# Petition — McGirr v. Division of Veterans Affairs > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1033%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 826 ## Text 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 ee OO ti ete « --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1033%3A1. Public record. Not legal advice.