Greene v. McGuire , 683 F.2d 32 ( 1982 )

LUMBARD, Circuit Judge:

Robert McGuire, the police commissioner of New York City, appeals from a summary judgment in the Southern District of New York, ordering McGuire to give plaintiffs Wilma Greene and Clarence Callis a hearing on their petition for reinstatement as police officers. Greene v. McGuire, 517 F.Supp. 1330 (S.D.N.Y.1981). Judge Goettel ruled that fourteenth amendment due process required McGuire to give plaintiffs a hearing before denying their applications, even though Greene and Callis had automatically lost their jobs by operation of law and had neither right nor reasonable expectancy of reinstatement. We reverse. Commissioner McGuire’s decision not to reinstate plaintiffs deprived them of neither property nor liberty protected by the fourteenth amendment.

Both McGuire and plaintiffs moved for summary judgment after an exchange of pleadings and affidavits; there is no dispute as to the facts; Greene and Callis were appointed to the New York City police force in 1963 and 1961, respectively. They were plainclothes police officers with the 13th division in the Brooklyn North Public Morals District until May 1, 1972, when they and fourteen other members of their detail were indicted on various felony charges of bribery and conspiracy.¹ The officers were accused of belonging to a “pad” which turned a blind eye to illegal gambling in return for payoffs from the gamblers. Three officers who had belonged to the pad testified against their fellows; two of them placed Greene and Callis at a meeting of the pad. On October 3,1973, all of the accused officers were convicted by a jury in Kings County. Greene, Callis and the others were dismissed from the police force on October 9,1973, pursuant to Public Officers Law § 30(l)(e), which provides:

1. Every office shall be vacant upon the happening of one of the following events before the expiration of the term thereof:

e. His conviction of a felony, or a crime involving a violation of his oath of office.

On January 9,1978, the appellate division reversed the convictions of both Greene and Callis. People v. Cona, 60 A.D.2d 318, 328-29, 401 N.Y.S.2d 239, 245-46 (2d Dep’t 1978). Their fellow officers had testified against them, and in federal court this would have been enough to support their convictions. United States v. Messina, 481 F.2d 878, 881 (2d Cir.), cert. denied, 414 U.S. 974, 94 S.Ct. 286, 38 L.Ed.2d 217 (1973); Holmgren v. United States, 217 U.S. 509, 523-24, 30 S.Ct. 588, 591-92, 54 L.Ed. 861 (1910); Davis v. United States, 411 F.2d 1126, 1128 & n.1 (5th Cir. 1969). See E. Devitt & C. Blackman, I Federal Jury Practice & Instructions § 17.06 (3d ed. 1977). In New York, however, no defendant may be convicted solely on the testimony of accomplices. N.Y.Crim.Proc.Law § 60.22(1) (McKinney 1981). Only one non-accomplice witness placed Greene and Callis at the “pad,” and he failed to identify them at trial leaving only the testimony of their fellow officers against the two. The Court of Appeals affirmed on December 13, 1979. People v. Cona, 49 N.Y.2d 26, 36, 399 N.E.2d 1167, 1171, 424 N.Y.S.2d 146, 151 (1979).

Their convictions reversed, plaintiffs sought reinstatement by writing to the Police Department in March 1980. On June 2, the Department replied with letters denying the petitions for reinstatement. It gave no reason in its letter for refusing reinstatement. The Department subsequently took the position that plaintiffs’ reversal of their convictions in no way qualified them for their old jobs, because accomplice testimony would have been sufficient in departmental disciplinary hearings to justify their dismissal.² At any rate, on September 3, 1980, plaintiffs sued Commissioner McGuire under 42 U.S.C. § 1983, contending that his denial of reinstatement without prior hearing deprived them of property without due process of law in violation of the fourteenth amendment.

Judge Goettel held for plaintiffs, concluding that denial of reinstatement not only deprived plaintiffs of a property interest in their old jobs but also “stigmatized” them and thus impaired their “liberty interest” in their reputations. He conceded that Greene and Callis were not entitled to a hearing prior to their dismissal because § 30(l)(e) automatically extinguished on conviction whatever property interest they had in their jobs. He also agreed that reversal of their convictions did not entitle them to automatic reinstatement. But he reasoned that reversal nevertheless changed the situation:

The circumstances that led to the application of subsection 30(l)(e) no longer exist. It is inherently unfair to preclude even the possibility of plaintiffs’ ever regaining their former positions.... While plaintiffs’ forfeiture of office was justified upon their felony convictions, once the convictions were reversed, further deprivation can only be based on proof that plaintiffs are guilty of misconduct serious enough to bar reinstatement to their former positions....

Greene v. McGuire, 517 F.Supp. 1330, 1333 (S.D.N.Y.1981).

The due process clause is implicated only if a property or a liberty interest is affected by state action. Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Roth, 408 U.S. at 577, 92 S.Ct. at 2709. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Under the governing state law in the present case plaintiffs lost absolutely whatever tenure they had. Section 30(l)(e) provides that “[Ejvery public office becomes vacant upon the officers’ conviction of a felony. A conviction of [the police officer] constitutes an abridgement of [his] office, automatically terminating its duration.” Toro v. Malcolm, 44 N.Y.2d 146, 149-50, 375 N.E.2d 739, 741, 404 N.Y.S.2d 558, 561 (1978).

