Wednesday, January 30, 2013

Public employee due process claim is tossed

Plaintiff was reappointed on four occasions to his "Building Official" position. Each reappointment got him another four years. The Board of Selectmen in this Connecticut community had discretion to bring plaintiff back each time. After plaintiff filed a grievance protesting a town official's effort to restrict his speech activity, he filed a First Amendment lawsuit. After plaintiff filed the lawsuit, the town hired another Building Official to replace plaintiff. He sues under the Due Process Clause.

The case is Looney v. Black, decided on December 21. The district court denied defendants' motion to dismiss the claim, but the Court of Appeals reverses and dismissed the claim on qualified immunity grounds because the law was not clearly established that town officials violated Looney's due process rights. You need a constitutionally-protected right to continued employment to maintain a claim like this, but the Second Circuit (Straub and Jacobs) says the law was not clear that Looney's rights were violated, and the case is tossed. Judge Droney dissents.

Circuit precedent holds the Due Process Clause creates a property right if the plaintiff "had been promised something explicitly -- either verbally, or in the terms of the applicable collective bargaining agreement -- about specific conditions during the future term of their employment."

Reviewing the cases, the Second Circuit says, "Ezekwo was told both in writing and in person that she could expect to be chief resident during her third year of residency. Ezekwo v. Health and Hospitals, 940 F.2d at 782 (2d Cir. 1991). Ciambrello was working pursuant to a collective bargaining agreement that stated he would not be demoted without engaging in incompetence or misconduct. Ciambrello v. County of Nassau, 292 F.3d at 319 (2d Cir. 2002). Harhay was contractually promised that she would be reappointed to an available position. Harhay v. Town of Ellington, 323 F.3d at 212 (2d Cir. 2003)."

Those cases do not help Looney. No one promised him anything. He creatively argues instead that provisions of Connecticut law and certain statements made to him at the start of his employment along with the fact that he was repeatedly reappointed to his position for years and years created a course of conduct giving rise to a protected property interest in his position that could not be deprived without due process, i.e., a hearing. But state law does not provide for that kind of expectation, and the fact that the Board kept reappointing him to the position does not trigger protection under the Due Process Clause. Even in his last appointment, the Board made no explicit promises.

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