The opinion of the court was delivered by: Spatt, District Judge
MEMORANDUM OF DECISION AND ORDER
This case involves a dispute over a decision by Nassau County to unilaterally impose a pay lag on the correction officers employed by the County. The plaintiff Michael F. Adams, individually and in his capacity as President of the Sheriff Officers Association ("ShOA"), claims that the implementation of the lag payroll by the defendants County Executive Thomas Suozzi, Comptroller Howard Weitzman, and the County of Nassau (collectively, the "County"), violates the Constitution of the United States, the Constitution of the State of New York, the New York State Civil Service Law, and the collective bargaining agreement entered into between the County and ShOA.
The ShOA seeks a declaration that the imposition of the lag payroll is unlawful and an order directing the County to repay the monies withheld pursuant to the lag payroll arrangement. Currently before the Court are motions by the County and the ShOA for summary judgment. For the reasons set forth below, the Court finds that the unilateral imposition of a pay lag by the County deprived the correction officers of their property in violation of the Due Process Clause of the Fourteenth Amendment.
The following facts are largely undisputed, and are taken from the parties Rule 56.1 statements, which both parties rely solely on to factually support their motions for summary judgment, rather than submitting affidavits or other evidence. Prior to 1999, correction officers employed by the County were represented collectively with other County employees by the Civil Service Employees Association Local 100 ("CSEA"). In 1999, the correction officers fragmented from the CSEA, and the ShOA was certified as the representative of a bargaining unit consisting solely of correction officers employed by the County. The County and ShOA agreed that they would continue to honor the terms of the prior collective bargaining agreement that had been agreed to by the CSEA, until such time as an initial ShOA collective bargaining agreement could be negotiated.
In December 1999, the County met with five law enforcement employee organizations, including ShOA (collectively, the "unions"), and advised the unions that fiscal concerns would require that employees be laid off, unless they could agree upon certain cost-saving measures. On December 22, 1999, the County entered into memorandum of agreement ("Lag Payroll Agreement") with the five unions that detailed the ability of the County to institute a "lag payroll" during calendar year 2000. A "lag payroll," if implemented, would allow the County to defer ten days of pay of each union member over the course of ten bi-weekly pay periods. The deferred pay would not be returned until the union member separated from service with the County, at the union member's then-current rate of pay. On December 29, 1999, the County enacted Resolution 574-1999 ratifying the Lag Payroll Agreement.
However, the Lag Payroll Agreement specifically stated that it would be inoperative as to ShOA unless certain conditions were satisfied. First, it was subject to ratification by ShOA members, within 45 days, according to SHOA's internal procedures. Second, it was subject to the execution of a further memorandum of agreement setting forth the terms and conditions of an initial collective bargaining agreement between SHOA and Nassau County.
Both of these conditions failed to materialize. First, the Lag Payroll Agreement was never submitted to the members of SHOA for ratification. Second, the memorandum of agreement regarding a collective bargaining agreement between the County and ShOA was not completed until July 27, 2001, more than a year and a half after the Lag Payroll Agreement was negotiated. The collective bargaining agreement that was eventually executed between the parties never mentions "lag payroll," deferral of pay, or the Lag Payroll Agreement.
Two years later, on August 27, 2003, the County Executive, through his Director of Labor Relations, sent a letter notifying ShOA that it intended to defer the pay of its members beginning with the September 5, 2003, payroll period, pursuant to the Lag Payroll Agreement that was negotiated more than three years before on December 22, 1999. On September 4, 2003, the ShOA filed an order to show cause in New York Supreme Court, Nassau County, seeking to enjoin the County from implementing the lag payroll. The complaint asserts that the lag payroll violates the Contracts Clause and the Due Process Clause of the Constitution of the United States; the Constitution of the State of New York; the New York State Civil Service Law; and the collective bargaining agreement entered into between the County and ShOA. On September 5, 2003, the County removed the action to federal court based on federal question jurisdiction.
On September 9, 2003 a hearing was held before United States District Judge Denis Hurley on the request for a temporary restraining order. Judge Hurley denied the application and set the matter down for a hearing on the preliminary injunction. On September 18, 2003, the case was reassigned to this Court and ShOA withdrew its request for a preliminary injunction in favor of proceeding to an adjudication on the merits. The County proceeded to lag the pay of the members of the ShOA.
The County then moved to stay the case and compel arbitration, pursuant to the Federal Arbitration Act, 9 U.S.C. § 3, on the ground that the Lag Payroll Agreement required arbitration of the dispute. On October 8, 2004, the Court denied the County's request. The Court found that the ShOA never entered into the Lag Payroll Agreement, and thus could not have agreed to submit to the arbitration provisions contained in the agreement. See Adams v. Suozzi, 340 F. Supp. 2d 279, 284 (E.D.N.Y. 2004). On appeal, the Second Circuit affirmed the decision, noting that the County had waived the argument, raised for the first time on appeal, that the collective bargaining agreement concluded between the parties in 2001 gave rise to an independent obligation to arbitrate. Adams v. Suozzi, 433 F.3d 220, 222 n.1 (2d Cir. 2005). The Second Circuit also stated that the County had conceded that the only authority it was relying on to implement the pay lag upon ShOA was the Lag Payroll Agreement. Id. at 224.
On January 26, 2006, both parties filed the instant motions for summary judgment. The County only addresses the federal constitutional claims. It argues that the claim under the Due Process Clause should be dismissed because there are adequate post-deprivation procedures under New York law and the arbitration grievance procedures of the collective bargaining agreement. In addition, the County contends that the actions of the County Executive did not violate the Contracts Clause of the United States Constitution because the decision to implement the pay lag was not an act of the legislature. On the other hand, ShOA seeks summary judgment and an order directing the County to repay the wages on the ground that the County admitted it had no legal basis for applying the lag payroll.
A. The Summary Judgment Standard
Summary judgment is appropriate if the record "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Jeffreys v. City of New York, 426 F.3d 549, 553--54 (2d Cir. 2005); Wilkinson v. Russell, 182 F.3d 89, 96--97 (2d Cir. 1999); In Re: Blackwood Associates, L.P., 153 F.3d 61, 67 (2d Cir. 1998) (citing Fed. R. Civ. P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed. 2d 202 (1986). Even though both parties move for summary judgment and assert the absence of any genuine issues of material fact, the court need not enter judgment for either party. Morales v. Quintel Entertainment, Inc., 249 F.3d 115, 121 (2d Cir. 2001); Heublein, Inc. v. United States, 996 F.2d 1455, 1461 (2d Cir. 1993). Instead, each motion must be examined on its own merits, and all reasonable inferences must be ...