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The following
article is reprinted with permission from CPER No. 174
(October 2005). Copyright by the Regents, University of
California. The California Public Employee Relations Program
provides nonpartisan information to those involved in
employer-employee relations in the public sector. For more
information, visit
http://cper.berkeley.edu.
What Is
Due Process?
Emi Uyehara is a partner in the
San Francisco office of Liebert Cassidy Whitmore. The firm,
which also maintains an office in Los Angeles, represents
public agency management in all aspects of labor and
employment law, including labor relations, civil litigation,
and education law. This article is an edited portion of CPER’s
new Pocket Guide to Due Process in Public Employment.
Order at http://cper.berkeley.edu/.
The right to procedural due process is one of the most significant
constitutional guarantees provided to citizens in general and
public employees in particular.
To determine whether an employee is
entitled to due process, a multi-layered inquiry is involved.
Bear in mind that each factor may trigger another level of
analysis, as neither the status of the employee nor the nature
of the deprivation may be dispositive. Most importantly, there
is no fixed definition of what process is due; rather, it is a
flexible principle that varies by situation. Its touchstone is
fundamental fairness.
While the following guidelines set forth
the general requirements regarding due process, they establish
only the floor, not the ceiling, of rights. The entitlement to
due process is created by statute, charter, ordinance, or
other local laws or enactments. Local rules, regulations, and
practices can and often do enhance the rights of employees in
an agency’s jurisdiction. Therefore, to understand what rights
of due process exist within a given agency, the governing
statutes, charter, ordinances, board policies, rules,
regulations, memorandums of understanding, and collective
bargaining agreements must be consulted.
With these caveats, this article provides
a step-by-step guide to due process rights and procedures,
including a discussion of who is protected, under what
circumstances, what actions are covered, what process is due,
and the remedies that are available when the right is
violated.
Sources of the Right: The
U.S. and California Constitutions
The right to due process emanates from two
sources, the federal and state constitutions.
The Fifth Amendment to the U.S.
Constitution provides in relevant part: “nor shall any
person…be deprived of life, liberty or property, without due
process of law.…”
Section 1 of the Fourteenth Amendment to
the U.S. Constitution extends this protection to actions by
the State: “…nor shall any State deprive any person of life,
liberty or property, without due process of law....”
Article I, Sec. 7 (a), of the California
Constitution provides, “[a] person shall not be deprived of
life, liberty, or property without due process of law....”
The right to due process under the state and federal
constitutions, while similar in language, is not identical. As
is true of many rights, the California Constitution is more
inclusive and protects a broader range of interests than the
federal Constitution. At
its essence, due process requires notice and an opportunity to
be heard before the government deprives a citizen of a
significant property interest. The purpose of the guarantee is
to provide procedural protections against the arbitrary taking
of a property interest by the government. In the context of
public employment, the right of due process is triggered by
the deprivation of a property or liberty interest.
What Is a Property Interest?
Public employees are entitled to due
process only if they have a property interest in their
continued employment, position, and/or compensation. Not all
public employment creates a property interest.
The United States Supreme Court defines a
property interest as follows:
To have a property interest in a benefit,
a person clearly must have more than an abstract need or
desire for it. He must have more than a unilateral expectation
of it. He must, instead, have a legitimate claim of
entitlement to it. It is a purpose of the ancient institution
of property to protect those claims upon which people rely in
their daily lives, reliance that must not be arbitrarily
undermined. It is a purpose of the constitutional right to a
hearing to provide an opportunity for a person to vindicate
those claims.
Property interests, of course, are not
created by the Constitution. Rather, they are created and
their dimensions are defined by existing rules or
understandings that stem from an independent source such as
state law — rules or understandings that secure certain
benefits and that support claims of entitlement to those
benefits.
Thus, before a public employee can look to
the procedural protections offered by the right to due
process, the employee must first establish that he or she has
a constitutionally recognized property right. In order to have
a constitutionally protected interest in continued employment
and compensation, the employee’s entitlement to continuing
employment cannot be based on his or her subjective opinion or
unilateral expectation. It must be based on a statute,
ordinance, policy, rule, or employment agreement that provides
that the employee can be discharged or have his or her
employment otherwise significantly impacted only “for cause.”
