Opinion
02-CV-0243E(F).
August 9, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
On March 8, 2002 petitioner Michael J. Flaherty, Jr. brought an Article 78 proceeding in New York State Supreme Court, Erie County, on behalf of himself and, purportedly on behalf of others similarly situated, asserting claims for alleged violations of petitioner's equal protection and due process rights. Flaherty seeks a declaration that Paragraph 62 of the Erie County Budget Resolutions approved on November 21, 2001 (the "Budget Provision") is unconstitutional, null and void and an order directing the County Personnel Commissioner to provide petitioner (and others similarly situated) with wages and benefits for the calendar year 2002 in accordance with the County Legislature's Resolution of July 15, 1999. This proceeding was removed to this Court March 28, 2002. Respondent moved to dismiss the same day. Such motion will be granted in part and denied in part.
When ruling on a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"), this Court must "accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiffs's favor" — Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.), cert. denied, 513 U.S. 836 (1994) — and cannot dismiss the complaint "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, this Court must not consider whether the claims will ultimately be successful, but merely "assess the legal feasibility of the complaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998).
The Budget Provision implemented a salary freeze in 2002 for managerial/confidential employees, including members of the District Attorney's Office ("DAO"). Flaherty is employed by the DAO as the Assistant Chief of the City Court Bureau. Pet., at ¶ 1. Attorneys in the DAO — such as Flaherty — are "classified as confidential employees, and as such, are prohibited by law from becoming members of a collective bargaining unit." Id. at ¶ 7. Consequently, such confidential employees are prohibited from being parties to a collective bargaining agreement such as that between the County and the Civil Service Employees Association, Inc., Local 1000 A.F.S.C.M.E., AFL-CIO, Erie Unit of Local 815 reached in or about July 1999 ("CBA"). Id. at ¶¶ 5, 7. The CBA covered "wages and fringe benefits for Erie County's white collar bargaining unit employees for the period January 1, 2000 through December 31, 2003." Id. at ¶ 5. Subsequently, "[o]n July 15, 1999, the County Legislature adopted a Resolution, referenced as Comm. 14E-4, approving the [CBA] and authorizing the County Executive to execute the [CBA]" (the "July 1999 Resolution"). Id. at ¶ 6. The July 1999 Resolution further stated
"the said benefits and salary schedule or percentage increase [of the CBA] be extended to employees of the County not covered by a bargaining unit, including managerial/confidential, part-time, hourly, seasonal and flat salaried employees;" Id. at ¶ 8.
The benefits referred to by the July 1999 Resolution were contained in the CBA, which provided that County employees covered by the CBA were to receive scheduled wage increases and other benefits. Id. at ¶ 9. Included among such benefits was the fact that "the County would pay the full cost of the lowest four (of 5) health insurance plans offered to County employees, except that all employees hired on or after January 1, 1993 were required to contribute 10 percent of the County's obligation toward their health insurance coverage." Ibid. Petitioner also alleges that, throughout his tenure at the DAO, "the County Legislature had consistently adopted similar resolutions, which extended to confidential employees, such as petitioner, the wages and fringe benefits set forth in Erie County's collective bargaining agreements covering its white collar workers." Id. at ¶ 10. Petitioner and all other Erie County employees not covered by the CBA received the same benefits as CBA-covered employees pursuant to the July 1999 Resolution. Id. at ¶¶ 5-11.
In October of 2001 the County Executive asked the DAO to "voluntarily agree to a `salary freeze' in 2002 for its managerial/confidential employees." Id. at ¶ 12. The District Attorney, Frank J. Clark, Esq., declined this request and countered with a proposed budget setting forth line item deletions that would provide greater savings than the alternative savings realized through a one-year "salary freeze." Id. at ¶ 13.
The County Executive submitted his 2002 Budget Resolution on November 9, 2001. Id. at ¶ 16. Paragraph 62 thereof sought to rescind the wage increases and benefits previously provided by the July 1999 Resolution and requiring all confidential/managerial employees to contribute 10% of the cost of their health insurance coverage (regardless of the date of hire). Id. at ¶ 17. Clark presented his proposed budget to the County Legislature on November 14, 2001. Id. at ¶¶ 13, 18. The County Legislature adopted Paragraph 62 of the County Executive's 2002 Budget Resolutions on November 21, 2001. Id. at ¶ 20. Consequently, in the first pay-period of 2002, Flaherty and other confidential/managerial employees were compensated at their 2001 levels. Id. at ¶ 21.
