Appeal by plaintiffs from an order of the District Court for the Western District of New York, John T. Elfvin, Judge, 539 F. Supp. 87 (1982), granting defendants' motion for summary judgment in an action in which plaintiffs challenged the constitutionality of § 210.2 of the New York Civil Service Law (the Taylor Law). Affirmed.
FEINBERG, Chief Judge, and FRIENDLY and KAUFMAN, Circuit Judges.
This is the latest in a long series of challenges in the state and federal courts over the last decade to the constitutionality of § 210 of New York's Civil Service Law (the Taylor Law), which prohibits strikes by public employees. See Cheeseman v. Carey, 623 F.2d 1387, 1389-90 & note 3 (2 Cir. 1980). The action, brought under 42 U.S.C.§ 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343(3), in the District Court for the Western District of New York, contests the procedures prescribed by § 210.2 for determining whether a public employee participated in a strike in violation of § 210.1 and for imposing a penalty on those determined to have so participated. The district court granted the named plaintiffs permission to represent a class consisting of "all persons who were penalized by defendants acting pursuant to CSL § 210 owing to their involvement in the teachers' strike that occurred in Buffalo between September 7th and 24th, 1976". Defendants are Eugene T. Reville, individually and as superintendent of Buffalo's schools; Claude D. Clapp, individually and as chief fiscal officer of the Buffalo public school system; and the members of the Board of Education of the City School District of Buffalo. Both sides moved for summary judgment. In somewhat of a dubitante opinion, Judge Elfvin granted the defendants' motion, 539 F. Supp. 87 (1982). This appeal followed.
The procedures for determining violations of the Taylor Law and imposing penalties therefor are prescribed by § 210.2, the relevant paragraphs of which we have set out in full in the margin.*fn1 The "chief executive officer" of the governmental unit involved is empowered to determine, "on the basis of such investigation and affidavits as he may deem appropriate", whether an illegal strike has occurred and which employees have participated. § 210.2(d). In making the latter determination he may employ the presumption, established by § 210.2(b), that an "employee who is absent from work without permission, or who abstains wholly or in part from the full performance of his duties in his normal manner without permission", has participated in the strike. An employee who has been notified that the chief executive officer has found him to have participated in an illegal strike may object to this initial determination by filing a "sworn affidavit, supported by available documentary proof, containing a short and plain statement of the facts upon which he relies. . . ." § 210.2(h). The chief executive officer evaluates the objections and is obliged to refer those raising material questions of fact to a hearing officer. id. Between 30 and 90 days after the chief executive officer's initial determination, the "chief fiscal officer" begins payroll deductions of amounts equal to twice the daily rate of pay for each day on strike. These deductions are not stayed until the employee's objection has been sustained, at which time all deductions previously made are refunded. §§ 210.2(g), (h). The determinations made under § 210.2(h), including the chief executive officer's determination whether an objection raises a material question of fact, are judicially reviewable pursuant to Article 78 of the New York CPLR.
The stipulation upon which summary judgment was entered below was, in relevant part, as follows. On September 7, 1976, approximately 3000 of the 3300 school teachers employed by the Buffalo School District commenced a strike which continued through September 24, 1976. By notice dated October 14, 1976, Superintendent of Schools Reville, the district's "chief executive officer", see § 201.10, informed these 3000 teachers that he had found them to have participated in an illegal strike. Approximately 400 teachers, including the four named plaintiffs,*fn2 filed objections. Some 325 of these, again including the named plaintiffs, received notices, signed by Reville, dismissing their objections and denying a hearing on the ground that they had failed to establish that they had not participated or to raise a question of fact as to their participation. Several of those who were thus denied a hearing availed themselves of the opportunity provided by § 210.2(h) to challenge Reville's determination in an Article 78 proceeding; the Supreme Court of New York directed that hearings be held in three such cases. The payroll deductions made by Deputy Superintendent Clapp, the district's "chief fiscal officer", totalled some $6 million, all of which was applied to the school district's operating budget. Finally, it was stipulated that Reville and Clapp were "involved in the formation of the budget and the planning with regard to the utilization" of the $6 million.
