

did not mention that he was in Florida. According to the

petitioner, he did not adivse his office how long he expected

to remain absent.

On Monday, December 27, 1971, petitioner failed to report

to work. He did not call in sick or offer any explanation

for his absence. Two days later, on December 29, 1971,

a letter from the Deputy Director of the Division’s New

York City office was sent to the petitioner’s home on Sta-

ten Island. It requested that petitioner have his doctor sub-

mit a report indicating the diagnosis of petitioner’s present

illness. Petitioner testified that he received the letter in Flo-

rida on January 3 or 4, 1972 and that he sent a copy of

the letter to his doctor with a note asking the doctor to

“do as he chose to do with the letter.” Petitioner stated

that he did not request the doctor to do anything with the

letter.

A few days later, on January 7, 1972, petitioner called the

Albany office of the Division and asked to speak to a Mr.

Parkinson, the Division’s Director of Publicity. Mr. Parkin-

son was unavailable so petitioner spoke with Mr. Thomas

Manning, a Deputy Director of the Division. Petitioner was

not “sure” whether he told Mr. Manning that he was in

Florida. He did ask what could be done about arranging a

one or two month leave of absence, with or without pay.

Mr. Manning indicated that he thought that petitioner,

“probably [could] not get help.”

Thereafter, by letter dated January 12, 19/72, the petitioner

was advised that he had resigned his position as a Veterans’

Counselor pursuant to section §.3 (d) of the Rules and Reg-

ulations of the New York State Department of Civil Service.

Petitioner received the letter about the third week of Jan-

uary. On or about February 3, 1972 he received a copy

8a

of a letter dated January 13, 1972, which his doctor had

sent to the Division. The letter was generally sarcastic,

stating that “it is ridiculous for medical reports to be sent

to laymen”, and did not include any diagnosis of the peti-

tioiner’s alleged malady. Petitioner also received from his

doctor a medical report listing the results of a physical ex-

amination which had been conducted in December, 1971.

He said he forwarded this report to his union representative

but did not know whether the representative had ever brought

the report to the attention of the Division.

Upon the foregoing review of the evidence, it is obvious

that petitioner was absent without leave and without any

explanation therefor for at least a period of 10 work days.

Except for his call to Albany on January 7, 1972, petitioner

was not heard from by anybody in the Division from De-

cember 21, 1971 through the end of January, 1972. One

would expect that, at a minimum, a person with an ex-

tended illness would either “call in” once a week or advise

his office of the nature and extent of the illness. It strains

credulity to believe that the January 7, 1972 call to the Di-

vision’s Director of Publicity in Albany constituted notifica-

tion that the petitioner was still sick. Indeed, there is noth-

ing in the record to suggest that Mr. Manning, who took the

call intended for Mr. Parkinson, was told that the petitioner

was ill.

Under the facts of this case, Matter of Johnson v. Down-

state Med. Center (S2 AD2d 257) does not require petition-

er’s reinstatement. This Court held in Johnson (p. 369) that

section 5.3 (d) of the Ruies and Regulations of the Depart-

ment of Civil Service “as applied to * * * [the] petitioner”

therein, was unconstitutional. The basis of that ruling was

the fact that the petitioner therein had not been accorded

due process by reason of the f*>t that his employment had

9a

been terminated without his being allowed a hearing on the

validity of the reason for the termination.

In the case at bar, this court had remanded petitioner’s

CPLR article 78 proceeding to Special Term for a hearing

to resolve factual questions relating to petitioner’s absence.

Petitioner had previously obtained a judgment directing the

Division of Veterans Affairs to grant him a hearing, but

nevertheless appealed from the judgment because it did

not direct his reinstatement. A full hearing was held be-

fore Special Term in May and June, 1975, and a decision

favorable to petitioner was rendered on December 5, 1975.

Petitioner has acquiesced in having his case heard through

judicial rather than administrative proceedings, has received

a full hearing with a more favorable burden of proof re-

quirement (the Division had to satisfy a “preponderance of

the evidence”, rather than a “substantial evidence” standard),

and has in no way been denied due process of law. The

parties to a lawsuit are free to chart their own course and

may fashion the basis upon which a particular controversy

will be resolved (see Cullen v Naples, 31 NY2d 818).

