regarded as proper functioning of the district, that no defamatory announcement was made, and that no charges of personal wrongdoing were made or circulated.
While Judge Fox recommended only denial of plaintiff's motion, the facts he found and his legal analysis, both of which I adopt, and which I amplify as discussed below, lead to the conclusion that plaintiff's Fourteenth Amendment claim cannot be upheld.
Consequently, defendants' motion for summary Judgment dismissing plaintiff's Fourteenth Amendment claim is granted. Under these circumstances, it would be inappropriate to retain the pendent state claims, which are accordingly dismissed without prejudice.
This case presents only claims of denial of procedural due process. It involves no First Amendment or other independent federally protected rights. Under the circumstances described above, the only cognizable loss to plaintiff was in the ability to fulfill the function of superintendent for a limited period, and no liberty or property interest was infringed.
Loss of prestige due to the dispute with the school board cannot be recognized without permitting as bases for federal litigation, every up and down in the fortunes of highly visible public servants who are, by the very nature of their activities, subject to criticism.
Plaintiff lost no money and was not defamed by any negative announcement,
or a dismissal for harmful reasons. In the context of a dispute between a public sector employee and a governing body, the Supreme Court has specifically suggested the course taken by the defendants as a way appropriately to discharge their own duty to supervise the large-scale activities within their charge, while avoiding harm to liberty or property of their employees:
". . . in . . . situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 544-45, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985).
As indeed foreshadowed by Loudermill, it has been specifically indicated that "suspension with pay does not raise due process concerns," Hicks v. City of Watonga, 942 F.2d 737, 746 n. 4 (10th Cir. 1991). A similar ruling was made by Judge Leisure of this court in Weg v. Macchiarola, 729 F. Supp. 328, 338 (S.D.N.Y. 1990).
Insofar as the non-financial harm alleged by plaintiff, the administrative remedy available was in fact used. It led to a favorable result with respect to the suspension and whatever aura it may have projected. Moreover, a formal hearing was scheduled, providing further opportunity for plaintiff to refute any charges. And most pertinently, as explained by Judge Leisure in some detail in Weg at 338-39, the sting sufficient to infringe a liberty interest has been found only where harmful criticism was accompanied by dismissal without adequate procedural safeguards - at least absent a deliberate campaign of defamation not involved here.
No liberty or property interest of plaintiff was infringed.
Even had the threshold question of impingement upon liberty or property interests been passed, a balance would still have had to be struck as to what process was due under the circumstances. This in turn would have involved seeking a balance between reasonable protection of the interests of the public sector employee and "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Connick v. Myers, 461 U.S. 138, 142, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983), quoting Pickering v. Board of Education, 391 U.S. 563, 568, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1967).
This is especially important where a high-level supervisory employee such as a superintendent of schools, rather than having "'very limited, if any, responsibility' with respect to the overall operation" of the organization, must "formulate plans for the implementation of the broad goals of the office," Branti v. Finkel, 445 U.S. 507, 511, 63 L. Ed. 2d 574, 100 S. Ct. 1287 (1980) (dealing with an assistant public defender and suggesting that even where, as there but not in the present case, First Amendment rights were involved, the factors mentioned were critical).
In this type of case, apart from breach of contract claims not presently under discussion, it is important for local boards of education and similar local decisionmakers to be able, at least as far as the Federal Constitution is concerned, to remove high level supervisory officials from actual performance of duty if they disagree with the officials' policy decisions and philosophy or approach, even if no wrongdoing, impropriety, or misconduct is involved.
Thus, in the context of a high official with broad authority and responsibility, due process would appear to be satisfied if a post-suspension hearing was scheduled, even if the suspension with pay and the intramural debate necessarily preceding affected a liberty or property interest. Such a post-suspension hearing would give the official the opportunity to rebut any charges, particularly where no hostile public statement was released. The reasoning of the decisions finding no violation of any constitutional liberty or property interest in this context would appear to support that result, as does the necessity for robust debate concerning public figures. Political restraints are the first line of defense against abuses by public officials.
The system will not function effectively if the decisionmakers to be restrained may not be removed from duty quietly and with pay without prior formal proceedings. Moreover, state procedures, as illustrated by the revocation of the initial suspension here, are available and appear to go well beyond federal due process requirements.
Plaintiff's unhappiness with his suspension, even with pay, is understandable. If the decision to suspend was unwise or erroneous, it should be redressed by local policy decisionmakers, or by state procedures such as those already invoked, which appear adequate to satisfy due process in the context of this case.
Dated: White Plains, New York
April 13, 1992
VINCENT L. BRODERICK, U.S.D.J.