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Supreme Court OKs Hearings for AWOL Workers : Labor: State employees are entitled to be heard before a dismissal. Justices deny right to full-scale proceedings after termination.

TIMES LEGAL AFFAIRS WRITER

In a victory for employees, the California Supreme Court ruled 6 to 1 Monday that state workers have a constitutional right to a neutral hearing before they may be dismissed for being AWOL for five straight working days.

The justices also said that after such a hearing, workers who are terminated have no further right to a full-scale evidentiary proceeding in which they may be represented by counsel, call witnesses or cross-examine adverse witnesses. The justices did not bar the state from holding some form of post-termination hearing if it wishes.

The decision sought to resolve widely conflicting rulings by state appeals courts struggling to balance the need for adequate procedural guarantees for employees facing the loss of a job against the public interest in promptly removing absent workers from state payrolls.

“In many ways, this is a major victory,” said Robert L. Mueller, a lawyer for the California State Employees Assn. “The problem with this law has been that it has been used to summarily terminate the ill, injured and handicapped, many of whom have medical documentation to support their absence. Now, they will have a chance to shove that documentation in the face of the state--and the result will be fewer terminations.”

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M. Jeffrey Fine, a lawyer for the state Department of Personnel Administration, said the ruling will be carefully studied. “You can be sure that we will implement whatever process is needed to comport with the decision,” he said.

According to lawyers, state-employee AWOL proceedings have been invoked in hundreds of cases in recent years. Unspecified but apparently substantial numbers of cities and counties have adopted similarly worded local laws and policies providing for AWOL terminations, they said.

At issue in the case was a state statute saying that absence without leave for five working days constitutes “automatic resignation” from state service. State officials have permitted appeals after termination, but only for reinstatement, not back pay.

Lawyers for Stanley Coleman Jr., a former telecommunications assistant for the state Department of General Services in Sacramento, challenged his dismissal for being AWOL, contending that he had been improperly denied a right to an formal evidentiary hearing to contest the charges--the same right a separate law gives to workers who face dismissal for disciplinary reasons.

In Monday’s ruling, the state high court, in a majority opinion by Justice Joyce L. Kennard, held that the constitutional right to due process entitles such workers to fair notice and an informal hearing before a neutral party to contest an impending termination.

Such a procedure would assure “the appearance and reality of fairness in the decision-making process” and “protect against factually unwarranted invocations of the statute,” Kennard wrote. Because AWOL cases are different from disciplinary proceedings, workers are not entitled to formal evidentiary hearings after they are held to have “resigned” because of unsupported absences.

Two court members dissented on sharply different grounds. Justice Allen E. Broussard agreed with the majority that workers should receive pre-termination hearings but dissented from the court’s refusal to grant post-termination proceedings as well. Justice Armand Arabian said there should be neither pre-termination nor post-termination hearings.


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