There are no written standards regarding the factors or criteria to be considered in making such a determination. In accordance with these procedures, the officer has a right of access to his complete medical records, prior to the initial Medical Board examination.
The officer at issue is examined by the Medical Board of three doctors, generally including one psychiatrist. The Medical Board is given the Psychological Services Division file and any materials the officer himself may submit. The examination is not recorded verbatim. The Medical Board determines whether the officer is "mentally incapacitated for the performance of duty and ought to be retired." The Medical Board only recommends retirement if incapacity is established by a preponderance of the evidence. The officer may not be represented or accompanied by either a medical or a legal professional.
The Medical Board may recommend to the Trustees retirement of the officer based on a finding of "mental incapacitation" for police work. The Trustees, as a matter of law, must accept the factual findings of the Medical Board and may not interview the officer. The officer is not allowed to present his case to the Trustees. The officer may submit written evidence to the Trustees concerning his disagreement with the Medical Board's findings. Based on the reported findings, the Trustees must either vote for retirement or remand the matter to the Medical Board for reconsideration. The Trustees may only remand the case if it determines that there are procedural irregularities, the recommendation is not supported by competent evidence, or that new evidence supports reconsideration. The officer is not entitled to a pre or post-deprivation hearing.
Upon a final determination by the Trustees, plaintiff has the right to judicial review via an Article 78 proceeding in which he can argue that the Trustees's decision was arbitrary or capricious, or contrary to law. N.Y.C.P.L.R. §§ 7803, 7804. An Article 78 proceeding does not lie, however, "to challenge the constitutionality of a legislative enactment." Ames Volkswagen, Ltd. v. State Tax Comm'n, 47 N.Y.2d 345, 348, 391 N.E.2d 1302, 418 N.Y.S.2d 324 (1979). The appropriate remedy is a declaratory judgment action. Id.
D. Coffran's Suggested Procedures
Coffran argues that these procedures do not provide for the following things: a right to have counsel personally appear on the individual's behalf; a right to have medical professional testify orally on the individual's behalf; a full and fair pre-termination opportunity to rebut the recommendation for an involuntary retirement; adequate notice of the standard for determining mental incapacity for police work; and a verbatim record of the proceeding to ensure fairness and allow for meaningful judicial review. There is no adversary hearing afforded to the officer either before or after retirement. Coffran maintains that the failure to provide these safeguards violates his due process rights.
Coffran refers to the procedures outlined in several comparable New York State statutes to point out the constitutional insufficiency of defendants' procedures. Coffran urges that it is against this background that defendants' procedures must be evaluated. Section 72 of the New York Civil Service Law authorizes involuntary medical leave for psychiatric inability to perform a job, which is comparable to the forced retirement at issue here. Section 72 allows termination of the employee if that employee is not re-instated within one year. Coffran notes that the procedures established in Section 72 were found to be constitutionally inadequate by Judge Weinfeld, in Snead v. Dept. of Social Services, 355 F. Supp. 764 (S.D.N.Y. 1973). See supra note 1. Judge Weinfeld determined that the procedures set down in section 72 did not comport with a tenured employee's property and liberty interests in continued employment. Id. at 773. Ultimately, the procedures in section 72 were amended to parallel those in section 75 to pass constitutional scrutiny. See Richardson v. County of Suffolk, 151 Misc. 2d 378, 381, 573 N.Y.S.2d 348, 350 (Suffolk Cty. 1991). Therefore, Coffran argues that the procedures laid down in New York Civil Service Law section 75, governing "Removal and other disciplinary action" contain the Constitutionally required procedures.
Section 73 of the New York Civil Service Law allows the termination of an employee who has been absent from the job for over a year and is physically unable to perform the job. The New York Court of Appeals, in Prue v. Hunt, 78 N.Y.2d 364, 369, 575 N.Y.S.2d 806, 581 N.E.2d 1052 (1991), has held that, in addition to a post-termination hearing, some pre-termination notice and opportunity to be heard must be accorded as a matter of due process, before an employee can be terminated under section 73.
Section 75 of the New York Civil Service Law governs removal of an employee for misconduct. The procedures required by section 75 include notice of charges, reasonably discovery, the right to representation, a record of the proceedings, and a written determination. Coffran argues that he is entitled to at least these same procedures.
E. What Process is Due?
While Coffran has admittedly been deprived of significant liberty and property interests, the defendants' procedures may still comport with due process, such that Coffran does not have a claim. According to the rule laid down by the Supreme Court, what constitutes fair process varies from case to case. The Court must weigh 1) the importance of the individual interest involved, 2) the value of specific procedural safeguards to that interest, and 3) the governmental interest in fiscal and administrative efficiency. See Mathews v. Eldridge, 424 U.S. 319, 336, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).
Specifically with regard to termination of a tenured public employee, the Supreme Court has laid down procedural requirements: the employee must be given pre-termination notice of the basis for his termination, and should he afforded a pre-termination opportunity to respond to those charges. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 543, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985). The employee need not necessarily be given a full, formal hearing before termination. See id. at 546.
As a general rule, where it is feasible a pre-deprivation hearing should be provided before taking the property, irrespective of the adequacy of post-deprivation remedies. Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975, 987, 108 L. Ed. 2d 100 (1990). The duty to provide such a hearing arises when the deprivation is foreseeable, it is possible to conduct a pre-deprivation hearing, and the conduct is authorized by the government. See 110 S. Ct. at 989-990.