On the basis of this stipulation plaintiffs sought below a declaration that the procedures in § 210.2 deprived them of their property without due process of law. They made two claims. The first was that Reville, given his various executive responsibilities for the school system's operation and budget, has a disqualifying interest in the determinations he makes under § 210.2(h). The second was that the procedures are infirm on their face for failure to provide hearings prior to the commencement of payroll deductions. The first claim was rejected by the district court, not without evident misgivings, on the basis of a prior decision of this court.*fn3 The second claim was found to be settled authoritatively against plaintiffs by the Supreme Court's dismissal of the appeal from Sanford v. Rockefeller, 35 N.Y.2d 547, 364 N.Y.S.2d 450, 324 N.E.2d 113 (1974), "for want of a substantial federal question", 421 U.S. 973, 95 S. Ct. 1972, 44 L. Ed. 2d 465 (1975).
Since plaintiffs have not renewed their second claim, the sole question for review is whether in authorizing Superintendent Reville to pass on the legal sufficiency of objections, § 210.2(h) transgresses the command, rooted in common law practice, see Bonham's Case, 8 Co. 107a, 77 Eng. Rep. 638 (K.B. 1608); 2 Cooley, Constitutional Limitations 870-75 (8th ed. 1927), and considered to be inherent in the due process clause of the 14th amendment, see In re Murchison, 349 U.S. 133, 137, 99 L. Ed. 942, 75 S. Ct. 623 (1955), that no person shall be judge in a case in the outcome of which he has an interest. The constitutional contours of that command have been most fully explored in a quintet of Supreme Court decisions: Tumey v. Ohio, 273 U.S. 510, 71 L. Ed. 749, 47 S. Ct. 437 (1927); Dugan v. Ohio, 277 U.S. 61, 72 L. Ed. 784, 48 S. Ct. 439 (1928); Ward v. Village of Monroeville, 409 U.S. 57, 34 L. Ed. 2d 267, 93 S. Ct. 80 (1972); Hortonville Joint School District No. 1 et al. v. Hortonville Educational Ass'n, 426 U.S. 482, 96 S. Ct. 2308, 49 L. Ed. 2d 1 (1976); and Marshall v. Jerrico, Inc., 446 U.S. 238, 64 L. Ed. 2d 182, 100 S. Ct. 1610 (1980). Although none is conclusive of the precise question before us, we must look to these decisions in seeking a resolution.
Tumey, Dugan and Ward were criminal cases involving Ohio "Mayors' Courts". In Tumey the defendant had been convicted of violating the state's prohibition act after a trial before the mayor of North College Hill in the Village's "Liquor Court". Pursuant to state statute, half of the fines assessed in this court were retained by the Village. These funds were used partly to compensate the deputy marshals and detectives who secured evidence and the prosecutors who secured convictions, 273 U.S. at 518-19, and partly for general "village improvements and repairs", id. at 521. The Village ordinance establishing the Liquor Court further provided that the mayor receive "his costs in each case, in addition to his regular salary, as compensation for hearing such cases", id. at 519; however, no costs were paid to him unless the defendant was convicted. During a seven-month period in 1923 some $11,000 in fines redounded to the Village -- this amounted to $10 per Village resident -- and some $696 came to the mayor as costs in addition to his regular salary. Id. at 521-22. The scheme was held to violate due process on two grounds -- first, because the mayor, "as an individual", had a "direct, personal, pecuniary interest" in the costs which he received from convictions, id. at 523, 531-35; second, because the mayor, as the Village's chief executive, charged with the business of looking after its finances, had a strong "official motive to convict and to graduate the fine to help the financial needs of the village", id. at 535.