Paragraph 62 applied only to confidential/managerial employees — i.e., it did not rescind the benefits and wages of part-time, hourly, seasonal and flat salaried employees. Id. at ¶¶ 24-25.
Flaherty alleges that some confidential/managerial employees were exempted from the salary freeze, including employees at the Buffalo and Erie County Public Libraries who thus received wages and benefits consistent with the July 1999 Resolution (referencing the CBA). Id. at ¶¶ 22-23. Moreover, part-time, hourly, seasonal and flat salaried employees also received increased wages and benefits as per the July 1999 Resolution (referencing the CBA). Id. at ¶ 25.
Flaherty and the County's confidential/managerial employees lack any property interest in the wage increase and benefits they seek because no statute or contract grants them such. See Leventhal v. Knapek, 266 F.3d 64, 77 (2d Cir. 2001) (affirming dismissal of due process claim because state employee lacked a property interest in discretionary salary increase or job grade where no contract or statute gave rise to such); Bernheim v. Litt, 79 F.3d 318, 323 (2d Cir. 1996) ("To state a cause of action under the due process clause, a plaintiff must show that [he] has a property interest, created by state law, in the employment or the benefit that was removed *** [and that] where the complained-of conduct concerns matters that are within an official's discretion, entitlement to that benefit arises only when the discretion is so restricted as to virtually assure conferral of the benefit."); New York City Managerial Employees Assoc. v. Dinkins, 807 F. Supp. 958, 973 (S.D.N.Y. 1992) (dismissing due process claim because city's managerial employees had no entitlement to raises and because salary freeze did not give rise to a due process violation). In Dinkins — involving a similar challenge by the managerial employees of the City of New York when the mayor instituted a "salary freeze" — the court stated:
"Simply put, there is no due process violation because plaintiffs and other managers have no legitimate claim of entitlement to a particular salary increase, and because, in any event, defendants' salary actions constitute a type of legislative classification that the courts consistently have held does not give rise to a due process violation." Dinkins, at 973.
Such is true here.
The July 1999 Resolution created no right — let alone a vested right — to raises and benefits. Cf. Koch v. Yunich, 533 F.2d 80, 86 (2d Cir. 1976) ("Obviously a salary fixed by a municipal body is a benefit that can be either diminished or increased ***".). Indeed, the July 1999 Resolution was a non-binding legislative action. As such, the rights it conferred were discretionary and the Legislature, in its discretion, validly abrogated the July 1999 Resolution when it subsequently passed the Budget Provision in 2001. See Erie County Charter, § 201(b), (f); White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1062 (2d Cir.) (finding that "[a]n interest that state law permits to be terminated at the whim of another person is not a property right that is protected by the Due Process Clause."), cert. denied, 510 U.S. 865 (1993). Consequently, Flaherty's due process claim will be dismissed.
With respect to petitioner's equal protection claim, respondent cites no authority that persuades this Court to dismiss petitioner's equal protection claim at this stage. Moreover, this Court declines respondent's invitation to convert its motion into one for summary judgment absent discovery on the issue of whether petitioner is similarly situated vis-à-vis any confidential/managerial employees other than those at the Library. In any event, respondent may seek summary judgment at a later date.
To the extent that Flaherty invokes New York's Constitution as well as the Fourteenth Amendment to the United States Consitution, such claims will be analyzed in tandem inasmuch as the Equal Protection Clause of New York's Constitution is no broader than its federal counterpart. See Under 21, Catholic Home Bur. for Dependent Children v. City of New York, 65 N.Y.2d 344, 360 fn. 6 (1985).
Accordingly, it is hereby ORDERED that respondent's motion to dismiss is granted to the extent that petitioner's due process claim is dismissed but is denied to the extent that it seeks dismissal of petitioner's equal protection claim, and that respondent shall have thirty days from the date of this Order in which to serve and file an Answer.