“Pay Lag” Violates Due Process Rights Of Corrections Officers

Prior to 1999, corrections officers employed by Nassau County, New York were represented collectively with other County employees by the Civil Service Employees Association (CSEA). In 1999, the corrections officers fragmented from the CSEA, and formed the Sheriff Officers Association, and the Association was certified as the representative of a bargaining unit consisting solely of corrections officers employed by the County.

In December 1999, the County met with five law enforcement employees’ organizations, including the Association, 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 a memorandum of 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 member’s then-current rate of pay.

The Lag Payroll Agreement specifically stated that it would be inoperative as to the Association unless certain conditions were satisfied. First, it was subject to ratification by Association members within 45 days. 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 the Association and the County.

Both of these conditions failed to materialize. When the County unilaterally implemented the “lag payroll system,” the Association brought a lawsuit claiming, among other things, that the lag payroll violated the procedural due process rights of its members.

A federal court agreed with the Association. The Court began with the conclusion that Association members had a “property right” in their pay protected by the due process provisions of the Constitution. As put by the Court, “there can be no doubt that an employee’s interest in his salary is a property interest protected by the Constitution. Moreover, many courts have determined that individuals have a constitutionally-protected property interest in similar types of payments.”

Having found a property interest, the Court turned to the second inquiry – what type of “process” members of the Association were due under the Constitution before the County could deprive them of their pay. The County argued that where a deprivation of property occurs at the hands of a governmental body by way of a “random and unauthorized act,” no pre-deprivation hearing need be held so long as there was an adequate post-deprivation procedure available. The Court rejected the County’s “random and unauthorized” argument, finding that the exception did not apply “where the government actor in question is a high-ranking official with final authority over significant matters. [The County’s executives] in this case are precisely the type of high-ranking officials that the ‘random and unauthorized’ exception was not intended to apply. Actions taken by high-ranking officials pursuant to their authority cannot be considered random or unauthorized.”

The Court concluded its opinion by finding that “in order for the County to have properly implemented the lag pay as a new term or condition of employment, the County had a duty to provide the Association pre-deprivation notice, and an opportunity to be heard. These procedural safeguards are not only mandated by the Constitution, but also required under New York state law, which requires public employers to bargain in good faith prior to the execution of a new or modified collective bargaining agreement. These procedural safeguards were not followed by the County in this action. The County acted unilaterally and on its own initiative, without providing the Association with an opportunity to be heard.”

The Court ordered the County to repay all money withheld from the paychecks of members of the Association.

Adams v. Suozzi, 2006 WL 2619659 (E.D.N.Y. 2006).

This article appears in the November 2006 issue