the next case on the calendar is richards and the new york city board of education may please the court my name is jay it go it's i represent rosemary richardson and we're here before you to seek vindication of her rights as a thirty year tenure employee of the department of education who retired without any charges pending against her but yet secret way d o a issued a determination which had never notified her about which took away her rights to prospective employment with the department of education now the court below school lying on  the abramson case and the finley case which are both cases that emanate from this court stated that she had no rights to prospective employers employment  because she had resigned that she had no rights once that happened but none of the cases neither of those cases involved people with well established tenure rights  protected her and the chancellor as regulations give a retired tenured employee continuing rights even after retirement what are those those rights and how do they the none of them are right to be hired by a consultant or to get a security clearance from the department of education are they not not not not specifically however the chancellor is regulation work as a substitute it's not that funny kind of right i mean the it says the chancellor or the whatever the official in charge can appoint that person to be a substitute teacher now it's not really it says a retired employee may perform substitute service correct but only if they're invited that they have no right to say i can come back and do this i want to work there put me in place i'm with it with respect i don't think that that's the way it works it doesn't work the way it works is not like the chancellor makes a peremptory decision after somebody retires and says oh well you can work and not work it gives them the right to work ok and once they there's a big difference if i'm a teacher with ten year i can't be told don't come back next year we don't want you anymore but if i am a retired teacher the principal or whoever hires substitutes or assigns them to particular places has no obligation to call me ever strike and certainly has no up and has is there any reason why if the principal has a qadri of licensed substitute teachers available a group of retired teachers available is there any principal ellie that says that the principal l has to pick this person rather than that person now clearly no if the if the person making the decision said  oh i have a bunch of people here there's a winch i don't want him because he did something bad once that was never adjudicated they never had a hearing on the principal has unfettered discretion to decide to hire it quits instead of lynch for the substitute gig well the principal does have unfettered discretion and if we take into account the real life of the way the school system works there are thousands of schools throughout the city and each richardson was employed i and in fact the period of time in which i went on a contract they were supposed to bring that investigation to a conclusion should have occurred before she retired so and let's get stick with the same issue for russia for trying to understand what actually happens and i'm interested in your point is there evidence in the record are you telling that as evidence in the record that there is a master list of retired teachers eligible for substitute jobs or of all people eligible for substitute jobs that individual principals would consult well i think the converse is true what the what the regulation itself says if you retire when there are charges filed against you you don't have the right to work as a substitute it says that specifically it doesn't say if you retire when there is an on complete when they're there and when there was an investigation at some point in your career that you're deprived of this right to work as a substitute so it's oh so the way this works this way well i hear i hear the fairness argument i understand the fairness argument that this is not a case where somebody retired or at least as a reasonable jury could conclude it's not a case where somebody retired while they were they knew they were under the gun where a charge had been filed and they'd jump out they retire before it can be adjudicated it's not that kind of case and that does create a fairness issue but i'm trying to understand the operation of this prospective employment the i mean how is there any evidence about how it does work you're saying that in practice this blacklisting terminated her right to be a substitute teacher because in reality there's a list that she's not on or can't get on of course she never did she ever try to get on is there an actual list for us was there any evidence that that's how it works what that what there is  list if you're on the eligible list you can't work as a substitute that is that and that much is clear she was deprived of the right to be a substitute teacher which is not a right that that's not something she ever applied for she applied for something different rector of somewhere else but from a constitutional analysis a right to work as a substitute is a right ok and once you have a property right then there's a constitutional implication of being deprived of that right without notice and th and i'm want to make sure i understand the record that you did not rely on the chancellor's regulation is that correct it wasn't argued before the below and i will admit that and we weren't frankly aware of it at that at that particular moment in time and somebody could say well you should've raised that however this court sits directly as a as in a rich court of a regional jurisdiction for determining this issue and this will settle second second circuit case law which says you have the right to make this determination and i'm not asking you to do anything on torrent by pointing out this regulation to you it's very interesting point that was made by the corporation counsel's