Moynihan v. Hickey

• Decision Date: 21 January 1986
• Docket Number: No. C. 85-674-D.,C. 85-674-D.
• Parties: Andrew J. MOYNIHAN; Theresa Church v. J. Michael HICKEY; Joseph W. Hogan; H. Irene Peters; Samuel Reddy, Jr.; Leon Harold Rice; Barbara E. Arnold; Lionel R. Boucher; James D. Casey; Claire D. Clarke; Richard M. Flynn; David T. Rines; Stella D. Scamman.
• Court: U.S. District Court — District of New Hampshire

627 F. Supp. 466

Andrew J. MOYNIHAN; Theresa Church v. J. Michael HICKEY; Joseph W. Hogan; H. Irene Peters; Samuel Reddy, Jr.; Leon Harold Rice; Barbara E. Arnold; Lionel R. Boucher; James D. Casey; Claire D. Clarke; Richard M. Flynn; David T. Rines; Stella D. Scamman.

No. C. 85-674-D.

United States District Court, D. New Hampshire.

January 21, 1986.

Charles G. Douglas, III, Concord, N.H., for plaintiffs.

James A. Sweeney, Asst. Atty. Gen., Concord, N.H., for defendants.

MEMORANDUM OPINION

DEVINE, Chief Judge.

Prior to October 21, 1985, the plaintiffs, Andrew J. Moynihan and Theresa Church, were employed by the federally-funded state agency known as the New Hampshire Council on Vocational Technical Education ("Council"). As of said date, Moynihan had been so employed for sixteen (16) years and held the position of Executive Director. In turn, Church had been so employed for fourteen and one-half (14½) years and held the position of Executive Secretary. In the course of a Council meeting held on October 21, 1985, the plaintiffs were orally advised that Council had been reorganized, that their respective positions had been eliminated, and that they were to turn in their keys and to cease all further duties of employment for Council. Their inquiries as to benefits they perceived to be due and owing them were met with replies to the effect that such would be taken up in the future by the Executive Committee of Council. Plaintiffs' Exhibit 17.¹

In this litigation, the issues currently before the Court for resolution, after hearing, concern the plaintiffs' claims of right to injunctive relief requiring their reinstatement.² Specifically, plaintiffs contend that the evidence demonstrates violations of their constitutional rights of free expression pursuant to the First and due process pursuant to the Fourteenth Amendments to the United States Constitution.³

1. The Facts

Commencing with passage of the Morrill Act in 1862 (12 Stat. 503), the federal government has recognized responsibility for assistance to vocational education. In 1963, Congress sought to modernize its approach by redirection and expansion of funding assistance for the purpose of making available to all citizens high quality vocational education. The 1963 legislation contained a provision for designation of an advisory council in each state, membership of which was to include persons familiar with the vocational needs of management and labor as well as representatives of educational institutions which provided programs of technical and vocational training.⁴

Significant amendments to the Vocational Education Act were made in 1976, at which time the statute was codified at 20 U.S.C. §§ 2301-2461. Therein as a condition of participation in the program the governor of each state was required to appoint a state advisory council, one or more individual members of which were to come from one or more of twenty specified categories of the citizenry. 20 U.S.C. § 2305(a). Following gubernatorial selection, each council was to select its chairman, 20 U.S.C. § 2305(c), and each council was authorized to employ "such professional, technical, and clerical personnel as may be necessary to enable it to carry out its functions under this chapter...." 20 U.S.C. § 2305(e).⁵ Additionally, the assurance of fiscal autonomy as to each council was set forth in a statutory provision which stated:

The expenditure of these funds is to be determined solely by the State advisory council for carrying out its functions under this chapter, and may not be diverted or reprogramed for any other purpose by any State board, agency or individual. Each counsel shall designate an appropriate State agency or other public agency, eligible to receive funds under this chapter, to act as its fiscal agent for purposes of disbursement, accounting and auditing.

20 U.S.C. § 2305(f)(2) (emphasis added).

Employed as staff by Council, the plaintiffs were originally in the state employee system, and the New Hampshire Department of Education was the originally designated fiscal agent for Council. In 1981, however, the then membership of Council voted to change fiscal agents to the Concord, New Hampshire, School District, and plaintiffs accordingly withdrew from the state employment system.⁶ For some period of time prior to 1982, plaintiffs operated as employees-at-will of Council, but in that year, Council caused job descriptions to be drawn up for each of them and set up a schedule of benefits by means of Amendments or Additions to its Administrative Guide.⁷ In addition to detailing such items as wage and personnel policies, mileage and meal reimbursements, holidays, annual and sick leave, and annual staff evaluations, these additions specified a dismissal procedure for staff of Council as follows:

3.6 Dismissal Procedure

Dismissal procedure shall be by due process as follows:

(1) Notification to employee in writing, 30 days prior to dismissal date, setting forth the grounds for dismissal.