Who Is Protected?
Not all employees have a property interest
in continued employment. Only those who have a legitimate
entitlement to continued employment are assured of due
process.
‘For
cause’ employees.
Employees who have acquired tenure or permanency in their
position or whose employment can be terminated or otherwise
significantly impacted only for good cause as specified in
local laws or rules are provided with the full array of due
process rights. This is because they have successfully
completed a probationary period, during which they were
subject to summary release. By
acquiring permanency, through statute, ordinance, policy,
rule, or contract, such employees can be dismissed only for
cause as provided by the authorizing procedures.
Who Is Not Protected?
The protections afforded to permanent
employees are in stark contrast to the absence of protections
provided to the following classifications.
At-will employees.
Public employees who are at-will and serve at the pleasure of
the appointing agency do not have a legitimate entitlement to
continued employment. Labor Code Sec. 2922 defines an at-will
position as “[a]n employment, having no specified term,
[which] may be terminated at the will of either party on
notice to the other.” At-will employees have no property
interest in their jobs. Accordingly, they may be released
without due process. If,
however, their liberty interest in their reputation is
implicated, they are entitled to a liberty interest or
name-clearing hearing, as discussed below.
Probationary employees.
Proba-tionary
employees are similar to at-will employees in that they do not
have a legitimate entitlement to or property interest in
continued employment. They may be released without cause
during their probationary period. As
with at-will employees, they may be released without due
process, but under certain circumstances, may be entitled to a
“liberty interest” hearing.
Temporary and substitute employees.
In general, temporary and substitute employees have no property
interest in continued employment when they are hired to fill
in for limited-term projects or periods. As with at-will and
probationary employees, they are not entitled to due process
protections unless their liberty interests are at stake.
What Actions Are Covered?
The right to due process entails a
multi-level analysis that depends on the status of the
employee who is subject to a governmental loss of property and
the nature of the employer’s conduct towards the employee. Not
all adverse actions trigger due process rights.
Generally speaking, permanent employees
are afforded the most due process before deprivation of a
property interest. Unless otherwise indicated, the actions
that are discussed pertain to permanent employees.
Non-permanent employees are not entitled to due process unless
such rights are locally established through negotiations,
policy, rules, or other agency action.
Disciplinary actions.
Significant deprivations of a permanent employee’s property
interest in continued employment trigger the right to due
process. This includes dismissal, suspensions
without pay, and
forced retirement. Demotions
may trigger due process rights depending on whether the
employee is provided with a property interest in his or her
position by statute or local agency policy.
Dismissal.
No case is more synonymous with due process in California than
Skelly v. State Personnel Board. The
State Supreme Court in Skelly held that permanent
public employees have a constitutionally protected property
interest in their continuing employment which can be defeated
only by sufficient cause. Permanent public employees may not
be dismissed or subjected to other significant disciplinary
actions without cause. Their right to employment by statute or
other authority “constitutes ‘a legitimate claim of
entitlement’ to a government benefit….Therefore, the state
must comply with procedural due process requirements before it
may deprive its permanent employees of this property right by
punitive action.”
Suspensions without pay.
While not permanent, a “[s]uspension of a right or of a
temporary right of employment may amount to a ‘taking’ for
‘due process’ purposes.” The
due process to which an employee facing short-term suspension
is entitled, however, is not the same as that to which an
employee facing dismissal is entitled.
Account must be taken of the length and finality of the
deprivation. The
consequences of a suspension and dismissal are vastly
different. The former is an interruption of employment, the
latter is its termination. An employee facing suspension is
entitled to a hearing with notice and an opportunity to
respond to the charges during or within a reasonable amount of
time after the suspension.
An employee placed on compulsory leave or
suspension without pay due to criminal misconduct is not
entitled to a pre-deprivation hearing. The U.S. Supreme Court in Gilbert v.
Homar upheld the right of a public employer to
suspend a permanent employee without pay after his arrest on
drug charges. The Supreme Court concluded that a
post-suspension hearing would provide adequate protection of
his property interest because he would be entitled to backpay
should he prevail.
Forced retirement.
In Barberic v. City of Hawthorne, a
federal district court found that the due process rights of a
former police officer had been violated when she was placed on
involuntary retirement without a hearing.
