Seasonal employees not entitled to a §75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements

Seasonal employees not entitled to a §75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements
Edward Carter, et al v Incorporated Village Of Ocean Beach, USCA, Second Circuit 10-0740-cv*

Carter and his co-plaintiffs [hereinafter "Carter"] sued the Village and certain of its officials, alleging that they were unlawfully terminated from their respective seasonal police officer positions. They also alleged that their termination was in retaliation for reporting misconduct within the department in violation of the First, Fifth, and Fourteenth Amendments and that certain of the defendants made “derogatory statements” about them.

The federal district court ruled that Carter’s claims failed as a matter of law, concluding that Carter did not engage in “constitutionally protected speech” and thus could not establish First Amendment claims. The court said that “even if [Carter's] factual claims were credited in full, they established only that [Carter] spoke “pursuant to their official duties” and thus “not . . . as citizens for First Amendment purposes.”

The district court also ruled that Carter had not suffered a deprivation of either a protected liberty or property interest.

The Court of Appeals affirmed the lower court’s decision, holding that Carter’s allegations establish no more than that [the plaintiffs] reported what they believed to be misconduct by a supervisor up the chain of command—misconduct they knew of only by virtue of their jobs as police officers and which they reported as “part-and-parcel of [their] concerns about [their] ability to properly execute [their] duties.”

Speech, said the court, “that owes its existence to a public employee’s professional responsibilities” is made “pursuant to” that employee’s “official duties.” Accordingly, the Circuit Court concluded, Carter was not engaging in constitutionally protected speech at any relevant time and cannot make out a First Amendment claim.

As to Carter’s claim that he was deprived of a protected property interest without due process of law, the Circuit Court of Appeals said that “To state a claim for deprivation of property without due process of law, a plaintiff must, as a preliminary matter, ‘identify a property interest protected by the Due Process Clause,’” citing Harrington v County of Suffolk, 607 F.3d 31.

However, to demonstrate a property interest in public employment, the plaintiff must have “more than a unilateral expectation of” continued or future employment but instead “a legitimate claim of entitlement to it.”

Carter, said the court, established no such “claim of entitlement” in that the record establishes that all of the plaintiffs in this action were all at-will, part-time, seasonal employees who had no contractual or other basis for asserting any “entitlement” to continued or future employment.

Carter had also contended that he was entitled to a pretermination hearing in accordance with Civil Service Law §75(1)(c). However, said the court, only certain individuals who have “completed at least five years of continuous service” are entitled to such administrative due process by operation of law. In this instance, said the Circuit Court, the district court had determined that no plaintiff was employed “continuously” for a five year period, and, accordingly, that §75(1)(c) provides no support for plaintiffs’ claims.”

Finally, as to Carter’s allegations of a so-called “stigma plus” deprivation of constitutionally protected right, stigma plus’ refers to a claim brought for injury to one’s reputation (the stigma) coupled with the "deprivation of some ‘tangible interest’ or property right (the plus), without adequate process."

The Circuit Court of Appeals agreed with the district court’ holding that even assuming a “deprivation” occurred in this instance – "that is, assuming plaintiffs could establish the 'stigma' and the 'plus' – the claims would nonetheless fail because plaintiffs were afforded 'adequate process' in the form of a post-deprivation Article 78 hearing in state court."

The Circuit Court explained that “where, as here, plaintiffs are ‘at will’ government employees raising stigma-plus claims, our law makes clear that 'due process does not require a pre-termination hearing,' and access to post-termination process, such as an Article 78 hearing, is sufficient to satisfy constitutional requirements."

* N.B. This ruling is a Summary Order. Rulings by summary order do not have precedential effect.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/596b4436-f8b9-4643-82a9-59e7edb21841/3/doc/10-0740_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/596b4436-f8b9-4643-82a9-59e7edb21841/3/hilite/
.

Discipinary charges filed against employee for off-duty misconduct

Discipinary charges filed against employee for off-duty misconduct
Cannata v Safir, 269 AD2d 327

The Appellate Division, First Department did not have any difficulty in sustaining the decision of the Police Commissioner to dismiss New York City police officer Michael Cannata based on his finding that Cannata, while off-duty had:

1. Refused to move his illegally parked car when asked to do so by a Yonkers police officer;

2. Acted in a rude and aggressive manner, making racial remarks about the police officer; and

3. Lied about his conduct during the departmental investigation and disciplinary hearing.

Commenting that the commissioner’s determination was supported by substantial evidence, including the testimony of numerous Yonkers police officers, the Appellate Division said that there was no basis to disturb the commissioner’s credibility determinations.

Under the circumstances, the court said that "the penalty of dismissal does not shock our sense of fairness."

==============================

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1272 page e-book. For more information click on http://thedisciplinebook.blogspot.com/

==============================

Evidence lawfully obtained may be used to initiate an investigation of an employee even if similar information was received in violation of law

Evidence lawfully obtained may be used to initiate an investigation of an employee even if similar information was received in violation of law
Matter of Lomax v Kelly, 2011 NY Slip Op 01894, Appellate Division, First Department

Richard Lomax, a New York City probationary police officer, was off-duty with a fellow officer when the vehicle he was driving skidded on ice and rear-ended another car. Lomax called 911 to report the accident.

The occupants of the other vehicle, however, attacked the officers resulting in Lomax sustaining serious head injuries.

In the course of prosecuting the assailants, an Assistant District Attorney discovered that Lomax's medical records indicated that he was intoxicated at the time of the accident. This was reported to a NYPD sergeant, who then reported the finding to the Internal Affairs Bureau and ultimately Lomax was terminated.

Lomax challenged his dismissal from his position. In considering Lomax’s appeal, the Appellate Division said that “Even assuming that the Assistant District Attorney violated the Health Insurance Portability and Accountability Act of 1996 [HIPPA]* upon disclosing the contents of [Lomax’s] medical records to the NYPD, [NYPD] properly relied on records lawfully obtained from an independent source to conduct the [Internal Affairs] investigation.”

The Appellate Division, sustaining his termination as a probationary employee, ruled that the medical records used by NYPD showing that Lomax was driving while intoxicated provided “a rational basis for his dismissal as a probationary police officer and established that the termination was not made in bad faith.”

* N.B. As to such disclosure by the Assistant Attorney General, HIPPA’s privacy rules require “that health plans, health care clearinghouses, and certain health care providers guard against misuse of individuals' identifiable health information and limit the sharing of such information” [see Public Law 104-191; Title II, Subtitle F; Part C--Administrative Simplification, §1171, Definitions, posted on the Internet at http://www.cms.gov/HIPAAGenInfo/Downloads/HIPAALaw.pdf ].

The Lomax decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01894.htm
.