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Pre and Post Termination Hearings: When Public Employees are Entitled to Due Process Hearings

Due to the fiscal woes plaguing many public entities across the United States, not all human resources managers have the luxury of picking up the phone and calling their organization’s attorney every time they experience a legal or quasi-legal issue. As such, it is important that today’s HR managers be cognizant of the fact that the Due Process Clause of the Fourteenth Amendment to the United States Constitution affords both substantive and procedural protections to a range of governmental conduct directed against public employees. Specifically, procedural due process gives public employees, who have a property interest (i.e. a legitimate claim of entitlement under state law to a job) in their employment, a meaningful opportunity to be heard prior to termination. Often times, this procedural due process is the only non-litigation check on public employee termination decisions. Accordingly, it is essential that public HR managers know the status of their entity’s employees and whether those employees are entitled to a pre or post termination hearing.

In the U.S. Supreme Court case of Cleveland Board of Education v. Loudermill, the court held that only employees with a protected property interest in continued employment are entitled to a pre-termination hearing. (Cleveland Board of Education v. Loudermill, 470 U.S. 531,1985). In Board of Regents v. Roth, the Supreme Court held that property interests are not created by the Constitution but rather by “existing rules or understandings that stem from an independent source such as state law.” (Board. of Regents v. Roth, 408 U.S. 564 U.S.,1972). The Supreme Court has also recognized the central role of state or local law in ascertaining whether a protected property interest is present and that the law or practice of a particular jurisdiction substantially determines whether the employee has a protected property interest.

For example, in the U.S. Sixth Circuit Court of Appeals, if a municipal charter reads that a city employee is “at will,” a municipal ordinance, resolution or policy that gives public employees a property right in their jobs is overruled by the municipal charter. Such was the case in Chilingirian v. Boris, where a terminated city attorney attempted to argue that he had a property right to employment based upon an implied contract with the city. (Chilingirian v. Boris, 882 F.2d 200 6th Cir., 1989). The court rejected his argument, stating:

This argument is devitalized by the fact that the city charter governs the terms of the city attorney’s employment and provides for his termination at will. Moreover, the city was not authorized to enter into any contract in contravention of its charter. (See Niles v. Michigan Gas and Elec. Vo., 273 Mich., 255, 262 N.W. 900, 1935 – Under Michigan law, a municipality cannot exceed its charter powers).

Accordingly, notwithstanding Chilingirians protestations to the contrary, no viable means exist for circumventing the termination-at-will language implicit in the charter’s section 4.6 provisions that the city attorney serves at the pleasure of the council.

In addition to a city charter, courts have found several alternative bases for public employees having a protected property interest in employment. When determining whether one of these alternative bases apply, a supervisor must examine:

  1. All state and local laws to determine if there is a statutory, regulatory or common law standard of job security or process;
  2. All governmental codes to determine if there is an arguably applicable ordinance;
  3. The employer’s regulations and operational procedures to determine what, if any, representations about job security are made;
  4. All employee handbooks, manuals, other sources of policies, and all the written and unwritten personnel policies;
  5. The documents executed upon hiring, such as the employment application and materials which provide terms and conditions of employment, and may form a basis for an implied contract argument; and
  6. The practices and customs of the particular employer.

Essentially, public employer must examine all potential sources of provisions governing the employment relationship to determine whether public employees have a property interest in their employment. When examining these sources, public employees are advised to look for the recognized sources of property interests outlined below:

  1. There is a “just cause” standard;
  2. There is an express or implied contract with promises of direct or indirect process;
  3. There is a system of tenure or de facto tenure;
  4. There are promulgated representations of process or of job security;
  5. There is a mutual understanding among the parties of process; and
  6. There is a custom of providing due process.

In Hitchens v. Yonker, the court summarized these alternative sources of a public employees’ property interest in employment by stating, “A property interest worthy of due process protection may be secured by statutes, regulations, implied promises, or by the customs, policies and practices of a local government unit.” (Hitchens v. Yonker, 943 F.Supp. 408, 411, D. Del., 1996).

To summarize, if a public employee is given assurance of continued employment (tenure) or dismissal only for stated causes, the employee has a property interest in their employment. This property interest entitles the public employee to a pre and post termination hearing, unless the municipal charter states that the employee is hired “at will.” Employees hired “at will” can be terminated for any reason and are not entitled to a pre or post termination hearing. Although this information is no substitute for timely legal advice from one’s attorney, still, it should provide the HR manager with some insight into the due process dynamic.

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Authors: Jeanne Humphrey is a joint Juris Doctorate/ Masters of Public Administration student at the University of Tennessee. She also works at a law clerk at the O’Neill, Parker, Williamson law firm in Knoxville, Tennessee. Joseph G. Jarret is a public sector manager, attorney and mediator who lectures on behalf of the Master of Public Policy and Administration program in the Department of Political Science at the University of Tennessee, Knoxville. He is the 2013 president of the E. Tennessee Chapter of ASPA.

 

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2 Responses to Pre and Post Termination Hearings: When Public Employees are Entitled to Due Process Hearings

  1. Justin D. Cofer Reply

    May 28, 2017 at 9:03 pm

    Tennessee is in an interesting situation with Governor Haslam’s Team Act Bill as it tried making all State workers “at will” employees” but the TN Supreme Court ruled that it was in violation of the 14th Amendment. I thought some may find this interesting as I am not an attorney just a state worker who was terminated illegally and fighting against the corruption of this administration.

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