The court found there was not a
significant distinction between a forced disability retirement
and discharge. In both instances, the job loss is due to
either misconduct or inability to perform. The court awarded
the officer backpay less her retirement benefits.
Involuntary leaves of absence.
Under some circumstances, an involuntary leave of absence may
trigger due process rights. Routinely such leaves are provided
in order to permit the employer to investigate charges of
employee misconduct. If there is no loss in pay and the
employee is entitled to notice and the opportunity to respond
before any deprivation of employment, no property interest has
been implicated and no due process rights are triggered.
If, however, the employee is placed on
involuntary leave without pay, the Court of Appeal has
determined that such leave is akin to an unpaid suspension and
the employee is entitled to pre-deprivation due process.
Constructive discharge.
Employees subject to a “constructive discharge” rule, calling
for automatic resignation for absences without leave (AWOL),
are entitled to pre-termination notice and an opportunity to
be heard by a neutral decisionmaker.
By resigning, or through the manifestation of the intent to
resign evidenced by a failure to report to work, the employee
is deemed to have voluntarily surrendered his or her property
interest in employment. In this situation, the public employer
does not act to deprive an employee of employment and
therefore has no duty to afford the employee procedural
protections either before or after the resignation takes
effect. Nor is such an employee entitled to reinstatement or
backpay. Unlike a disciplinary discharge, resignation from
employment does not seriously damage an employee’s standing
and association in the community nor does it foreclose other
employment opportunities.
What Actions Are Not Covered?
Reprimands.
Although a form of disciplinary action, reprimands do not
entail a loss of property. The reprimand, whether written or
oral, involves no loss of employment, suspension of pay, or
demotion to a lower position. Accordingly, unless locally
established by policy or memorandum of agreement, issuance of
a reprimand does not trigger due process rights. Many
agencies, however, provide the employee subject to the
reprimand with the opportunity to respond orally or in writing
to reprimands and to include such a response with the
reprimand should it be made part of the employee’s personnel
file.
Transfers and reassignments.
Transfers and reassignments sometimes may be disciplinary in
nature. Generally, such actions do not trigger notice and an
opportunity to respond before their occurrence. While an
employee has a property interest in continued employment, he
or she does not have a property interest in a particular site
of employment or department. As is the case with any change in
position, however, local agency rules may provide for more due
process rights.
Layoffs.
Employees subject to layoff are not entitled to due process
protections. Rather, their rights are limited to notice of the
proposed action and agency compliance with the governing
layoff procedures. This
does not include the right to an individual hearing; the
classes of employees affected are entitled to the locally
established procedures that govern layoffs.
Removal from an administrative post.
While a permanent employee has a property interest in
continuing employment, there may be no property interest in a
particular administrative title or position.
Negative evaluations.
A
negative evaluation, although derogatory in nature, does not
deprive an employee of any property right. Accordingly,
negative comments in a performance evaluation do not
constitute punitive action triggering any type of appeal or
hearing.
Placement on reemployment list.
As made clear regarding layoffs, not all separations from
service constitute actions that trigger the right of due
process. For example, an employee’s removal from service due
to medical reasons under a statute that provides for his or
her placement on a 39-month medical reemployment list after
the exhaustion of all accrued leaves, does not entitle the
employee to any prior hearing or notice before placement on
the list.
What Process Is Due?
To determine what process is
constitutionally due, four factors must be considered: (1) the
private interest that will be affected by the official action;
(2) the risk of erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; (3) the
dignitary interest in informing individuals of the nature,
grounds, and consequences of the action and in enabling them
to present their side of the story before a responsible
governmental official; and (4) the governmental interest,
including the function involved and the fiscal and
administrative burdens that additional or substitute
procedural requirements would entail.
As articulated by the California Supreme
Court in Skelly, the balancing of interests entails
weighing “the Government’s interest in expeditious removal of
an unsatisfactory employee...against the interest of the
affected employee in continued public employment.”