office on behalf of the a week and a footnote in their brief they actually state that under thirty twenty any they may never had she continued to work has brought charges against her yet they imply they say that even though they might not have ever brought charges against her had she continued to work she can still be blacklisted without any notice whatsoever which is what and i think that's kind of a very telling admission by the corporation counsel in their in their notice because the rights of the thirty twenty a and the c s a contract a very clear that you can't punish a tenured employee he without due process without filing the charges and if they had filed charges which they should have done if they were going to do it they should have done it before she retired it's not like they were on notice that she was retiring she was required suppose a retired teacher is publicly accused of some form of misconduct you know we often hear and this is of course not your case but we often he of teachers accused of sexual misconduct with students long after the event when someone in their adulthood decides to reveal something that they claim happened to them suppose a retired teacher is accused of such misconduct while he or she was a tenured teacher but now they're retired the commissioner puts them on a blacklist would there have to be a notice and hearing in your view of that i think you would have certainly have to be notice and and yes a hearing and that's because the class because the person was once a tenured teacher and retains this right under the chancellor's well the regulation to be a substitute i think the chances regulations cannot be cannot be looked in isolation of thirty twenty and the union contract it's all part of a package and that package results in a property right which be impinged upon without due process now of course you know a sexual allegation of the coin your honor is suggesting is just as is a very charge very serious i understand but that's all the more all the more reason why there should be a hearing before somebody gets accused of it would be the argument i understand that right now i'm just trying to get at there is even if the allegations arise after the person has retired you would be basically taking the same position that if they go in with your own as an analogy as you as your analogy one that the truck that the sexual activity took place while the peasant was employed i would think that they would need certainly certainly a charge like that and i mean then would they would get into a liberty interest of stigma plus because nobody nobody would say that the publication let's say of a charge like that and putting somebody on a list without a right an opportunity to be heard  we get into a liberty interest here i'm just talking about a prominent journalist i think you good morning your honor is may it please the court i am merrill hall and i represent the pallies in this matter the court has really hit on the fundamental and party and this case which is does plan to have a protected property and trust a security clearance like dio he or prospective employment with the agency and she does not opposing counsel and make this case about whether a proper procedure is word here to this question a secondary to that threshold and query whatever rate she had had as an act of tenure an employee at dia we was terminated with her voluntary retirement and she is unable to point to any provision in the state education law the chancellor's regulations to actually work as a substitute because it's in the discretion of somebody a principal or someone to decide to invite is that not at least that's the give a right to be considered  says you are some you're somebody who may be recalled it's permissible for the whoever principle chancellor to require you to service but now ms richardson is not eligible to be recalled based on being on the ineligible list does that not deprive her of something if not a right to actually be in any particular classroom and any classroom at all at least  right to be appointed by a principal who thinks she's a good teacher who should be recalled to substitute service as a national matter plaintiff isn't seeking substitute service she is seeking perspective employment at the agency but in terms of your question about substitutes service she was and fact given and her veil for the security clearance and given an opportunity to explain her record and did not take that opportunity to defend herself i think i mean we're on a motion to dismiss so there's been no discovery in this case however my understanding from speaking with a client is that there is no bender and given that plain to have had retired during the pendency of the proceedings against her and this was in fact the only avenue available to d o b under the circumstances all they could do was look at the substantiated literal list there is no thing that the principal in the substitute situation or the vendor here would consult and say i have to before i hire this person i would check and see which is on the list on the other hand there is something the flag that if the person with the flag makes an application it's going to be noted that they had this incident of this investigation right and the upshot of that  out about the substantiated misconduct now to the extent that an interview with with the vendor or with the human resources or the d o b for the security clearance of human resources of the dia we for the security clear was made it to deny her the security clearance i'd also on the point state education law thirty twenty i note that it's not clear that law would have applied to this case but plaintiff now just charges in the process precisely so it's sort of a case of where you can't have it both ways because deo we couldn't bring any charges against her after she had retired because she was no longer an active tenure employee but conversely no longer exercise her potential procedural rights