Six-Year Delay In Resolving Disciplinary Charges Does Not Violate Due Process

Russell Cope worked as a Tennessee Highway Patrol trooper for 35 years when he was terminated in 2006. Cope’s termination was based upon his handling of a traffic stop on May 30, 2000.

Cope challenged his termination through the court system arguing, among other things, that the six-year delay between the incident and the bringing of charges against him violated his due process rights. The Tennessee Court of Appeals rejected Cope’s arguments.

The Court found that “there are no statutes or cases imposing a statute of limitations for taking disciplinary action against a Civil Service employee in Tennessee. Moreover, neither the Department of Personnel rules nor the Department of Safety’s disciplinary regulations require that disciplinary action be taken within a specified time. The Department’s rules state merely that when disciplinary action is required, the supervisor should administer disciplinary action promptly.”

The Court acknowledged that “generally, delay between an incident and adjudication of a claim or charge based on the incident can increase the risk of an erroneous decision because the passage of time can seriously impair the quality and quantity of evidence whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise.” However, the Court found that in Cope’s case, the fact that the incident was preserved on videotape “somewhat diminishes the typical problems associated with the passage of time.”

Cope argued that there were two witnesses to the incident who were no longer available, and that the passage of time had a real and prejudicial impact on it. The Court dismissed the argument, finding that “the Department, not these two citizens, brought the current charges against Cope who fully participated in the termination process and had every opportunity to challenge the evidence against him, including cross examining several of his superiors. The Department’s delay in taking disciplinary action against Cope five-and-a-half years after the underlying incident did not deprive him of due process.”

Cope v. Tennessee Civil Service Commission, 2009 WL 1635140 (Tenn. App. 2009).

NOTE: The result in Cope’s case might well have been different had he been covered by a collective bargaining agreement. Most arbitrators find that the requirements of “just cause” mandate that an employer impose disciplinary action in a timely fashion. There are several reported arbitration decisions finding that a delay between an incident and the imposition of discipline of less than a year can potentially violate the “industrial due process” provisions of a “just cause” clause in a collective bargaining agreement.

This article appears in the October 2009 issue