The Supreme Court in Skelly agreed
that the state’s statutory scheme violated the due process
guarantees under the Fifth and Fourteenth Amendments to the
U.S. Constitution and Article I, Sections 7 and 15, of the
California Constitution by failing to provide permanent
employees with pre-removal notice and hearing before
dismissal. It determined that in order to meet constitutional
requirements:
Due process does not require the state to
provide the employee with a full trial-type evidentiary
hearing prior to the initial taking of punitive action. *** As
a minimum, these preremoval safeguards must include notice of
the proposed action, the reasons therefore, a copy of the
charges and materials upon which the action is based, and the
right to respond, either orally or in writing, to the
authority initially imposing discipline.
Notice of the proposed action.
An essential component of due process is notice of the action the
employer intends to take towards the employee. Appropriate
notice may vary by circumstance but should generally be in
writing. There is no mandatory fixed number of days concerning
how much time an employee must be given to exercise his or her
right to respond. Rather, the time to respond must be
“reasonable” under the circumstances. Often, statutes or local
procedures such as the collective bargaining agreement may set
forth the number of days prior to the meeting or opportunity
to respond to which the employee is entitled.
Due process was found to be violated where
an employee received notice of termination only
two-and-one-half hours before it was to be effective. A general requirement is to permit at
least five days notice. Employee requests for extensions
should be granted if the request is justifiable.
The employer also should make clear the
level of discipline to be imposed. Notice of a five-day
suspension cannot support a dismissal. In the event notice of
dismissal is provided, a lesser penalty may be imposed since
the employee was provided with and could prepare to defend
against the greater penalty.
Reasons for the proposed action.
Another component of due process is notice of the underlying facts
and disciplinary causes on which the employer relies to
support the proposed action. The proposed disciplinary notice
should set forth the specific statutes, agency rules, or
regulations that the employee facing discipline has violated.
The employee has the right to be given notice of the grounds
and facts that form the basis for the recommended disciplinary
action in order to respond to and prepare for his or her
defense.
Copy of the charges and materials on which the action is
based.
An employee facing proposed action is
entitled to a personal copy of the charges and the materials
on which the charges are based. This does not entitle the
employee to every document relied on by the employer in its
decision. Skelly is a procedural right, not a rule of
evidence. There is nothing in Skelly that
requires the employer to produce all evidence on which it
relies prior to a hearing. Rather, the employee facing disciplinary
action is entitled to “the substance of the relevant
supporting evidence” for the charges.
The Court of Appeal in Gilbert v. City
of
Sunnyvale analyzed the history of due process under
Skelly, its origins and progeny, and rejected the claims
of a discharged permanent public safety officer to all
documents identified in an internal affairs investigation
before his pretermination hearing. Prior to termination,
Gilbert had been given notice of the charges against him and
the internal affairs investigation report that set forth
allegations and evidence of misconduct. The investigation
report noted that many “source documents” which supported the
allegations remained with the Federal Bureau of Investigation
in its active case on the issues. Gilbert sought the source
documents, which included the contact numbers for individuals
identified during the investigation, surveillance reports, and
communications between the police department and the FBI. In
upholding the dismissal, the Court of Appeal held:
Constitutional principles of due process
do not create general rights of discovery. *** What Skelly
requires is unambiguous warning that matters have come to a
head, coupled with an explicit notice to the employee that he
or she now has the opportunity to engage the issue and present
the reasons opposing such a disposition. (Citations omitted.)
Likewise, the Court of Appeal in
Cockburn v.
Santa Monica
Community College Dist. Personnel Commission determined
that a community college district did not violate an
instructor’s right to due process by failing to include in the
charges the previous complaints against the employee. The
instructor admitted that he had sexually assaulted a student,
but contended that the district violated Education Code Sec.
87031, which affords employees the right to inspect materials
in their personnel files that may serve as a basis for
affecting the status of their employment, and provides that
information of a derogatory nature shall not be entered or
filed unless and until the employee is given notice and an
opportunity to review and comment thereon.
The Court of Appeal determined that the
district had complied with the Education Code; the instructor
had notice within a reasonable time of any prior misconduct.
Moreover, his dismissal was based on the sexual assault of
which he had prior notice. Significantly, the Court of Appeal
also determined that the district could have relied on
previous misconduct of a similar nature for which he had
received written notice of unsatisfactory conduct. The
appellate court clarified that the responsibilities of a
school or community college district under the Education Code
do not require the employer to give specific written notice
detailing prior derogatory remarks or misconduct that may be
used in aid of a specific charge.
