A woman accused Petitioner, while he was a probationary officer in the New York City Police Department, of assaulting and attempting to rape her. Although the woman later sought to retract the charges, the Internal Affairs Bureau investigated the matter. Subsequently, the Police Department terminated Petitioner's employment. Petitioner commenced a proceeding under C.P.L.R. Art. 78, claiming that his dismissal was arbitrary, capricious, and based on racial discrimination. Therefore, he sought reinstatement. Furthermore, Petitioner claimed that he was entitled to a name-clearing hearing, as potential employers may obtain access to his personnel record, which contained findings of misconduct. The supreme court (Appellate Division) dismissed the petition, at which point Petitioner appealed to the Court of Appeals. Although the Court of Appeals denied Petitioner's request for annulment and other relevant issues, it also held that when a discharged government employee seeks expungement of false information, evidence conveying the likelihood of dissemination of damaging information entitles the employee to a name-clearing hearing. The Court of Appeals remitted the case to the Appellate Division for factual determination of the likelihood of dissemination.

Whether the mere likelihood of dissemination of stigmatizing material entitles a government employee to a name-clearing hearing.

Yes. The employee need only establish a likelihood of, and not actual, dissemination of stigmatizing material in order to have the right to a name-clearing hearing.

State of the Law Before Swinton

Prior to Swinton the Court had not ruled on the specific question of whether actual dissemination versus the likelihood of dissemination of damaging information was required in order to trigger a discharged employee's right to a name-clearing hearing. Prior cases raising a similar issue dealt only with employees suing for damages, which made the actions similar to those for defamation. Because defamation requires publication as one of its elements, the court reasoned, actual dissemination of the information was required to trigger a remedy. Despite this, dicta in Petix v Connelie 47 N.Y.2d 457 (N.Y. 1979) suggested that "an entry in a personnel record may in some circumstances so stigmatize an individual as to require a hearing even though not immediately disseminated." Id. at 460. Even so, the court had never required a name-clearing hearing where information had not actually been disseminated. See, e.g., Lentile v. Egan, 61 N.Y. 2d 874 (N.Y. 1984)(holding that mere likelihood of dissemination was insufficient and that actual dissemination was required).

Effect of Swinton on Current Law

After Swinton, a probationary public employee is entitled to a post-discharge name-clearing hearing upon demonstration of a likelihood of dissemination when the employee seeks expungement of stigmatizing material. Note that the ruling does not deal apply to reinstatement or damages. The Court of Appeals noted that the federal circuit courts are currently split on this issue, with a slight majority requiring only a likelihood of dissemination. Dicta in a prior case, Petix v. Connelie, 47 N.Y.2d 457 (N.Y. 1979), left the door open for name-clearing hearings without a showing of actual dissemination if the stigma was great enough. The Court distinguished Lentlie v. Egan, 61 N.Y.2d 874 (N.Y. 1984), despite the fact that the dissent in that case emphasized allegations that dissemination would be automatic, because the Court found these allegations of wide availability unproved. As support for the idea that the choice of remedies should affect the showing necessary for the dissemination element, the Court noted that many of the contrary federal circuit court cases involved suits for damages. See Oliveri v. Rodriguez, 122 F.3d 406, 408 (7th Cir.1997); Ortega-Rosario v. Alvarado-Ortiz, 917 F.2d 71, 74-75 (1st Cir. 1990); Copeland v. Philadelphia Police Dep't, 840 F.2d 1139, 1148 (3d Cir. 1988).

The Court of Appeals also gave some indication of the type of evidence needed to show such likelihood of dissemination. The Court reconciled contrary decisions by asserting that a name-clearing hearing would not become automatic for probationary as well as tenured employees, and that courts would not automatically presume disclosure. To support these assertions, the Court stated that the mere fact that future employers often inquire into circumstances of termination is not enough to establish likelihood of dissemination. In the instant case, Petitioner asserted that his former Department had a policy of disclosure to other law enforcement agencies. Furthermore, N.Y. Civ. Rights Law § 50-a(4) creates a broad exception to police personnel record confidentiality for any situation where a state agency needs to further its official functions.

Unanswered Questions

In cases where a prospective employer makes consent to disclose material surrounding termination a condition for employment, would consent in this case be likely dissemination or voluntary disclosure?

Overall, what constitutes likelihood? A critical component of the inquiry to determine if an employee is entitled to a name-clearing hearing turns on the likelihood of dissemination, yet the Court does not elaborate on what constitutes likelihood. Is likelihood based on a fact specific inquiry or a more general set of considerations?

Survey of the Law in Other Jurisdictions

Several jurisdictions have dealt with the circumstances under which a public employee has a due process right to a name-clearing hearing. However, few state courts have specifically addressed the issue of whether or not likely dissemination of harmful charges by an employer upon termination of the employee would satisfy one of the requirements for a name-clearing hearing. In Massachusetts, a court held that a public employee is entitled to a name-clearing hearing when the employee's termination arises in connection with stigmatizing charges alleged by the employee to be false, which were disseminated or likely to be disseminated to prospective employers. Fontana v. Commissioner, 608 N.E. 2d 1343 (Mass. App. Ct. 1993). An Ohio court similarly held that in certain instances, a city employee has a right to a Fourteenth Amendment due process hearing. Kilburn v. Guard, 448 N.E. 2d 1153 (Ohio 1983). The Kilburn court, however, did not reach question of whether or not the harmful information in connection with the employee's termination must be actually "disseminated or likely [to be] disseminated" since the facts of that case involved an employer who had already disseminated false and defamatory information about the terminated employee. Arkansas law has not addressed the issue of actual versus likely dissemination. A related Arkansas case, however, held that harm to a public employee's reputation, arising from false and defamatory charges of an employer in the course of termination, does not, standing alone, trigger a due process liberty interest warranting a name-clearing hearing. Arkansas Department of Human Services v. Heath, 312 Ark. 206 (1993).