Probationary Officers In West Virginia Have Due Process Rights

As a general proposition, probationary employees do not have due process rights that prohibit an employer from terminating them without a hearing. However, if a state law, contract provision, or other legally-binding mandate requires a hearing, due process demands that a hearing be held.

Such was the case with Mark Dickerson, a police officer for the City of Logan, West Virginia, who was terminated at the end of his probationary period. The City gave no explanation for the discharge, and made no offer to Dickerson for a pre-disciplinary hearing even though Dickerson demanded one.

Dickerson sued, claiming his termination violated his due process rights. In the course of the legal proceedings, the City took the position that Dickerson had been fired for five reasons. As contended by the City, Dickerson (1) used abusive and profane language toward various individuals, (2) engaged in personal matters, (3) left town on one occasion for personal reasons, (4) threatened members of the public and (5) wrecked a police cruiser and, thereafter, misrepresented the speed driven prior to the accident. Dickerson contested all of the reasons, and again demanded a hearing before the City’s Police Civil Service Commission.

The West Virginia Supreme Court held that Dickerson had a right to a hearing. A state statute provides: “No member of any paid police department subject to the civil service provisions of this article may be removed, discharged, suspended or reduced in rank or pay except for just cause, and in no event until the member has been furnished with a written statement of the reasons for the action. If the member demands it, the Commission shall grant a public hearing, which hearing shall be held within a period of ten days from the filing of the charges in writing or the written answer thereto, whichever shall last occur.”

Citing an earlier decision, the Court held that the statute clearly provided “that an employer may not remove a probationary employee during the one-year probationary term without complying with the procedural protections of the statute. The same procedural protections which are afforded a probationary employee during his or her probationary term are required upon non-retention of the employee at the conclusion of the probationary term. These procedures include the right to a written notice of the reasons for the action taken against the employee, and the opportunity for an adversarial hearing. These procedures insure that a fair and correct decision is made, and benefit the City in that they insure that permanent positions on the police force will be filled by the most qualified candidate.”

The Court directed the City to reinstate Dickerson to his employment with back pay, and instructed that any disciplinary action against him could only be taken after a written notice of charges and a hearing.

State ex rel. Dickerson v. City of Logan, 2006 WL 3455250 (W.Va. 2006).

This article appears in the January 2007 issue