Thus, while an employee facing
disciplinary action is entitled to notice of the charges
against him or her, and copies of any supporting
documentation, at a subsequent hearing an employer is not
precluded from raising incidents referring to information
regarding conduct previously provided to the employee.
Due process is satisfied if the employee
has had notice of the grounds against him or her and a chance
to respond, even if the written notice of charges is not
exhaustive or omits supporting evidence. Skelly
requires a minimum level of due process protection; it does
not guarantee the right to review all evidence supporting the
charges.
Right to representation.
To provide a meaningful opportunity to respond to charges
alleging disciplinary conduct, the employee should be given
the opportunity to have representation by an individual of the
employee’s choosing. This may take the form of a union
representative, an attorney, or another type of advocate.
However, an employee is not entitled to insist on a particular
representative where that would impair the agency’s ability to
go forward with the investigation.
Right to respond, either orally or in writing, to the
authority imposing discipline.
Due process requires that the employee facing a deprivation of
a property interest be given a meaningful opportunity to
respond before the deprivation takes places. Depending on the
situation, this could be an oral opportunity, a written
opportunity, or both. An employee is not entitled to a full
evidentiary hearing prior to the effective date of the
discipline, but merely the opportunity to respond informally
to an individual authorized to impose or effectively recommend
discipline, but who was not involved in making the initial
decision.
Due process does require that an employee
subject to dismissal be given the opportunity for a full
evidentiary hearing before a neutral decisionmaker at some
point in time. But this can take place after the
discipline is imposed, when the employee appeals or grieves
the discipline through statutory, civil service, or
contractual procedures. Alternatively, the employee may be
provided with an evidentiary hearing before the discipline is
imposed. In that case, the evidentiary hearing is the
Skelly hearing.
Opportunity to Respond
Embedded in the right to due process is
the opportunity to personally be present before the
decisionmaker, to be represented by counsel or an employee
representative, to present favorable evidence, testimonial and
documentary, to refute the charges against the employee, as
well as to challenge the evidence presented by the employer.
This challenge may or may not include the right to
cross-examination. The hearing officer may limit the
introduction of evidence to that which is “sufficiently
material to affect the outcome of the case.”
Due process requires that “‘some kind of
hearing’ [take place] prior to the discharge of an employee
who has a constitutionally protected property interest in his
employment.” Where the governing procedures provide
for the opportunity for a full evidentiary post-termination
hearing,
A pretermination hearing need not
definitely resolve the propriety of the discharge. It should
be an initial check against mistaken decisions — essentially,
a determination of whether there are reasonable grounds to
believe that the charges against the employee are true and
support the proposed action.
....The tenured public employee is
entitled to oral or written notice of the charges against him,
an explanation of the employer’s evidence, and an opportunity
to present his side of the story. To require more than this
prior to termination would intrude to an unwarranted extent on
the government’s interest in quickly removing an
unsatisfactory employee. (Citations omitted.)
Thus, in the case of discharge, an employee is entitled, at a
minimum, to notice of the action, the reasons for the action,
the materials on which it is based, and the opportunity to
respond. This can take the form of an informal hearing subject
to appeal in an evidentiary hearing, or in a predeprivation
evidentiary hearing. There is no right to an informal hearing
if the evidentiary hearing takes place prior to dismissal.
The employee’s right to respond to the
charges against him or her does not include the right to make
false statements. Public employees who make false statements
to agency investigators regarding misconduct charges may face
additional grounds for disciplinary action. In other words, there is no right to
falsely deny charged misconduct. The fact that an employee is
not under oath is irrelevant because the additional charge
concerns making false statements during an agency
investigation.
In
California, an employee does not have the option of remaining
silent in the face of employer questioning, even if answering
the agency’s investigatory question could expose him or her to
criminal prosecution. The employee can be required to
truthfully answer any investigatory inquiry from his or her
agency if given the “Lybarger” admonition. In
Lybarger v. City of Los Angeles,
the California Supreme Court held that a police officer
has no constitutional or statutory right to refuse, free of
administrative sanction, to answer any potentially
incriminating questions posed by his employer. His
self-incrimination rights are deemed adequately protected by
precluding the use of his statements in a subsequent criminal
proceeding. Therefore, an employee given such an admonition
who nonetheless refuses to answer can be disciplined, up to
dismissal, for insubordination in refusing to answer. The
consequences set forth in Lybarger have been extended
to all
California
employees in TRW, Inc. v.
