Name-clearing hearings

Name-clearing hearings
Aquilone v City of New York, 262 AD2d 13, Motion for leave to appeal denied, 93 NY2d 819

A public employee who has been terminated from his or her position may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual.

The Aquilone case addresses whether a retiree who continues to work as a consultant to the employer is entitled to a name-clearing hearing if his or her behavior prior to retirement is criticized in an investigatory report, putting his or her consulting relationship in jeopardy.

Edward Aquilone, a former Executive Director of Personnel for the New York City Board of Education, won a court order in state Supreme Court directing the school board to hold a name-clearing hearing, only to have the order vacated by the Appellate Division.

Aquilone retired from his position in 1989. Two years later, the Deputy Commissioner of Investigation issued a report that concluded that Aquilone had participated in a cover-up of sexual misconduct involving a fellow employee. The report said that Aquilone appointed friends of the employee to a hearing panel to guarantee a result favorable to the accused and “ensure the proceeding’s secrecy”. The report alleged that Aquilone neglected to give a record of the hearing to the Board’s Office of Personnel Security or log the file into that office’s computer system.

Noting that Aquilone had already retired, the deputy commissioner’s report suggested that suspension or termination of [Aquilone] occasional consulting jobs with the board would constitute “appropriate disciplinary action.”

A four-judge panel of the Appellate Division, 1st Department, ruled that because Aquilone had been retired for two years when the stigmatizing allegations were made, and he was not fired, suspended or demoted, he is not entitled to a name-clearing hearing.

The court ruled that a name-clearing hearing was not appropriate because such a hearing “is a remedy for the deprivation of a person’s due process right when an employee is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence,” citing Donato v Plainview-Old Bethpage School District, 96 F.3d 623, cert. denied 519 US 1150.

In addition, the Appellate Division commented that defamation standing alone does not constitute a deprivation of a liberty interest protected by the due process clause -- some “stigma plus” must be shown before it rises to the level where the individual’s constitutional rights may have been adversely affected.

The court also cited Martz v Inc. Vill. Of Valley Stream, 22 F.3d 26, in which the Second Circuit U.S. Court of Appeals said:

in the context of defamation involving a government employee, defamation ... is not a deprivation of a liberty interest unless it occurs in the course of dismissal or refusal to rehire the individual as a government employee or during termination or alteration of some other legal right or status ... the “plus” is not only significant damage to a person’s employment opportunities, but dismissal from a government job or deprivation of some other legal right or status.

In addition, the court pointed out that reports such as that issued by the deputy commissioner are protected by an “absolute privilege,” referring to the Court of Appeals’ ruling in Ward Telecommunications and Computer Systems Inc. v State of New York, 42 NY2d 289.

In the Ward case, the Court of Appeals -- New York State’s highest court -- ruled that “official ordered reports issued on behalf of the State Comptroller by the Division of Audit and Accounts are subject to an absolute privilege in any action for defamation based on the content of such reports.”

The rationale for this, said the court, was that the public’s interest demands that there be no legal or practical constraint placed on the content of the Comptroller’s reports or deterrent to their availability for public scrutiny.

Applying this rationale to Aquilone’s situation, the Appellate Division said that “the same rule must apply to the results of an official investigation into cover-up of a sex crime committed by a public employee.”
NYPPL