23 F.3d 685 (2nd Cir. 1994), 1108, O'Neill v. City of Auburn

Docket Nº:1108, Docket 93-7909.
Citation:23 F.3d 685
Party Name:Michael D. O'NEILL, Plaintiff-Appellant, v. CITY OF AUBURN; Guy Cosentino, Mayor of the City of Auburn; James E. Malone, City Manager for the City of Auburn; James Hutchinson, Ann Bunker, Councilors of the Auburn City Council; Andrew V. LaLonde, as Corporation Counsel for the City of Auburn and Other Unknown and Unnamed Participants In The Complain
Case Date:May 03, 1994
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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23 F.3d 685 (2nd Cir. 1994)

Michael D. O'NEILL, Plaintiff-Appellant,

v.

CITY OF AUBURN; Guy Cosentino, Mayor of the City of Auburn;

James E. Malone, City Manager for the City of Auburn;

James Hutchinson, Ann Bunker, Councilors of the Auburn City

Council; Andrew V. LaLonde, as Corporation Counsel for the

City of Auburn and Other Unknown and Unnamed Participants In

The Complained of Acts, Defendants-Appellees.

No. 1108, Docket 93-7909.

United States Court of Appeals, Second Circuit

May 3, 1994

Argued Feb. 28, 1994.

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Edward C. Hooks, Ithaca, NY (Laurie M. Johnston, Harris, Beach & Wilcox, Ithaca, NY, on the brief), for plaintiff-appellant.

Nicholas J. D'Ambrosio, Jr., Albany, NY (Michael J. Grygiel, Bond, Schoeneck & King, Albany, NY, on the brief), for defendants-appellees.

Before: KEARSE and LEVAL, Circuit Judges, and POLLACK, Senior District Judge. [*]

LEVAL, Circuit Judge:

This is an appeal from a grant of summary judgment dismissing an action brought under 42 U.S.C. Sec. 1983 by a terminated public official of Auburn, New York, alleging that his termination deprived him of property and liberty without due process of law. We affirm.

In September 1992, plaintiff-appellant Michael D. O'Neill was dismissed by the City of Auburn, New York, after nearly 15 years as City Engineer-Superintendent of Public Works. In recent years, O'Neill's service in that position had been marked by criticism in the press for alleged conflicts of interest, sometimes stemming from his private business interests; this criticism had included demands for his resignation. O'Neill also had been the subject of a grand jury investigation in 1988-89 and a City Ethics Board

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inquiry in 1990-91. The Auburn City Ethics Board had issued a report after investigation that O'Neill had violated the City Ethics Code (by receipt of a gift "under circumstances in which it could reasonably be inferred that the gift was intended to influence him ... in the performance of his official duties...."), and a grand jury had issued a report that O'Neill "may have created an appearance of impropriety."

Following his termination, O'Neill brought suit under 42 U.S.C. Sec. 1983, claiming that defendants, The City of Auburn, the City Manager, and other city officials, deprived him of property and liberty interests without due process of law as guaranteed by the Fourteenth Amendment. First, O'Neill claims that Section 75 of New York State Civil Service Law gives him a property interest in his job, entitling him to notice and a hearing before termination; he received no notice or hearing. Second, he claims the defendants made stigmatizing public statements at the time he was terminated; he contends these statements infringed his constitutionally-protected liberty interest in securing future employment and entitle him to a hearing to clear his reputation.

The district court granted defendants' motion for summary judgment as to both claims.

I. Deprivation of property without due process

  1. Property interest created by Sec. 75

    O'Neill claims deprivation of his property without due process because he was discharged from his position without notice and a hearing. When a governmental employee is found to have a "property interest" in continuation of his or her employment, the Due Process Clause of the Fourteenth Amendment forbids discharge unless the employee is afforded a pre-termination hearing. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985); Board of Regents v. Roth, 408 U.S. 564, 576-77, 92 S.Ct. 2701, 2708-09, 33 L.Ed.2d 548 (1972); Dwyer v. Regan, 777 F.2d 825, 831 (2d Cir.1985), modified, 793 F.2d 457 (2d Cir.1986). Property interests in employment "are not created by the Constitution, 'they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....' " Loudermill, 470 U.S. at 538, 105 S.Ct. at 1491 (quoting Roth, 408 U.S. at 577, 92 S.Ct. at 2709).

    O'Neill identifies New York State Civil Service Law Sec. 75(1)(c) as the source of his property interest in his job. This statute states in relevant part:

    A person ... shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges pursuant to this section [if that person is] an employee holding a position in the non-competitive class other than a position designated in the rules of the state or municipal civil service commission as confidential or requiring the performance of functions influencing policy, who ... has completed at least five years of continuous service....

    N.Y.Civ.Serv.Law Sec. 75(1)(c) (McKinney Supp.1993).

    O'Neill claims that his position is a non-competitive civil service title that was never classified as "confidential" or "policy-making" by the Auburn Civil Service Commission. It is undisputed that he held his position for "at least five years of continuous service." He therefore contends that Sec. 75(1)(c) gives him a property interest in retaining his job unless termination is preceded by notice and hearing. 1 He asserts that his termination was not preceded by notice of charges of incompetency or misconduct and a hearing thereon, and that his right to due process before deprivation of his property was therefore violated.

    We have previously held that Sec. 75 gives covered employees a property interest in their employment, so that they may not be terminated without notice and hearing. Dwyer v. Regan, 777 F.2d 825 (2d Cir.1985), modified, 793 F.2d 457 (2d Cir.1986); Berns

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    v. Civil Service Comm'n, 537 F.2d 714, 716 (2d Cir.1976), cert. denied, 430 U.S. 930, 97 S.Ct. 1549, 51 L.Ed.2d 774 (1977). Nonetheless, we reject O'Neill's claim because we find that the Auburn City Engineer-Superintendent of Public Works is an "independent officer" and is not covered by Sec. 75.

  2. Independent officer exception

    While Sec. 75(1)(c) expressly protects all civil service employees other than those in confidential or policy-making positions, defendants contend, and we agree, that the judicially-created independent officer exception exempts other positions from the protection of this statute.

    1. Definition of the exception

      The independent officer exception to Sec. 75(1)(c) originated in judicial interpretations of Sec. 22 of the Civil Service Law (now Sec. 75(1)(b)), a longstanding parallel provision, which gives military veterans and volunteer firefighters who hold civil service positions the right to notice and a hearing before discharge. This section on its face excludes from its protection only those persons employed as "private secretary, cashier or deputy of any official or department." Sec. 75(1)(b). However, in cases such as Mylod v. Graves, 274 N.Y. 381, 384, 9 N.E.2d 18 (1937) and O'Day v. Yeager, 308 N.Y. 580, 127 N.E.2d 585 (1955), the New York Court of Appeals has held that this section protects only subordinate employees, not those whose high level of responsibility qualifies them as independent officers. Id. at 585, 127 N.E.2d 585 ("The protection.... 'was intended to apply only to those holding positions of a subordinate nature,' and, consequently, to the list of persons specifically excluded from the protective coverage of the statute must be added those who are officials filling independent positions.") (quoting Mylod, 274 N.Y. at 384, 9 N.E.2d 18).

      O'Neill grounds his assertion of a property interest in the more broadly applicable Sec. 75(1)(c). He claims that the independent officer exception does not apply to Sec. 75(1)(c) because this section sets forth an explicit exclusion that applies only to employees "designated ... as confidential or requiring the performance of functions influencing policy." Id. The record supports O'Neill's contention that his position never received a designation as "confidential" or "policy-making." However, his argument that there is no...

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