MARGETT, Acting P.J.. HAWKINS and MOLLEN, JJ.,

concur.

RABIN, J., dissents and votes to affirm the judgment, with

the following memorandum:

I dissent and vote to affirm. In my opinion, Special Terr’s

finding, as the trier of the facts, is amply supported by the

record.

10a

{March 16, 1977]

At a Term of the Appellate Division

of the Supreme Court of the State

of New York, Second Judicial De-

partment, held in Kings County

on February 28, 1977.

HON. CHARLES MARGETT, Acting Presiding Justice,

HON. SAMUEL RABIN, )

HON. JOSEPH F. HAWKINS, ) Associate Justices

HON. MILTON MOLLEN, )

In the Matter of Frank C. McGirr, )

Respondent, ) Order on Appeal

Vv. ) from Judgment

) Civil Action or

Division of Veterans Affairs, Executive ) Proceeding

Department, State of New York, et al., )

Respondents. )

In the above entitled case, the above named Frank C.

McGirr, petitioner, having appealed to this court from a

judgment of the Supreme Court, Richmond County, dated

February 23, 1976, which, after a hearing, inter alia, directed

petitioner’s reinstatement to his position as a veteran’s coun-

selor; and the said appeal having been argued by Arlene R.

Silverman, Esq., of counsel for the appellant, and argued

by Grover T. Odenthal, Esq., of counsel for the respondent,

and due deliberation having been had thereon; and upon

this court’s opinion and decision slip heretofore filed and

made a part hereof, it is:

ORDERED that the judgment appealed from is hereby

reversed, on the law and the facts, without costs or disburse-

ments, and the proceeding dismissed on the merits.

ne, ee oe

lla

MARGETT, Acting P.J., HAWKINS and MOLLEN, JJ.,

concur.

RABIN, J., dissents and votes to affirm the judgment,

with a memorandum as contained in the opinion and deci

sion slip of the court herein, dated February 28, 1977.

Enter:

IRVING N. SELKIN

Clerk of the Appellate

Division

12a

APPENDIX C

OPINION

MATTER OF FRANK C. McGIRR Garbarino

Petitioner December 5 75

DIVISION OF VETERANS AFFAIRS S.P. No 353/1972

EXECUTIVE DEPARTMENT, STATE

OF NEW YORK et ano

Cross-appeals have been taken in this Article 78 pro-

ceeding from the judgment of this Court dated April 2,

1974 which directed the Division of Veterans Affairs to

grant petitioner a formal hearing pursuant to Section 75

of the Civil Service Law. The matter has been remitted

by the Appellate Division to this Court for a hearing on

certain questions of fact, and the hearing has been held.

On the basis of testimony brought forth at the hearing,

the Court makes the following findings of fact:

1. Petitioner has been a member of the New

York State Classified Civil Service, Competitive

Class since April 5, 1958 and has held a perma-

nent appointment as a Veterans Counsellor as-

signed to the Richmond County Office of the

Division of Veterans Affairs.

2. On December 14, 1971 petitioner was entitled

to 36 days of sick leave.

3. On December 14, 1971 petitioner telephoned

a fellow employee of the Division of Veterans

Affairs at its office in Richmond County and re-

ported that he was sick.

4. On December 20, 1971 petitioner again called

that office and again reported sick.

13a

5. The telephone calls by petitioner on December

14 and December 20, 1971 were made pursuant

to an established procedure for an employee to

report in sick.

6. On December 18, 1971, petitioner’s physician

sent a medical report concerning petitioners con-

dition to the Division. The Division acknowledged

receipt of this letter on December 29, 1971. In

the acknowledging letter, the Division stated “In

the event we are not satisfied with the severity

of your illness, we will have you examined by

a State Physician located at 270 Broadway, New

York, New York.”

7. On January 12, 1972, the Division informed

petitioner that he was deemed to have resigned

effective December 27, 1971 pursuant to 4

NYCRR 5.3 Subdivision (d).

8. On January 21, 1972, petitioner submitted a

written request to the Division for reconsideration

and on February 10, 1972 his attorney submitted

a similar request.