A limitation on the second ground of Tumey was shortly set in Dugan v. Ohio, supra, 277 U.S. 61, written, as Tumey had been, by Chief Justice Taft. The defendant there had been convicted by the mayor of the city of Xenia for a state liquor offense. Since the mayor was a salaried official who did not participate in the costs collected or fines imposed by his court, the first ground of Tumey was inapplicable. Despite the fact that, as in Tumey, half of the fines imposed were retained by the city, the second ground was held inapplicable as well. The reason was that unlike the mayor of North College Hill, who "as chief executive was responsible for the financial condition of the village" and who thus "might be tempted to accumulate from heavy fines a large fund by which the running expenses of a small village could be paid, improvements might be made, and taxes reduced," id. at 65, the mayor of Xenia had no executive functions. Xenia had a commission form of government; the mayor was only one of five commissioners, while the "active executive" was the city manager. Id. at 63. The Court concluded that the mayor's "relation under the Xenia charter, as one of five members of the city commission, to the fund contributed to by his fines as judge, or to the executive or financial policy of the city" was too "remote" to create a practical conflict of interest. id. at 65. This was said despite the fact that ultimate responsibility for raising the city's revenues, as for spending them, see id. at 62, presumably rested with the commission rather than the city manager.
Ward v. Village of Monroeville, supra, 409 U.S. 57, was held to fall within the second ground of Tumey rather than under Dugan. This was for two reasons. First, the village of Monroeville, like North College Hill, derived a "major part" of its income from the fines and fees imposed by the mayor's court -- ranging from 37% to 50% in the five years cited, id. at 58. Indeed, so vital was the revenue generated by the mayor's court that "when the state legislature threatened its loss, Monroeville retained a management consultant for advice upon the problem", id. at 58-59 and n. 1.
Hortonville, supra, 426 U.S. 482, like the instant case, dealt not with criminal proceedings but with the disciplining of teachers who had struck in violation of state law. The discipline, there dismissal rather than mere fine, was administered, however, not by the Hortonville school district's superintendent but by its elected seven-member School Board, which had engaged in the pre-strike negotiations with the teachers and had sole statutory authority to hire and fire. The Court rejected the dismissed teachers' due process challenge to the Board's impartiality. Leaving open the question whether Tumey and Ward "state the governing standards when the decisionmaker is a public employer dealing with employees", it held that "the teachers did not show, and the Wisconsin courts did not find, that the Board members had the kind of personal or financial stake in the decision that might create a conflict of interest. . . ." Id. at 491. However, the decision is less telling for defendants in our case than the statement up to this point might seem to make it. The Board had engaged, the Court pointedly noted, not in adjudication -- the dismissed teachers all admitted that they had struck -- but in policy-making, to wit, determining whether dismissal or some less drastic measure, such as mediation or continued bargaining, would best serve the interests of the school system and the taxpayers. Id. at 494-95.*fn4 To such a decision the stringent standards of Tumey and Ward simply did not apply.*fn5
The Court's most recent extended discussion of the impartiality requirement is Marshall v. Jerrico, Inc., supra, 446 U.S. 238. At issue there was the constitutionality of § 16(e) of the Fair Labor Standards Act, 29 U.S.C. § 216(e), under which sums collected as civil penalties for the unlawful employment of child labor are returned to the Employment Standards Administration (ESA) of the Department of Labor in reimbursement for the costs incurred by its assistant regional administrators ("administrators") in determining violations and assessing penalties. The Court unanimously rejected the claim that this statutory scheme impermissibly encouraged the administrators to make unduly numerous and large assessments. It held that the "rigid requirements of Tumey and Ward, designed for officials performing judicial or quasijudicial functions", id. at 248, are inapplicable to the ESA's administrators whose function of assessing violations is "akin to that of a prosecutor or civil plaintiff" rather than a judge, id. at 247.*fn6 Beyond this the Court found that the reimbursement scheme does not offend the more relaxed standard applicable to "administrative prosecutors". The administrators are salaried officials who in no way profit personally from the assessments they make. Since the sums collected were very small -- "substantially less" than 1% of the ESA's budget in the three years examined, and less than the amounts returned to the Treasury by the ESA in each of these years -- there was no "realistic possibility" that the judgment of the administrators would be "distorted by the prospect of institutional gain . . .". Id. at 250. Moreover, the ESA's administration of § 16(e) had minimized the potential for bias. In the ...