MATTER OF SWINTON v. Safir

• Decision Date: 19 October 1999
• Citation: 93 N.Y.2d 758,720 N.E.2d 89,697 N.Y.S.2d 869
• Parties: In the Matter of LUTHER SWINTON, JR., Appellant, v. HOWARD SAFIR, as Police Commissioner of the City of New York, Respondent.
• Court: New York Court of Appeals Court of Appeals

93 N.Y.2d 758

720 N.E.2d 89

697 N.Y.S.2d 869

In the Matter of LUTHER SWINTON, JR., Appellant, v. HOWARD SAFIR, as Police Commissioner of the City of New York, Respondent.

Court of Appeals of the State of New York.

Argued September 14, 1999.

Decided October 19, 1999.

Carroll & Friess, New York City (Rosemary Carroll of counsel), for appellant.

Michael D. Hess, Corporation Counsel of New York City (Sharyn Rootenberg and Larry A. Sonnenshein of counsel), for respondent.

Chief Judge KAYE and Judges BELLACOSA, SMITH, CIPARICK, WESLEY and ROSENBLATT concur.

OPINION OF THE COURT

LEVINE, J.

Petitioner, while a probationary police officer in the New York City Police Department, was terminated from that employment following an investigation by the Department's Internal Affairs Bureau (IAB) of a confrontation he had with a woman at his apartment. Upon leaving the apartment, the woman, whom he had previously dated, made 911 calls for help and told the responding officers that petitioner had assaulted and attempted to rape her. She confirmed this in an interview with investigating officers but expressed a desire to drop all charges because she "felt sorry" for petitioner. Later, she retracted her accusation and denied that any incident occurred.

Upon the completion of its investigation, IAB issued a report in which it concluded that the incident had in fact occurred as the woman originally related, and that petitioner had misrepresented the facts in responding to questions during the investigation. This was based not merely on an evaluation of the credibility of the woman's initial statements and subsequent recantation. In addition, IAB identified conflicts between petitioner's version and the observations of the officers who responded to the 911 call, and significant discrepancies between the sequence of events petitioner related and the automatically recorded times of the 911 calls.

Formal disciplinary charges of attempted rape, assault and making false statements to IAB investigators were brought against petitioner. Additionally, IAB recommended his dismissal. That recommendation was approved at various levels of command, up to the Police Commissioner. Termination of petitioner's probationary employment followed. Three weeks later, a record of the disciplinary charges and their resolution by his dismissal were placed in his personnel file.

Petitioner then brought this CPLR article 78 proceeding in which he challenges the Police Department's determination of his misconduct and discharge on the grounds that the Department's action was arbitrary, capricious and racially discriminatory, requiring annulment and reinstatement as a police officer. In one additional cause of action, petitioner alleges that his personnel records contained the findings of misconduct and will be disclosed to prospective employers, entitling him to a name-clearing hearing. We granted petitioner leave to appeal from the Appellate Division's affirmance (255 AD2d 193) of Supreme Court's dismissal of the petition.

Petitioner's grounds for annulling the Police Department's termination are without merit. He was a probationary police officer at the time of his dismissal. While in that status, he "may be dismissed for almost any reason, or for no reason at all" (Matter of Venes v Community School Bd. of Dist. 26, 43 NY2d 520, 525

). As a probationary employee, petitioner had no right to challenge the termination by way of a hearing or otherwise, absent a showing that he was dismissed in bad faith or for an improper or impermissible reason (see, Matter of York v McGuire, 63 NY2d 760, 761; Matter of Anonymous v Codd, 40 NY2d 860). Petitioner failed to demonstrate either.

The Department was not compelled to accept the credibility of petitioner's former girlfriend's recantation. Moreover, the IAB's conclusion that petitioner was dishonest in statements to police investigators was unrelated to her varying versions of the incident. Therefore, there was a basis for dismissal independent of the woman's accusations and recantation. Likewise, petitioner failed to make any showing of racial discrimination because there was no proof of differential treatment for the same or similar misconduct.