9. Reconsideration of the January 12, 1972

determination was refused by the Division on

February 15, 1972.

10. On February 10, 1972 an appeal before the

State Civil Service Commission was requested.

11. On June 12, 1972 the Civil Service Commis

sion declined to take action on the appeal on the

basis that there could be no appeal from a volun-

tary resignation.

l4a

On the basis of the above findings of fact especially those

numbered 3, 4, 5, and 6 the Court has no aliernative but

to determine that petitioner’s absence which commenced on

December 14, 1971 can in no sense be termed an absence

“without an explanation” as specified in 4 NYCRR 5.3(d).

This determination flowing necessarily from the findings of

fact made at the direction of the Appellate Division leaves

nothing to be determined at any hearing which this Court

might order to be held before the Division of Veterans Af-

fairs.

Judgment is accordingly granted to the petitioner rein-

stating him to his position with the Division of Veterans

Affairs.

Settle judgment on five days notice.

J. A. G.

J.S.C.

—

15a

At a Special Term, Part One, of the

Supreme Court, held in and for the

County of Richmond at the County

Courthouse in the City of New York

on the 23rd day of February, 1976.

PRESENT:

HON. JOHN A. GARBARINO,

Justice.

In the Matter of FRANK C. McGIRR, :

Petitioner, : COUNTER

: JUDGMENT

For a Judgment against

: SP No.

DIVISION OF VETERANS AFFAIRS : 353/1972

EXECUTIVE DEPARTMENT OF STATE

OF NEW YORK, FRANK V. VOTTO,

DIRECTOR, NEW YORK STATE DEPART-

MENT OF CIVIL SERVICE,

Respondents.

The above proceeding having been brought pursuant to Ar-

ticle 78 of the Civil Practice Law and Rules for a judgment

directing the respondents to reinstate petitioner in his posi-

tion as Veterans Counsellor, Division of Veterans Affairs,

Executive Department, State of New York, and to pay pe-

titioner, the salary for such position from December 29,

1971 to the time he is reinstated and this Court having

rendered judgment dated April 2, 1974 which directed the

Division of Veterans Affairs to grant petitioner a formal

hearing pursuant to Section 75 of the Civil Service Law

and cross appeals from this judgment having been taken

l6a

as a result of which the Appellate Division, Second Depart-

ment, remitted this matter to this Court for a hearing on

certain questions of fact and the hearing having been duly

held and the petitioner having appeared by GROVERT T.

ODENTHAL, ESQ. and the respondents having appeared

by LOUIS J. LEFKOWITZ, Attorney General of the State

of New York by ARLENE SILVERMAN, ESQ., of Coun-

sel, and the Court after due deliberation and on ail the

papers and proceedings heretofore had on the Sth day of

December, 1975 duly made and filed its decision in writ-

ing in favor of the petitioner and against the respondents

and directing entry of judgment as hereinafter provided,

it is

ORDERED AND ADJUDGED that petitioner be rein-

stated to his position with the Division of Veterans Affairs

and it is further

ORDERED AND ADJUDGED that B. Franklin Spencer, Esq.

84 Broadway Ave. East be appointed as referee to hear and

determine the sum due the petitioner, after declaration, all

offsets, deductions, liens etc. properly excluded pursuant to

the applicable provisions of law and Civil Service regulations,

and it is further

ORDERED AND ADJUDGED that the referee’s fees and

disbursements shall be borne equally by the parties.

Enter

/s/ John A. Garbarino

J.S.C..

17a

APPENDIX D

AD 2d A - October 22, 1974.

1797 E In the Matter of Frank C. McGirr,

appellant-respondent, v. Division

of Veterans Affairs, Executive

Department State of New York,

Frank V. Votto Director and New

York State Department of Civii

Service, respondents-appellants.

Fach, Sipp & Hail, Staten Island, N.Y. (Grover T. Odenthal

of counsel), for appellant-respondent.

Louis J. Lefkowitz, Attorney General, New York, N.Y.

(Arlene R. Silverman and Samuel A. Hirshowitz of counsel),

for respondents-appellants.