Superior Court.
Thus, under LaChance, Lybarger,
and TRW, Inc., a public employee is required to answer
truthfully any investigatory questions posed by his employer,
and if the conduct at issue could lead to potential criminal
proceedings, an employee who is given the Lybarger
admonition who refuses to answer can be disciplined for
insubordination up to and including dismissal.
Who can hear the charges.
The local governing body does not always hear the charges against
an employee. By statute, ordinance, charter, or contract, the
hearing may be before a hearing officer, a panel, or a
designated management representative. There is only one
governing requirement: “When due process requires a hearing,
the adjudicator must be impartial.”
Pre-deprivation conference. The purpose of the pre-deprivation hearing, commonly referred to
as a “Skelly” conference, is to provide the employee
with a meaningful opportunity to tell his or her “side of the
story.” It is intended to minimize mistakes by affording the
employee the opportunity to present facts relevant to the
proposed discipline and to persuade the decisionmaker not to
proceed.
The employee is entitled to respond
“before a reasonable, impartial, uninvolved reviewer.” Thus, the immediate supervisor of the
employee facing disciplinary action cannot be the hearing
officer, since the supervisor likely is pursuing or supporting
the charges against the employee and therefore is not neutral.
Evidentiary hearing — use of outside hearing officers.
The standard for impartiality has evolved
regarding the use of outside hearing officers. In Linney v.
Turpen, the Court of Appeal affirmed the use of hearing
officers selected and paid for by the city. The court found no
due process violation where the civil service commission
certified the list of qualified hearing officers. Only
qualified hearing officers who met certain criteria were on
the list, and employees and employee organizations could
challenge the appointment of a hearing officer.
The Court of Appeal rejected the argument
that the hearing officer was not impartial and had a financial
interest in deciding the case in favor of the appointing
officer because he was selected by the employer, who had sole
responsibility for paying him. The court found:
Due process does not require a perfectly
impartial hearing officer for, indeed, there is no such thing.
Rather, the principle our Supreme Court has established is
that due process in these circumstances requires only a
“reasonably impartial, noninvolved reviewer.” (Citations
omitted.)
In 2002, however, the California Supreme
Court dramatically altered the ability of a public agency to
use outside hearing officers. In Haas v. County of San
Bernadino, a public agency retained a temporary
hearing officer selected and paid by the county. The court
concluded that while the “requirements of due process are
flexible...they are strict in condemning the risk of bias that
arises when an adjudicator’s future income from judging
depends on the good will of frequent litigants who pay the
adjudicator’s fee.”
The court’s condemnation of paid ad hoc
hearing officers does not extend to administrative law judges
from the State Office of Administrative Hearings, hearing
officers jointly selected and paid for by the parties, or
public agency employees made available through a local office
of administrative hearings. Rather, the prohibition is limited
to hearing officers selected and paid for by the public
employer on an ad hoc basis.
To ensure impartiality when using a system
of ad hoc appointments of hearing officers, the Supreme Court
has suggested that a public agency should: (1) adopt a rule
that temporary hearing officers appointed on an ad hoc basis
will not be eligible for future appointments until after a
predetermined period of time, long enough to eliminate any
“temptation to favor the county,” or (2) appoint a panel of
attorneys to hear cases on a preestablished system of
rotation.
Separation of agency roles.
Due process protections include the right not to be prosecuted
by the local governing body’s own legal advocate. In
Quintero v. City of Santa Ana, a
Court of Appeal concluded that an employee facing discipline
had the right to a hearing before the local body without the
participation of an attorney with whom the local body had an
ongoing relationship. Based on the totality of the
circumstances regarding that previous relationship and
representation, the city attorney’s office failed to meet its
burden of showing that it had properly separated its roles as
advocate for the city and as legal advisor for the personnel
board.
Waiver of the right to respond.