A more difficult question is posed by petitioner's demand for a name-clearing hearing.¹ Petitioner has made at least a preliminary demonstration that his personnel file includes findings of attempted rape and assault as well as dishonesty to IAB investigators, resulting in his dismissal. Respondent's answer "admits that petitioner's personnel record indicates an investigative finding that petitioner made false statements and that there was sufficient evidence to substantiate the allegations of misconduct" (i.e., the previously described felony and prevarication charges) (emphasis supplied). These findings, of criminality and immoral and dishonest conduct, are stigmatizing in the constitutional sense because of their inevitable effect, if revealed, of foreclosing employment opportunities in petitioner's chosen field of law enforcement (see, Board of Regents of State Colls. v Roth, supra, 408 US, at 573

). Certainly, petitioner's personnel file contains far more serious charges than that of individual or isolated instances of bad judgment or incompetent performance of duties, correctable by learning from one's mistakes, which are not "stigma[s] of constitutional proportions" (Matter of Petix v Connelie, 47 NY2d 457, 460; see, Donato v Plainview-Old Bethpage Cent. School Dist, 96 F3d 623, 630 [2d Cir]).

Thus, petitioner has established "stigma plus" in this case— governmental defamatory action (if untrue) and, in conjunction therewith, loss of employment—constituting two of the necessary elements of a due process liberty interest entitling him to a name-clearing hearing (see, Paul v Davis, 424 US 693, 708-709

). Petitioner has also alleged that all of the charges of misconduct in his personnel file are false (see, Codd v Velger, supra, 429 US, at 628). Hence, his entitlement to that hearing turns on whether he has satisfied the final element, dissemination of the stigmatizing material (see, Bishop v Wood, 426 US 341, 349).

Concededly, there has not yet been any public disclosure of the findings of petitioner's misconduct contained in his file, outside the confines of the Police Department. Respondent contends that actual dissemination is essential to petitioner's entitlement to a name-clearing hearing. Petitioner claims that it is sufficient that there is a likelihood that his file will be disclosed to prospective law enforcement employers.

This is the first time we have been called upon squarely to decide whether actual dissemination is required to trigger the right to a name-clearing hearing, or whether proof of a likelihood of dissemination is sufficient. The Federal Circuit courts that have addressed the issue are almost equally divided. A bare majority hold that proof of a likelihood of dissemination suffices. "The purpose of the requirement [of a public dissemination] is to limit a constitutional claim to those instances where the stigmatizing charges made in the course of discharge have been or are likely to be disseminated widely enough to damage the discharged employee's standing in the community or foreclose future job opportunities" (Brandt v Board of Coop. Educ. Servs., 820 F2d 41, 44 [2d Cir] [emphasis supplied]; see, Ledford v Delancey, 612 F2d 883, 886-887

[4th Cir]; Rosenstein v City of Dallas, 876 F2d 392, 396, n 6 [5th Cir]; Buxton v City of Plant City, 871 F2d 1037, 1045 [11th Cir]).

Three Circuits have insisted upon actual public disclosure before a discharged employee's liberty interest in a name-clearing hearing can be invoked (see, Ortega-Rosario v Alvarado-Ortiz, 917 F2d 71, 74-75

[1st Cir]; Copeland v Philadelphia Police Dept., 840 F2d 1139, 1148 [3d Cir]; Olivieri v Rodriguez, 122 F3d 406, 408 [7th Cir]). The rationale articulated for rejecting the due process right to a name-clearing hearing until actual dissemination is two-fold. First, these courts are apprehensive that disclosure will invariably be presumed because of the likelihood that a prospective employer will insist upon the applicant's revelation of the stigmatizing circumstances of a discharge from former employment, which "would encourage [the dismissed employee] to apply for a job to every police force in the nation, in order to magnify his damages" (Olivieri v Rodriguez, supra, 122 F3d, at 409). Second, there is a fear that a name-clearing hearing will become the rule in all cases, obviating the distinction between tenured and probationary public employment (id.).

We conclude that, despite these apprehensions, where the discharged employee is seeking only expungement of stigmatizing material in a personnel file—not reinstatement or damages—a likelihood of dissemination is sufficient to trigger one's right to a departmental name-clearing hearing. It is noteworthy that the Olivieri case and earlier Seventh Circuit precedents upon which it relied (see, Johnson v Martin, 943 F2d 15

; Ratliff v City of Milwaukee, 795 F2d 612), as well as the cited First and Third Circuit holdings, all were suits for compensatory (and in some cases punitive) damages under 42 USC § 1983. Requiring proof of actual dissemination makes sense in that context. After all, the underlying liberty interest to be protected in...