In a proceeding pursuant to article 78 of the CPLR to an-

nui a determination of respondent Frank V. Votto, Direc-

tor of the Division of Veterans Affairs, that petitioner’s ab-

sence from work constituted a resignation from his posi-

tion of veteran’s counselor, (1) petitioner appeals from a

judgment of the Supreme Court, Richmond County, dated

April 2, 1974, insofar as it fails to direct his reinstatement

to his position (the judgment directed the Division of Vet-

erans Affairs to grant petitioner a hearing) and (2) respon-

dents cross-appeal from the judgment in its entirety.

Judgment reversed, on the law, without costs, and proceed-

ing remitted to Special Term for a hearing in accordance

herewith.

This record presents a serious question of fact as to

whether petitioner complied with the requirements of sub-

division (d) of 4 NYCRR 5.3. He claims he called his of-

fice and reported sick, thereby providing an ongoing ex-

18a

cuse for his absence, sufficient under rule 5.3. Respond-

ents claim that when petitioner telephoned the office he

stated he would be out sick for the rest of the week;

that therefore his absence became unexcused as of the

Monday following his last telephone call; and that the ab-

sence continued unexcused for more than 10 days there-

after. This question of fact can only be resolved at a

hearing. Accordingly, it was error to grant judgment to

petitioner on the papers alone.

GULOTTA, P.J., MARTUSCELLO, LATHAM, CHRIST

and BENJAMIN, JJ., concur.

January 20, 1975. IN RE McGIRR v. DIV. 1797 E

OF VET. AFFAIRS,

VOTTO.

19a

At a Term of the Appellate Division

of the State of New York, Second

Judicial Department, held in Kings

County on January 20, 1975.

HON. FRANK A. GULOTTA, Presiding Justice,

HON. M. HENRY MARTUSCELLO =)

HON. HENRY J. LATHAM )

HON. MARCUS G. CHRIST )

HON. A. DAVID BENJAMIN )

Associate Justices

ee ee ee ee ee ee ee ee ee ee ee ee ee ee xX

In the Matter of Frank C. McGirr,

Appellant-respondent,

v. : Order on

: Appeals

Division of Veterans Affairs, Executive : from

Department State of New York, Frank V. : Judgment.

Votto Director and New York State

Department of Civil Service,

Respondents-appellants.

TD Oe ne eg A I ae ee x

In the above entitled cause pursuant to article 78 of the

CPLR to annul a determination of respondent Frank V.

Votto, Director of the Division of Veterans Affairs, that

petitioner’s absence from work constituted a resignation

from his position of veteran’s counselor, (1) the above

named Frank C. McGirr, petitioner, having appealed to

this court from a judgment of the Supreme Court, Rich-

mond County, dated April 2, 1974, insofar as it fails to

direct his reinstatement to his position (the judgment di-

rected ‘.. Division of Veterans Affairs to grant petitioner

a hearin; and (2) the above named Division of Veterans

20a 2la

Affairs, Executive Department State of New York et al., APPENDIX E

respondents in the court below, having cross-appealed from 5 p

the judgment in its entirety; and the said appeals having Hane C - of tl . e

been argued by Grover T. Odenthal, Esq., of counsel for “ ' Y - held i df .

the appellant-respondent and argued by Arlene R. Silver- . aie oo

the County of Richmond, at the

man, Esq., of counsel for the respondents-appellants, and

: ' ' Courthouse, St. George, Staten

due deliberation having been had thereon; and upon this

: ates oe Island, New York, on the 2 day

court's opinion and decision slip heretofore filed and made :

ney of April 1974.

a part hereof, it is

ORDERED that the judgment appealed from is hereby raSSaMe |

unanimously reversed, on the law, without costs, and pro- HON. JOHN A. GARBARINO

ceeding remitted to Special Term for a hearing in accord-

ance with the opinion and decision of the court herein, | JUSTICE.

dated January 20, 1975. | rs

| In the Matter of

Enter: | FRANK C. McGIRR

. Petitioner,

IRVING N. SELKIN 2: ) JUDGMENT

Clerk of the Appellate Division ) For a Judgment against

| - Index No. SP

) DIVISION OF VETERANS AFFAIRS 353/72

EXECUTIVE DEPARTMENT STATE OF

NEW YORK, FRANK V. VOTTO, Direc-

tor, NEW YORK STATE DEPARTMENT

OF CIVIL SERVICE’

Respondents.

