Civil Service Commission Cannot Change Basis For Discipline

Christopher Parent is a police officer employed by the City of Bellevue, Nebraska. During firearm training on August 28, 2007, Parent had significant problems getting up from one knee throughout the course of the exercise. The City believed that Parent’s excessive weight caused the difficulty with the firearm training.

The City eventually terminated Parent for violating the Department’s rules requiring officers to demonstrate appropriate physical endurance and agility.

Parent appealed the termination decision to the City’s Civil Service Commission. The Commission concluded that Parent did not have “a level of physical conditioning to safely perform the duties of a police officer” and also found that Parent’s termination was justified by a Nebraska state statute regarding the minimum standards for police officers.

The Nebraska Court of Appeals set aside Parent’s termination. The Court found that the addition of the new charge by the Civil Service Commission violated principles of due process. Quoting from the Supreme Court’s decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), the Court observed that “when a public employer denies an employee of a property interest in continued employment, constitutional due process requires that the deprivation be preceded by (1) oral or written notice of the charges, (2) an explanation of the employer’s evidence, and (3) an opportunity for the employee to present his or her side of the story.” In the eyes of the Court, “because Parent was notified that he was investigated and that the termination was recommended pursuant only to the alleged violation of the employment policy, we may not uphold the Commission’s decision to affirm Parent’s termination on any other grounds. If the City wished to terminate Parent’s employment based upon the provisions of the state statute, due process required that he be notified of that charge. Having elected to base the City’s employment action solely upon the physical, mental, and emotional health policy, the City cannot use the statutory provisions as an alternative ground for termination.”

Parent v. City of Bellevue, 2009 WL 684712 (Neb. App. 2009).

This article appears in the May 2009 issue