under that statue and cases such as abramson and family show that procedure in other words if anyone be the former employee retired employee and someone has never had any contact with the applies for a job with a vendor and requires a security clearance is there any regulation of that says what has to happen can the department deny security clearance its own discretion or is there some limitation on their ability to do that i have an exhaust reviewed all of the regulations that could potentially pertain to security clearance but as far as the record in this case there's nothing that would circumscribe that discussion to deny a security clearance and under the circumstances of the case in question unless this court has any further questions we respectfully ask the court to affirm just a couple of quick points if i may your honor counsel just suggested there was an ineligible list i went direct to the court's attention to age twenty eight twenty nine where the recommendation t challenge recommendation here where it says is the recommended recommendation of this office that rosemary richardson be placed on the n l a u n l in the n l tubal list so the suggestion that there is no ineligible list is not correct was it well it's an interesting question about what the reality of the world is but i guess you'd say you've certainly allege and you even have documentation that you just referred to such a reference so that's not what it is maybe that's a factual issue that needs further development and i would say one other thing if i might add that section thirty twenty eight does not speak when we talk about retirees rights under thirty twenty thirty twenty a applies to people who continue to enjoy the benefits of tenure and i would say to this morning and it's tenure so one question is whether someone who is retired is continuing to employ enjoy the benefits of sr and the statute in other provisions specifically refers to retirees different as a different class of people than those by my reading of the statute or enjoying the benefits of tenure i hear what your honor is saying however when combined with the chancellor's regulation which gives a continuing right to enjoy the benefits of being hired under certain circumstances that is a benefit of tenure and so therefore it wouldn't have if you hadn't been correct correct non tenured teacher who resigned would not have the benefit or some other lapsed i'm not understanding the argument that the time limits there there's nothing that i can find in the c v a that requires that an investigation conclude within a hundred eighty or two hundred ten days there's a mandate that the department shall review investigations th now and they're in title in the employees are entitled to notice of the investigations results but i couldn't find and it would seem a little surprising to me to find that there's an mandated investigation conclude within a specified period clearly clearly there's no mandate that it conclude with an at time however that time limit which is contained in the continue in the union contract presupposes that they can act within the time limits set forth there and one of the ironies of this case one of the charges that were brought up against miss richardson was that she wasn't and hearing to certain time limits involving c a c cases and here you have the deal we not adhering to time limits was informed of that choice or investigation though she was under investigation and she didn't receive anything further ever will well but she retired or july first correct so in less she had no basis for not believing she was still on your investigation i didn't just say that she had no basis she had no basis one way or the other to conclude that she was continuing under arrest as she investigation or not counsel of the deal way has suggested that had she continued to work in a footnote they say she might never been faced with charges and and if she was still working to may that's in the context of saying there's an investigation ongoing if she'd been exonerated they would not have proceeded with formal charges if she if the charges are substantiated they would have proceeded with formal charges but the fact that she has the opportunity to give the tenured employee the proper family it was untenured but they don't see it doesn't seem to turn on that but the process that would be due well i think when we talk about that and what might miss miss richardson could do what we should've gone to what the deal we could've done there's nothing in the regs there's nothing in the statute which says that once mr richardson retired she couldn't have been sent a notice of the conclusion of this investigation that stated that started before while she was there and then she would have had the right to contest that footing even after she retired she still had union rights she still have the right to be represented by the union and she could tiley article seventy eight proceeding in two thousand and eleven and if she would have prevailed on that she would not have suffered the deprivations on the loss of income that she suffered as a result of their past their putting her in  without ever telling her mother that it is the at home curse you have filed an article seventy eight proceeding when she was denied the security clearance she could have filed it and in fact if you loses here truth she still has the right to file an article seventy eight because the article seventy eight was part of her complaint and the reason the court didn't escape exercise supplemental jurisdiction was that the basic it concluded that the federal that the basis for federal jurisdiction had gone away because the court determined that she had no fear she had no constitutional right however she still could timely file an article seventy eight but where she had to vindicate her constitutional rights and  in the case we would also consider you know argue to the court below that supplemental jurisdiction would be