(2) If the employee desires a hearing, the employee shall make request within 10 days after receipt of dismissal notice in writing to the chairman of the Council.

(3) The employee shall have the right to a hearing before the Executive Committee within 15 days and may present witnesses and written evidence.

(4) The Executive Committee shall affirm, modify, or reverse the nonrenewal or dismissal in writing within five days.

Plaintiffs' Exhibit 7.

Commencing January 24, 1983, a series of term letter contracts were issued by Council to plaintiff Moynihan, who in turn issued identical letter contracts to plaintiff Church.⁸ Each of said letter contracts incorporated by reference the provisions of the Additions set forth in Plaintiffs' Exhibit 7.⁹

In October 1984 Congress made extensive repealing amendments to the vocational education act by medium of passage of the Carl D. Perkins Vocational Act, so-called, P.L. 98-524, 98 Stat. 2435. Now codified at 20 U.S.C. §§ 2301-2471, the Perkins Act required a reduction in the number of members of Council to thirteen, each of which was to be representative of a defined segment of the population. 20 U.S.C. § 2322(a). The Perkins Act also mandated that

each State council shall meet as soon as practical after certification has been accepted by the Secretary and shall select from among its membership a chairperson who shall be representative of the private sector.

....

20 U.S.C. § 2322(c) (emphasis added).

The Perkins Act made no changes in the provisions of the prior act concerning the staffing or the description of fiscal agents.¹⁰

On December 13, 1984, LeRoy A. Cornelson, Director of the Division of Vocational Education of the United States Department of Education, sent a memo to all appointing authorities, including the Office of the Governor of New Hampshire. Therein he set forth the Perkins Act requirement of membership on the Council and the time limitations for certification of the membership of the Council, and requested expedition of such appointments. A copy of relevant portions of the Perkins Act was appended to this memorandum. Plaintiffs' Exhibit 30.¹¹

Commencing in January 1985, plaintiff Moynihan sought to ascertain from the Office of the Governor the membership of the new Council who were to be appointed pursuant to the Perkins Act. Plaintiffs' Exhibit 31.¹² On August 16, the Governor's Office certified that the Council had been appointed as required by the Perkins Act. Plaintiffs' Exhibit 30. On September 5, 1985, the Governor forwarded a letter to J. Michael Hickey, then employed by the State of New Hampshire as Director of Economic Development, Department of Resources and Economic Development ("DRED"), wherein the Governor purported to appoint Hickey as the new Chairman of Council. Plaintiffs' Exhibit 11.

On September 24, 1985, Hickey, as Acting Chairman, held a meeting of the newly-appointed Council and appointed a number of committees, including a nominating committee. In the course of such meeting, immediate past Chairman Rice questioned the eligibility of Hickey, a State employee, to serve as Chairman, as he was not a representative of the private sector, but Hickey indicated that he had conferred with the Attorney General of New Hampshire and that his service as Council Chairman would be approved. Plaintiffs' Exhibit 13.¹³

A subsequent Council meeting was held on October 2, 1985, at which time the nominating committee reported the name of Hickey for Chairman. At this meeting, Joseph Hogan, a Council member, questioned the eligibility of Hickey to serve as a representative of the private sector and refused to vote for him for the position of Chairman. Moynihan raised similar questions in the course of said meeting. Plaintiffs' Exhibit 14.¹⁴

On October 3, 1985, Moynihan sent Cornelson a detailed letter in which he questioned the eligibility of Hickey to serve as Chairman in light of the fact that Moynihan did not believe that Hickey, as a State employee, could represent the private sector. Plaintiffs' Exhibit 12.¹⁵ At about the same time as Moynihan dispatched his letter to Cornelson, Church raised similar inquiries in a telephone call to a member of the staff of the Department of Education in Washington.

At the meeting of October 21, 1985, Council went into executive session, from which both plaintiffs were excused. On their return therefrom, Council advised plaintiffs as to the elimination of their jobs and further told them that the question of any benefits due and owing them would be taken up in the future by the executive committee of Council.

Plaintiffs here contend that the cause of their discharge was their complaints at Council meetings and to federal authorities with respect to what they perceived to be the improper composition of the membership of Council. Plaintiffs also claim that the due process rights provided in the Additions to Administrative Guide, Plaintiffs' Exhibit 7, were not complied with as regards the...