in light of possible new evidence. Id. at Ex. 16.
On November 1, 1993, plaintiff was examined by the Medical Board for a second time, after which the Medical Board issued another report assessing the "new" evidence and reaffirming its previous recommendation. Id. at Ex. 17. Plaintiff's counsel appealed again to the Board of Trustees. On April 13, 1994, after again reviewing the recommendation of the Medical Board and the further objections of plaintiff's counsel, the Board of Trustees yet again remanded the case to the Medical Board, this time specifying particularized questions for the Medical Board to answer. Id. at Ex. 19.
On July 25, 1994, the plaintiff went before the Medical Board for a third time, after which the Medical Board issued a third report that both specifically answered the questions posed by the Board of Trustees and reaffirmed its previous recommendation. Id. at Ex. 20. After receiving the objections of plaintiff's counsel, the Board of Trustees once again reviewed the recommendation of the Medical Board and, on March 15, 1994, once again remanded the case, this time so that the Medical Board could reconsider the case pursuant to new proposed due process standards applicable to psychological disability cases that were about to be adopted but that had not been in place previously. Id. at Ex. 22. The new procedures required, inter alia, that an officer being surveyed by the Medical Board be given fair notice, an opportunity to object, an opportunity to review all files under consideration by the Medical Board, an opportunity to retain a medical professional to appear before the Medical Board on the officer's behalf and present evidence, and an opportunity on appeal for the officer or her attorney to present written arguments and new evidence to the Board of Trustees. Id. at Ex. 23.
On March 18, 1996, the Medical Board reviewed plaintiff's case for a fourth time, pursuant to these new procedures. In the interim, an updated psychological evaluation of plaintiff had been conducted on February 2, 1996 by Dr. Andrew Propper, the senior psychologist with the PSU, who concluded that plaintiff was not psychologically fit for duty. At the March 18 hearing, plaintiff, who had been made aware of the updated evaluation and the new procedures, neither availed herself of the opportunity to retain a medical professional to speak on her behalf before the Medical Board nor presented any new evidence on her psychological condition. Once again, the Medical Board issued a written report recommending plaintiff's retirement for mental disability. Id. at Ex. 25. This time, however, the Board of Trustees, by an evenly-divided vote, adopted the recommendation of the Medical Board and on April 17, 1996 approved the police commissioner's recommendation that plaintiff be retired on ordinary disability as mentally unfit. Id. at Ex. 26. Plaintiff's retirement was effective as of June 15, 1996. She timely commenced this action on May 8, 1996.
In now moving and cross-moving for summary judgment, the parties are in agreement that plaintiff, as a tenured police officer, had a property interest in her job of which she could not be deprived without due process, see Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985), as well as a constitutional liberty interest similarly implicated by her involuntary termination for mental incapacity. See Lombard v. Bd. of Educ. of City of New York, 502 F.2d 631, 637-38 (2d Cir. 1974), cert. denied, 420 U.S. 976, 43 L. Ed. 2d 656, 95 S. Ct. 1400 (1975). Thus the central disputed issue is whether the defendants' procedures for involuntary retirement for psychological disability afforded plaintiff adequate due process under the Fourteenth Amendment.
Due process is a flexible notion that "calls for such procedural protections as the particular situation demands." Basciano v. Herkimer, 605 F.2d 605, 609 (2d Cir. 1978), cert. denied, 442 U.S. 929, 61 L. Ed. 2d 296, 99 S. Ct. 2858 (1979) (citation omitted). In Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), the Supreme Court set forth three factors to consider in determining whether administrative procedures are constitutionally sufficient:
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.