McGowan v. Blum, 43 N.Y.2d 767 (1977)
A civil service employee facing disciplinary action is entitled to a fair hearing, but the hearing may proceed in the employee’s absence if they or their counsel refuse to participate after objecting to jurisdiction, provided the determination is supported by substantial evidence and the penalty is not excessive.
Summary
This case concerns a caseworker, McGowan, who was deemed to have resigned due to excessive absences. After initial legal proceedings, the court ordered a fair hearing. McGowan was then served with charges related to lateness, absences, and unauthorized absence. McGowan’s counsel claimed a lack of jurisdiction and refused to participate in the hearing. The hearing proceeded in their absence, and McGowan was dismissed. The Court of Appeals affirmed the dismissal, holding that McGowan was not deprived of a fair hearing, as the determination was supported by substantial evidence and the penalty was not excessive.
Facts
Respondent notified appellant by letter dated December 23, 1971, that his absence since November 23, 1971, was deemed a resignation pursuant to civil service rules.
Appellant initiated an Article 78 proceeding seeking reinstatement.
The court ordered a hearing per Section 75 of the Civil Service Law.
Respondent served charges and specifications related to excessive lateness, absences, and unauthorized absence.
Procedural History
An Article 78 proceeding was initiated; the court ordered a hearing.
A second Article 78 proceeding was filed when the hearing was not promptly scheduled; the court ordered the hearing to be conducted within ten days.
After a hearing where the employee’s counsel refused to participate, the employee was dismissed.
The Appellate Division affirmed the dismissal.
The Court of Appeals affirmed the Appellate Division’s order.
Issue(s)
Whether the respondent deprived appellant of a fair hearing by proceeding with the hearing in the absence of appellant and his counsel after counsel claimed lack of jurisdiction and refused to participate.
Whether the respondent’s determination sustaining the charges was supported by substantial evidence and whether the penalty of dismissal was excessive.
Holding
No, because there was no showing that appellant was deprived of a fair hearing, and there was no error in proceeding with the hearing after counsel claimed lack of jurisdiction and refused to participate.
Yes, because respondent’s determination sustaining the charges was supported by substantial evidence, and the penalty of dismissal was not in excess of jurisdiction, in violation of lawful procedure, arbitrary, or an abuse of discretionary power.
Court’s Reasoning
The Court relied on precedent, citing Matter of Sowa v Looney, 23 NY2d 329, 333-334, stating there was no showing that appellant was deprived of a fair hearing. The Court further supported its holding by citing Matter of Grottano v Kennedy, 5 NY2d 381, 388-389, stating that there was no error in proceeding with the hearing in the absence of appellant and his counsel after counsel claimed lack of jurisdiction and then refused to participate. The Court stated that to comply with the court order and with the provisions of section 75 of the Civil Service Law, respondent necessarily gave to appellant written notice of the proposed removal or other disciplinary action, as well as the reasons therefor, and furnished him with a copy of the charges preferred. The Court found that the hearing was conducted 13 days after said notice and service. Finally, the Court considered Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231, when it decided the penalty imposed was not excessive: “Since respondent’s determination sustaining the charges was supported by substantial evidence and since the penalty of dismissal as imposed was not in excess of jurisdiction, in violation of lawful procedure, arbitrary or in abuse of discretionary power, there was no alternative but to confirm”.