Criminal Trial Satisfies Employer’s Due Process Obligations

In a rather stunning decision, a federal court of appeals has found that a criminal trial to which an employer is not a party can satisfy an employer’s need to provide due process to an employee in an employment situation.

The case involved Kraig Graham, a probationary police officer with the City of Philadelphia. On November 1, 2001, the Department received a complaint that Graham was “having sex with a 13-year-old girl.” Officers from the Department’s Special Victims Unit and Internal Affairs Division investigated the report and forwarded the evidence they compiled to the Philadelphia District Attorney.

On December 3, 2001, Graham was arrested and charged with statutory sexual assault (a second-degree felony) and corrupting the morals of a minor (a first-degree misdemeanor) under Pennsylvania law. At the time of his arrest, Graham was informed of his Miranda rights and had an opportunity to confer with his lawyer and union representative, but declined an opportunity to respond to the charges against him. The Department terminated Graham’s employment upon his arrest pursuant to its policy of terminating any officer arrested for a crime. The Department gave Graham no hearing before terminating him.

A jury acquitted Graham of the charges. Graham then sought reinstatement as a police officer with the Department. The Department refused to reinstate Graham pursuant to its policy of not reinstating any officer terminated because of an arrest, even where that officer is acquitted at trial. Graham also requested that the Department provide him a so-called “name-clearing hearing” at which he could present evidence of his innocence of the crimes with which he had been charged. When the Department denied this request, Graham filed a lawsuit claiming he had the constitutional right to a hearing.
Since Graham was a probationary employee, he had no “property right” to his job, and thus no right to the standard set of pre-disciplinary procedures required under the Loudermill rule. However, since the allegations against Graham were serious enough to foreclose his ability to be a police officer, the Court found that he had a so-called “liberty” due process right to a “name-clearing” hearing. “Liberty” hearings are akin to Loudermill pre-disciplinary hearings, but are typically much more abbreviated, and are only triggered by an employee’s termination.

The federal appeals court found that the City’s due process obligations to Graham were met by Graham’s criminal trial, a proceeding to which the City was not even a party. The Court acknowledged that “Graham’s interests are genuine and weighty. He has an interest in removing any tarnish to his reputation caused by his arrest, the criminal charges which led to the arrest, and the events that flowed from the arrest and charges. In so doing, he seeks, among other things, to improve his prospects of securing future employment as a law enforcement officer.”

However, the Court observed that “Graham nowhere suggests that his criminal trial was unfair or in any way suppressed his ability to refute the allegations against him. Nor does Graham suggest that he might offer at a name-clearing hearing new evidence or evidence not presented at trial supporting his actual innocence. As such, Graham’s trial substantially vindicated his reputational interest, and significantly reduced the prospect that he would be erroneously deprived of that interest.”

The Court also questioned how Graham could possibly benefit from a name-clearing hearing, noting: “Requiring a name-clearing hearing after a criminal trial resulting in an acquittal would add little value at best. On the one hand, Graham would be permitted to put on evidence aimed at proving, perhaps by a preponderance of the evidence, that he is actually innocent of the crimes with which he was charged. But the mere occurrence of a name-clearing hearing would only subject Graham to further public scrutiny. And the City would have the opportunity to challenge Graham’s evidence and cast greater doubt on Graham’s innocence than now exists following his acquittal.”

The Court also found that the City’s interests argued against a name-clearing hearing, concluding “the government has a strong interest in preserving its officials’ ability to make personnel decisions and communicate the reasons for those decisions to the public, particularly where, as here, the decisions implicate matters of heightened public concern such as alleged sexual assault of a minor by a police officer. The government also has an interest in conserving public resources, and requiring a name-clearing hearing under these circumstances would tend to undermine that interest.”

Graham v. City of Philadelphia, 2005 WL 678552 (3rd Cir. 2005).

This article appears in the May 2005 issue