Lenihan v. New York, 636 F. Supp. 998 (S.D.N.Y. 1985), presented the Court with a problem very similar to the one at issue. In Lenihan, a black female police officer was the subject of an involuntary psychiatric retirement survey, just as Coffran was in the instant case. The Court declined to reach the question of whether due process required a full adversarial hearing, because he could decide the case on another basis. See id. at 1019. However, the Court noted that a "full adversary hearing might well be required" in a situation such as that one--where a finding of mental illness was made without affording the "subject an 'opportunity to meet the charge by confrontation in an adversary hearing.'" See id. at 1018 (quoting Lombard v. Board of Education, 502 F.2d 631, 637-38 (2d Cir. 1974)).
Snead v. Dept. of Social Services; 355 F. Supp. 764, 772 (S.D.N.Y. 1983), which analyzed the constitutionality of New York Civil Service Law section 72 procedures, also supplies guidance to this Court. In Snead, Judge Weinfeld made the following observations:
There can be little doubt that the doctor's and appointing authority's ultimate conclusions as to mental fitness are predicated in part upon their judgments concerning the truth or falsity of the charges which prompted the examination. To this extent, the inquiry is factual in the traditional sense, and there is no reason for believing that a psychiatric examination is an appropriate means of resolving such factual disputes. At the interview the employee is placed in a position of having to explain incidents charged by accusers he is not permitted to confront . . . . He has no opportunity to present witnesses who might rebut his accusers or to retain the assistance of counsel in the preparation or presentation of his case. Unless doctors are deemed to possess an omniscience which our legal system refuses to attribute to the most experienced judges, they cannot be expected to make fair and accurate factual determinations under such circumstances. Even to the extent that the ultimate determination of mental fitness depends upon the judgment of a doctor based exclusively on his observations of the employee at the examination, fairness requires that the employee have an opportunity to challenge the doctor's conclusions and present his own medical evidence. Our jurisprudence does not recognize the opinion of any individual expert as infallible; professional judgments concerning mental fitness are just as likely to differ as the observations of layman regarding simple issues of fact.
355 F. Supp. at 772. See supra note 1.
Applying these principals to the procedures followed by defendants in Coffran's case, Coffran was entitled to greater process than he received. Coffran was deprived of very significant interests when he was retired. Procedural safeguards, particularly a chance to present and argue his position on the correct characterization of events leading to his retirement, were crucial to protecting these liberty and property interests. Even more importantly, there was no overwhelming administrative or fiscal need for the Police Department to retire Coffran without providing him with a hearing. Coffran could easily have remained on restricted duty status pending a hearing regarding his case.
The cases cited by defendants do not persuade this Court otherwise. Defendants urge that McDarby v. Dinkins, 907 F.2d 1334 (2d Cir. 1990), controls this case and requires a finding that defendants' procedures comport with due process. In McDarby, the Court reviewed the same procedures at issue here and held that due process required no more than the Medical Board examination, the Trustees review, and reconsideration if there was new evidence or procedural irregularity. Id. at 1337. This Court finds McDarby to be quite different than the case at bar, however. In McDarby, the issue was whether the plaintiff was entitled to an Accidental Disability pension or an Ordinary Disability Pension. Under an Accidental Disability Pension, the individual is paid a higher proportion of his previous salary. In either case, McDarby was going to be retired--the property interest solely related to the amount of pension at stake. This Court finds that that monetary interest is entitled to less procedural protection than Coffran's more significant property and liberty interests at stake here.
Defendants also heavily depend on Basciano v. Herkimer, 605 F.2d 605 (2d Cir. 1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858 (1979). In Basciano, the issue was whether the procedures regarding a post-retirement application for an Accidental Disability Pension comported with the requirements of due process. Again, that case involved solely a monetary, post-retirement interest, far less significant than Coffran's property and liberty interests at stake here.
Defendants urge that due process is afforded in that Coffran can argue his side to the Medical Board in written submissions. This, defendants argue, satisfies the minimal procedural due process requirements. Defendants argue that Basciano controls this issue and holds that in a medical determination, written evidence is enough to satisfy due process. Basciano, 605 F.2d at 611. This Court reiterates the basic tenet about due process--"due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. Due process is flexible and calls for such procedural protections as the particular situation demands." Id. at 609 (citations omitted). Under the circumstances of this case, "flexibility" requires more than the City afforded Coffran. As this Court noted earlier, the accidental disability benefits at issue in Basciano are not as substantial as the property and liberty interests implicated hero by an involuntary psychiatric retirement. Finally, while the "medical determination" made on written evidence may be sufficient for a physical disability, it is not sufficient for the more tenuous determination of a mental disability. This Court agrees with the opinions expressed in Lenihan and Snead--a finding of mental incapacity requires more process than was afforded to Coffran in this case.
This Court finds that Coffran's due process rights were violated when he was subjected to an involuntary psychiatric discharge without the opportunity for a pre-deprivation adversary hearing. The procedures utilized by defendants were unconstitutionally applied in Coffran's case. The Court orders the defendants to provide Coffran with process equivalent to that required under the New York Civil Service Law, section 75.
For the reasons expressed above, plaintiff's motion for summary judgment on its complaint is granted. Defendant's cross motion for summary judgment is denied. The Court orders the defendants to provide Coffran with process equivalent to that required under the New York Civil Service Law, section 75. The Court further orders this case closed and directs to clerk to remove it from the active docket.
Dated: New York, New York
January 7, 1994
JOHN F. KEENAN
United States District Judge