The opinion of the court was delivered by: WEXLER
Pursuant to the mandate of the Second Circuit, this Court directs the parties to participate in a name-clearing hearing conforming to the requirements of due process. See Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 633 (2d Cir. 1996). Familiarity with the facts and procedural history of this case are assumed. Presently before the Court is plaintiff's application for an order setting forth procedures for the conduct of the hearing.
The parties agree that both plaintiff and defendants may be represented by counsel, shall have the right to subpoena witnesses, present witnesses and other evidence, and cross-examine each other's witnesses. Three issues remain to be decided: 1) who will conduct the name-clearing hearing, 2) who will bear the burden of proof, and 3) whether a stenographic record of the hearing will be made.
I. Who Will Conduct the Name-Clearing Hearing
Correctly contending that due process requires the hearing to be conducted by an impartial hearing officer, plaintiff suggests that the hearing officer be selected from the American Arbitration Association in accordance with its National Rules for the Resolution of Employment Disputes. Defendant suggests that the hearing be conducted by Dr. Anthony Cavanna, the current Superintendent of the defendant school district. Dr. Cavanna did not participate in the decision to terminate plaintiff from her position as Assistant Principal and, in fact, did not assume the position of Superintendent until some three years after plaintiff's termination. Plaintiff opposes the selection of Dr. Cavanna, arguing that an officer should not serve as both the investigator and adjudicator of the charges. Plaintiff further asserts that Dr. Cavanna is biased against her because he is an employee of the school district, serves at the pleasure of the Board of Education under a written contract, has told her that he is "knowledgeable" of her case, did not converse with her when they encountered each other at a memorial service for a former member of the Board, and is biased against the faculty and staff of the school district as evidenced by what plaintiff refers to as a "letter of censure." The letter, apparently authored by "The Faculty of Plainview Middle School," is a laundry list of teachers' complaints about Dr. Cavanna's management style. Plaintiff also asserts that Dr. Cavanna is biased because, in October 1997, the school district declined to appoint her to the position of Social Studies Department Chairperson K-12.
As the Supreme Court instructs, an impartial decision maker is a hallmark of a fair hearing comporting with due process. See Goldberg v. Kelly, 397 U.S. 254, 271, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970) ("an impartial decision maker is essential"). However, the Court has squarely rejected the notion that the decision maker at a name-clearing hearing cannot be both an investigator and adjudicator. Withrow v. Larkin, 421 U.S. 35, 58, 43 L. Ed. 2d 712, 95 S. Ct. 1456 (1975) ("the combination of investigative and adjudicative functions does not, without more, constitute a due process violation"). To the contrary, there is a presumption of honesty and integrity on the part of adjudicators that must be overcome by evidence of actual bias. Id. at 47. Evidence of personal animosity, or pecuniary interest, or evidence that the adjudicator had formed his opinion before the hearing illustrate the nature of the showing necessary to overcome the presumption. Id.; see Johnson v. City of Wichita, 687 F. Supp. 1501, 1510 (D. Kan. 1988) (although name-clearing hearing requires impartial decision maker, "substantial showing of personal bias is required to disqualify a hearing officer or to obtain a ruling that a hearing is unfair").
Moreover, appointment of a third-party arbitrator would be inconsistent with the purposes served by a name-clearing hearing. "To be meaningful, the name-clearing proceeding must be run by the same actor who diminished" the plaintiff's reputation. Limerick v. Greenwald, 666 F.2d 733, 735 (1st Cir. 1981); see Rosenstein v. City of Dallas, 876 F.2d 392, 396 (5th Cir. 1989) (purpose of name-clearing hearing is to "provide the employee with a public forum to clear his name before the governing body that discharged him"). In contrast to a third-party arbitrator, Dr. Cavanna, as a member of the governing body that terminated plaintiff as a probationary principal yet who took no part in the decision, is an appropriate person to serve as hearing officer.
As for plaintiff's charges of bias, she has not met her burden of convincing this Court that Dr. Cavanna is unlikely to act with honesty and integrity. Plaintiff's conclusory assertions that Dr. Cavanna will be biased because he is employed by the school district, serves under contract to the Board of Education, and has knowledge of her case does not suffice. As the Court noted in Goldberg, "prior involvement in some aspects of a case will not necessarily bar [an official] from acting as a decision maker," provided he has not participated in making the determination under review. 397 U.S. at 271. Plaintiff's assertions regarding the so-called letter of censure and Dr. Cavanna's disinclination to talk to plaintiff at a memorial service do not rise to the level of a showing that Dr. Cavanna lacks honesty or integrity. Finally, with respect to the school board's decision not to hire her as a department chairman, plaintiff submits no evidence tending to show that the hiring decision was impermissibly biased or even that Dr. Cavanna was involved in that decision. The Court concludes that Dr. Cavanna will conduct the name-clearing hearing as hearing officer and serve as decision maker.
The Court takes this opportunity to remind the parties that due process requires that "the decision maker's conclusion . . . must rest solely on the legal rules and evidence adduced at the hearing." Goldberg, 397 U.S. at 271. Additionally, "to demonstrate compliance with this elementary requirement, the decision maker should state the reasons for his determination and indicate the evidence he relied on . . . though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law." Id. However, in remanding this matter, the Second Circuit observed that:
Should the charges be proven false, the district court should consider the factual and legal merits of Donato's claim for damages, a subject we do not reach or address. If the reasons for termination are shown to be accurate, that ends the matter.
96 F.3d at 633. Because the Second Circuit's opinion contemplates further proceedings in the event that the reasons for termination are shown to be inaccurate, this Court directs the hearing officer to thoroughly document his findings and explicate his ...