An individual employee may waive his or her right to respond to the
charges. This may occur if the employee fails to respond
within the time limits provided or if he or she admits to the
charges and/or the proposed disciplinary action. Any waiver of
the right to respond should be confirmed in writing.
Additionally, a union may waive an
employee’s right to respond. In Jones v. Omnitrans, where a collectively negotiated grievance
procedure provided a multi-step procedure in which only the
union could request arbitration, a Court of Appeal found no
due process violation. The employee had received notice of the
charges and had two meetings with management to discuss his
grievance. When the union refused to take the grievance to
arbitration, the employee demanded that his employer agree to
arbitration without the involvement of the union. The agency
refused.
The Court of Appeal rejected the argument
that the agency violated his due process rights by failing to
provide him with a post-termination hearing to contest his
dismissal. Relying on the Ninth Circuit’s decision in
Armstrong v. Meyers, the appellate court concluded that “due
process is satisfied by a collective bargaining agreement that
affords the employee notice, an opportunity to be heard and
the opportunity for arbitration of his dismissal, even though
the employee’s union has sole authority to request the
hearing, as long as the union is acting under a duty of fair
representation.”
Other considerations: language, translator, etc.
An employee’s right to due process may include
the ability to understand the charges against him or her and,
if necessary, to present a defense through the use of a
translator. Despite Article 3, Sec. 6, of the California
Constitution, which established English as the official
language of the state, public employers may want to provide
language assistance to eliminate language as a barrier to due
process protections. Similar steps have been taken by
governmental agencies, such as the translation of workplace
statutory rights notices.
Remedies for Violation of Due Process
Pre-deprivation violation.
Before a public employer deprives an employee of a protected
property interest, it must ensure that its local procedures
comply with the constitutional requirements discussed above.
Failure of the procedures to satisfy constitutional principles
will invalidate the taking of the property right and subject
the employer to liability for violation of an employee’s state
due process rights.
The remedy for a failure to provide
predeprivation due process is backpay from the date of
deprivation to the date the evidentiary hearing is held. The California Supreme Court in Barber
v. State Personnel Board determined that the imposition of
discipline prior to affording the employee with the right to
respond is an infirmity that “is not corrected until the
employee has been given an opportunity to present his
arguments to the authority initially imposing discipline.” Before the infirmity is corrected by the
provision of such a hearing, discipline that was imposed is
deemed invalid and the employee is entitled to backpay from
the date of discharge until the date of the agency’s final
decision. Dismissal can be voided if the due process rights of
the employee have been violated and the penalty of discharge
is determined to be excessive for the conduct at issue.
Post-deprivation violation.
Due process requires a full evidentiary hearing as part of the
termination process. A permanent employee who is discharged
without benefit of an evidentiary hearing is entitled to have
the hearing set aside and to have an evidentiary hearing
before a neutral decisionmaker at which the employer bears the
burden of proof. In Townsel v. San Diego Metropolitan
Transit Development Board, a permanent employee who was entitled to continued employment
unless dismissed for cause was provided with notice of the
charges against him and a pretermination hearing that was not
evidentiary in nature. The agency denied the employee’s
request for an evidentiary hearing at which the agency bore
the burden of proof.
While the trial court upheld the public
agency’s actions finding that Townsel had received a
pretermination Skelly hearing, the Court of Appeal
directed that his termination be set aside and that the agency
reconsider its decision following an evidentiary hearing at
which the employer proved its case against the employee. The
Court of Appeal concluded that Townsel was entitled to
reinstatement and backpay only if his termination was found to
be without good cause.
Endnotes
Ryan v.
California
Interscholastic Federation-San Diego Section (2001) 94 Cal.App.4th 1048.
Board of Regents v. Roth (1972) 408
U.S. 564, 577, 20 CPER 71.
Board of Regents v. Roth, supra,
408
U.S. 564.
Skelly v. State
Personnel Board (1975) 15 Cal.3d 194, 27 CPER 37.
However, as will be discussed
below, permanent employees may not be entitled to due process
before removal of interests that do not rise to the level of a
property interest, such as a leadership position, an
extra-duty assignment or stipend, reprimand, or reassignment.
However, public employers are prohibited
from terminating at-will employees in violation of public
policy, such as for discriminatory or retaliatory reasons. See
Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.