‘

| The petitioner, FRANK C. McGIRR, having commenced

a special proceeding to compel the respondents to restore

petitioner to his Civil Service position as Veterans Coun-

selor, and to pay to him the salary for the period com-

mencing December 27, 1971 when he was wrongfully dis-

charged, and respondent having moved to dismiss the peti-

tion on the grounds that it was not brought within the

time prescribed by Section 217 of the Civil Practice Law

22a

and Rules, and this Court having denied this motion, which

denial was sustained by the Appellate Division by its order

of November 19, 1973, and respondents having moved to

restore the proceeding to the calendar of this Court and

for summary judgment, and the petitioner having cross-

moved for summary judgment, and this motion having reg-

ularly come on to be heard,

NOW, on the petition, the answer thereto, the memoran-

dums of law submitted by the attorneys for petitioner and

by the attorney for respondents, the affidavit of the peti-

tioner verified the 10th day of January, 1974, the affidavit

of Frank V. Votto verified the 21st day of December, 1973,

and the affidavit of Thomas J. Manning, verified the 4th

day of October, 1972 and the exhibit incorporated therein,

and on all the papers and the proceedings heretofore had,

and due deliberation having been had thereon, and a writ-

ten decision of this Court having been made therein and

filed on the Ist day of February, 1974 granting the respon-

dents’ motion to restore the proceedings to the Special

Term Calendar of this Court and granting petitioner’s cross-

motion to the extent of finding that petitioner’s two tele-

phone calls constituted an explanation of his absence within

the meaning of Rule 5.3d of the Rules and Regulations of

the Department of Civil Service, and the Division’s action

in declaring the alleged unauthorized absence to be a self-

executed resignation is arbitrary, capricious and an abuse of

discretion, and directing respondents’ Division of Veterans

Affairs to accord petitioner a hearing upon charges, and

directing the entry of judgment as hereinafter provided, it is,

ORDERED, ADJUDGED and DECREED, that judgment

be entered in favor of petitioner directing the respondents’

Division of Veterans Affairs within thirty (30) days of the

entry of this judgment to grant petitioner a formal hearing,

23a

pursuant to Section 75 of the Civil Service Laws of the

State of New York, and it is further

ORDERED, ADJUDGED and DECREED, that the Clerk

of this Court enter judgment as aforesaid, without the costs

or disbursements of this motion.

ENTER

/s/ John A. Garbarino

J.S.C.

Entered April 2, 1974

Augustine Casey

County Clerk, Richmond

24a

FRANK C. MC GIRR, Garbarino

Petitioner, February | 74

DIVISION OF VETERANS S.P. No. 353/1972

AFFAIRS, et al.,

Respondents.

Respondents’ motion to restore the above captioned pro-

ceeding to the Special Term calendar of this Court is granted.

Petitioner’s cross-motion is granted to the extent that the

Court will direct the respondent, Division of Veterans Affairs,

to accord petitioner a hearing upon charges. Petitioner’s

two telephone messages to the Staten Island office of the

Division — reporting his illness — constituted an “‘explana-

tion” within the meaning of the Rules for the Classified

Service (4 NYCRR 5.3[d]) and the question of the truth

or falsity of this explanation is not before the Court. The

Division’s action in declaring the alleged unauthorized ab-

sence to be a self-executed resignation is, on the pleadings

and affidavits constituting the record before this Court, ar-

bitrary and capricious, and an abuse of discretion. Funda-

mental fairness and due process dictate under the circum-

stances in this case that petitioner be accorded a hearing

upon charges and receive a determination thereon. This,

of course, will preserve petitioner’s right to appeal to the

State Civil Service Commission pursuant to Sec. 76(1) of the

the Civil Service Law and to have the Division(s) determina-

tion reviewed upon a full record. (See: Hayward v. Cor-

nelius, 30 A.D. 2d 901 and Cisco v. McAlevey, 42 A. D.

2d 567)

Petitioner’s cross-motion insofar as it seeks other relief

is denied at this time.

Settle judgment on notice.

J.S.C.

ot ae

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