Buschmann v. United New York Sandy Hook Pilots' Ass'n

Christ, J.

This appeal requires us to consider the validity of the petitioner’s dismissal from employment, in the light of claimed .statutory safeguards and procedural due process protections.

*392The petitioner has been seeking a career as a harbor pilot in the New York 'Sandy Hook pilot service. To this end, in January, 1970 he enrolled in a training program which has been referred to. in the record as a ‘ ‘ pre-apprenticeship ’ ’ or “applicant apprentice” program. During the course of his employment in this training program certain accusations not related to the performance of his duties were made against him by a person enrolled, as an apprentice in a statutorily-authorized four-year harbor pilot apprenticeship. The petitioner was subsequently discharged from the pre-apprenticeship training course on the stated ground that his continuance therein would not be in the best interest of either the pilots individually or the United New York Sandy Hook Pilots Benevolent Association, of which the respondent Pilots’ Association is a subsidiary. Although the petitioner’s attorney appeared before the executive committee of the Benevolent Association to argue in this client’s behalf, it is conceded that the petitioner was discharged' without a written complaint having been filed and without benefit of an investigation or an evidentiary hearing. In the instant proceeding the petitioner seeks an annulment of his discharge, and reinstatement, with full seniority rights and restitution of back pay.

Pilotage service in the Port of New York is governed by the provisions of article 6 of the Navigation Law. Section 90 thereof provides that no person may be licensed as a harbor pilot for the Port of New York for certain routes (Sandy Hook, etc.) without first having served as an .apprentice in the New York Sandy Hook pilot service for at least four years. The respondent Board of Commissioners of Pilots is a public body created by statute, exercising State authority (Navigation Law, §87). It is charged with over-all supervisory responsibility in the establishment and conduct of the mandated apprenticeship program. The board has specific statutory duties: it must establish qualifications for entry; it receives and passes upon applications; it must register and certify to the Benevolent Association those persons, accepted into apprenticeship; and it must examine each apprentice .upon completion of apprenticeship training, prior to licensing. However, the statute vests responsibility for the actual instruction of apprentices in the executive committee of the Benevolent Association, subject to over-all board regulation.

It is undisputed that the petitioner was employed by the Pilots’ Association in a training program looking eventually toward appointment to the apprenticeship program. It is also *393undisputed that he never became an (apprentice under the statute. Such appointment can only be made by the Board of Commissioners of Pilots. The petitioner .never applied to the board for such appointment. He was never so appointed and the records of the board do not disclose any designation of him as an apprentice. It is conceded ¡that before a person can become a pilot he must be designated as 'an apprentice and must serve as such at least four years thereafter (21 N-YCR.R 51.3).

The training program in which the petitioner was engaged was an arrangement neither mandated nor authorized by statute. When he became an employee of the Pilots’ Association, the Board of Commissioners had no part in his selection. He must have been well aware that he did not have a board appointment and that he was not an apprentice. The relationship was of employer and employee and it was for ¡the Association to say whether it would keep such a person employed or discharge him.

The arguments advanced by the petitioner at Special Term and on this appeal ¡seek to blur these important distinctions and we are not persuaded that he was, when dismissed, an apprentice entitled to the procedural .safeguards -set forth in subdivisions. 4 and 6 of section 94 of the Navigation Law. That section purports to deal with suspension of pilots and suspension and revocation of pilot licenses. The statute extends certain due process protections ¡to pilots and, ¡ambiguously, to “ person [s] connected with a pilot boat” (subd. 4). We do not read the quoted language as ¡applicable to one in the petitioner’s position; section 94 must be viewed within the context of the other provisions of article 6. The availability of the procedural 'safeguards provided in the ¡statute is limited to those persons who are connected in some statutorily-recognized manner with the pilotage ¡service. Despite 'his enrollment in the preapprenticeship program, the petitioner was quite clearly not .an apprentice within the statutory framework and not within the categories of persons covered by the statute.

The petitioner further asserts that, even if he was not within a class of persons to which the statutory safeguards extend, he was nevertheless entitled to a hearing prior to dismissal on procedural due process grounds under the Fourteenth Amendment. We disagree. The requirements of procedural due process apply only to the deprivation of interest encompassed by the Fourteenth Amendment’s protection of liberty and property.

*394To have a property interest in a benefit, a person clearly must have more than an abstract need oar desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it ” (Board of Regents v. Roth, 408 U. S. 564, 577). In this ease, the petitioner enjoyed no property interest either in continued participation in the pre-apprenticeship program or in advancement into apprenticeship, since it cannot be said that he had a legitimate claim of entitlement to either ‘ ‘ benefit ’ ’.

Likewise, the petitioner’s dismissal on the express ground that his continued participation in the training program was not in the best interests of the pilots or the Benevolent Association implied no protected interest in " liberty ", even granting a broad, sweep to that term (see Board of Regents v. Roth, supra, pp. 572-575).

Further, the record in this ease disclosed no significant “ rules or mutually explicit understandings ” which -might support a claim of entitlement to either continued participation in the pre-apprenticeship training program or to advancement into apprenticeship (Perry v. Sindermann, 408 U. S. 593, 601). In the absence of such factors no constitutionally protected interests were violated, by the petitioner’s dismissal without a hearing.

The judgment appealed from should therefore be affirmed, without costs.