In Toro, a police officer had been convicted, had lost his job under § 30(l)(e), had been voluntarily reinstated and then sued for back pay. The Court of Appeals denied back pay, and in doing so made clear that reinstatement, though offered to Toro, was an act of grace and nothing more. The Court stressed that the public had a right to rest assured that its police officers are individuals of moral integrity.

A felony conviction, notwithstanding its reversal on appeal, may in many cases shatter this ideal. To avoid this occurrence, we believe the Legislature has chosen to vacate a public office upon the officer’s conviction of a felony. More than 50 years ago we so held in Matter of Obergfell [239 N.Y. 48, 145 N.E. 323 (1924)] and the Legislature has not changed or amended the substance of section 30 since our decision. In the face of this clear statutory directive, the courts lack the power to order the reinstatement of a former officer or an award of back pay based upon the subsequent reversal of the officer’s conviction.

Toro v. Malcolm, supra, 44 N.Y.2d at 151-52, 375 N.E.2d at 742-43, 404 N.Y.S.2d at 562 (emphasis added). The Court’s words on reinstatement, though dicta, state the law of New York. See, e.g., Economico v. Pelham, 50 N.Y.2d 120, 126, 405 N.E.2d 694, 697, 428 N.Y.S.2d 213, 215-16 (1980) (§ 30(1)(e) “extinguishes” job); Gunning v. Codd, 49 N.Y.2d 495, 499, 500, 403 N.E.2d 1208, 1209, 1210, 427 N.Y.S.2d 209, 210, 211 (1980); Pesale v. Beekman, 81 A.D.2d 590, 437 N.Y.S.2d 448, aff’d mem., 54 N.Y.2d 707, 426 N.E.2d 483, 442 N.Y.S.2d 989 (1981) (administrative hearings after conviction and vacatur of officer per § 30(l)(e) were without effect).

It is clear that § 30(l)(e) was a condition on the jobs held by Greene and Callis which was not within the control of their employer but was a limitation as explicit as a clause in their contract. Once they were convicted — and the condition fulfilled — they lost their property interest. Nor is this condition unconstitutional for arbitrariness. It becomes operative only after a determination by an independent body that the officer has been guilty of serious misconduct. The statute did not work a provisional deprivation like the writs of replevin in Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). The plaintiffs’ jobs are not like repossessed stoves or stereos which they can one day regain. The statute and its interpretations are plain: the plaintiffs’ jobs are no more. When plaintiffs applied for reinstatement, they had neither the right to return nor any reasonable expectation of being rehired. Because state law left them nothing, Commissioner McGuire’s decision deprived them of nothing. His decision did not implicate due process.

Nor did Commissioner McGuire’s decision not to rehire plaintiffs work any deprivation of “liberty” by harming their reputations. The most relevant authority is Bishop v. Wood, supra. Bishop was a nontenured police officer in Marion, N. C., who was fired for undisclosed reasons by a town, manager without a prior hearing. He sued, alleging a denial of due process. The Court held that he failed to demonstrate a denial of either property or liberty. Such “stigma” as affected his reputation, the Court reasoned, could not be laid at the town manager’s door. The reasons for Bishop’s dismissal were disclosed only by his own suit. So here, any stigma attaching to Greene and Callis resulted from their conviction in state court, and they have received such relief from that stigma as the courts of New York can afford. Such “stigma” cannot be laid at Commissioner McGuire’s door. He did not disclose reasons for denying reinstatement. His refusal to hire plaintiffs was no more stigmatizing than the refusal by any other, unrelated, government office. Such reputation as plaintiffs had when they applied to Commissioner McGuire in 1980, they keep after his refusal to rehire; the decision itself is not stigmatizing. Bishop v. Wood, supra, 426 U.S. at 348-49, 96 S.Ct. at 2079.

The district coúrt found that it is “inherently unfair” for New York City to preclude rehiring the plaintiffs once their convictions have been reversed. But fairness is not relevant if neither property nor liberty is at stake. To paraphrase the Supreme Court, the validity or invalidity of plaintiffs’ convictions determines whether or not Commissioner McGuire’s decision to deny reinstatement was correct or prudent, but neither enhances nor diminishes their claim that their constitutionally protected interest in liberty has been impaired. “A contrary evaluation of [their] contention would enable every discharged employee to assert a constitutional claim merely by alleging that his former supervisor had made a mistake.” Bishop v. Wood, supra, 426 U.S. at 349, 96 S.Ct. at 2079. The Court concluded, “The Due Process Clause of the Fourteenth Amendment is not a guarantee against incorrect or ill-advised personnel decisions.” Id. at 350, 96 S.Ct. at 2080. That statement is as applicable in New York City today as it was in Marion, N. C., in 1976.

Reversed.

1 . The officers were suspended by the Police Department upon their indictment; on May 23, 1972, the Department instituted administrative proceedings against them. Pursuant to departmental policy, the administrative proceedings were held in abeyance while the officers were prosecuted, and were mooted when the officers were convicted and dismissed from the force.

2 . The Department contends that because testimony adduced at trial would be sufficient to find plaintiffs unfit to be police officers, a hearing at this point would serve no purpose. See Codd v. Velger, 429 U.S. 624, 627, 97 S.Ct. 882, 883, 51 L.Ed.2d 92 (1977) (per curiam) (must be some dispute to justify a hearing). Because we hold that plaintiffs lost neither liberty nor property and therefore were not entitled to any hearing, we need not decide this question.