Under unique circumstances, however, a
probationary employee may be entitled to due process before
being released if mandated by local rules or procedures. See
Lubey v. City and
County
of San Francisco
(1979) 98 Cal.App.3d 340, 44 CPER 51.
Lubey, supra, involved the
right of probationary employees to a “liberty interest”
hearing that permitted reinstatement during the probationary
period under the city charter. A liberty interest in
employment arises when an allegation seriously damages one’s
standing and associations in the community.
Williams v.
Los Angeles
City Dept. of Water and Power
(1982) 130 Cal.App.3d 677, 53 CPER 38;
Bell v. Duffy
(1980) 111 Cal. App.3d 643, 48 CPER 38.
Skelly v. State Personnel Board,
supra, 15 Cal.3d 194.
Civil Service Assn. v. City and
County of San Francisco
(1978) 22 Cal.3d 552, 40 CPER 59.
Barberic v. City of
Hawthorne
(C.D. Cal. 1987) 669 F.Supp. 985. (No significant distinction
between a forced retirement and discharge.)
Compare Ed. Code Sec. 44951 (permitting
school districts to demote administrators to the classroom for
no cause so long as they are provided with notice of the
“reassignment” by March 15) with Ed. Code Secs. 45302 and
45304, which grant classified employees rights to due process
before they are demoted, and Ng v. California State
Personnel Bd. (1977) 68 Cal.App.3d 600. (The right of
notice and opportunity to respond applies to demotions. While
the demotion was upheld, the employee was entitled to backpay
from the time of the demotion until the date the deficiency
was corrected by notice and the opportunity to respond.)
Supra, 15 Cal.3d 194, at 207-208.
Ibid.
(Citations omitted.) Civil Service Assn.
v. City and County of San Francisco, supra, 22
Cal.3d 552, 560.
Townsel v.
San Diego
Metropolitan Transit Development Board (1998) 65 Cal.App.4th 940, 132 CPER 71.
Bostean v.
Los Angeles
Unified School District
(1998) 63 Cal.App.4th 95, 113. 130 CPER 66.
Civil Service Assn. v. City and County of
San Francisco,
supra, 22 Cal.3d at 564.
Gilbert v. Homar (1997) 520
U.S. 924, 125 CPER 19.
Ibid.
Similarly, employees working for public
school and community college districts are subject to
pre-deprivation suspensions without pay if charged with a
narcotics or sex offense. (See Ed. Code Secs. 44940, 44940.5,
45304, and 87736.) In order to receive pay during their
suspension, they must post a suitable bond. If the district
pursues dismissal of the employee, he or she is entitled to
backpay if acquitted of the charges.
(1987) 669 F.Supp. 985.
Bostean v.
Los Angeles
Unified School Dist.,
supra, 63 Cal.App.4th 95.
Coleman v. Dept. of Personnel
Administration (1991) 52 Cal.3d 1102, 88X CPER 6.
Id.
at 1120.
See e.g., Gov. Code Sec. 19570.
“Disciplinary action does not include a written or oral
reprimand.”
See, e.g., Ed. Code Secs. 44031, 87031, and
89546 regarding the rights of school district, community
college district, and state university employees to review the
contents of their personnel files and to respond to any
derogatory documents in the file.
And see e.g., Public Safety Officers
Procedural Bill of Rights Act, Gov. Code Secs. 3300 et seq.
California School Employees Assn. v. Pasadena Unified School
Dist.
(1977) 71 Cal.App.3d 318.
Ibid.
See e.g., Turturici v. City of Redwood
City (1987) 190 Cal.App.3d 1447, 73 CPER 82. (A police
officer is not entitled under the Public Safety Officers
Procedural Bill of Rights Act to appeal negative comments in
his performance evaluation because they did not constitute
punitive action warranting an appeal.)
Trotter v.
Los Angeles
County Board of Education
(1985) 167 Cal.App.3d 891, 66 CPER 4.
Mohilef v. Janovici (1996) 51
Cal.App.4th 267, rev. den. See Matthews v. Eldridge
(1976) 424
U.S. 319, 335.
Supra, 15 Cal.3d at 212-213.
Id.
at 215.
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