Civil Service Hearing Meets Due Process Requirements

Matthew Skogen was a police officer with the City of Overland Park, Kansas. On March 30, 2008, Skogen was involved in an off-duty confrontation with his brother that a citizen reported to the Department. After investigating the matter, the Department terminated Skogen, who appealed to the Overland Park Civil Service Commission. When the Commission upheld his termination, Skogen filed a lawsuit in federal court, alleging that the Commission’s procedures violated his rights to procedural due process.

The first issue for the Court was whether Skogen had any due process rights at all. Under Kansas law, public employment is presumptively “at-will.” However, the at-will status of an employee can be modified if there is any restriction on “the government employer’s removal power by requiring some type of ‘cause’ or ‘fault’ before taking any adverse action against the employee. If such a modification has occurred, then the employee does possess a protected property interest.”

The Court found such a modification in the City’s ordinances. A section of the City’s municipal code provides that “no police officer below the rank of Captain who has successfully completed the probationary period shall be suspended, demoted or terminated for disciplinary reasons, except for misconduct, insubordination, failure to perform his or her required duties or disobedience of his or her orders or material false statements, deception or fraud (practiced or attempted) in the hiring process.” The Court reasoned that “this ordinance clearly restricts the right of the City to terminate a police officer’s employment. The ordinance expressly states that no police officer (at least one below the rank of Captain who has successfully completed the probationary period) may be terminated except for one of the enumerated reasons. In other words, the police officer is assured continued employment absent cause for termination. Because this ordinance limits Defendant’s discretion to terminate a police officer’s employment except for cause, the Court holds it gives rise to a protected property interest.”

Skogen fared less well with his argument that the Civil Service Commission’s procedures were inadequate. Skogen argued that the Commission was not impartial because the Commission’s Rules and Regulations required that it apply an “arbitrary and capricious standard of review” and did not allow the Commission to substitute its independent judgment for that of the Police Department. Skogen contended that this “is the antithesis of a fair and impartial tribunal.”

The Court disagreed. First, the Court pointed out that Skogen received a good deal of pre-termination due process, including an internal affairs interview and the opportunity to make a presentation to the Police Chief. Second, the Court observed that “the Civil Service Commission conducted a full evidentiary hearing and undertook a complete de novo review of the facts. Based on that evidentiary hearing – which involved attorneys for both Skogen and the City – opening and closing arguments, and the testimony of five witnesses, the Commission made its own factual findings, without deferring to the Department’s decision to terminate Skogen.”

Most importantly, the Court found that Skogen had “engaged in unprofessional and improper conduct while off duty. The Commission expressly held that the conduct demonstrated by Skogen violated the Department’s rules and supports the actions taken by the City to terminate Skogen from the Overland Park Police Department. Thus, given that the Commission’s own, independent factual findings were fully consistent with and supported the Police Department’s findings, it appears highly unlikely that the Commission’s decision to uphold the termination would have been any different had the Commission not applied a deferential standard of review.”

Skogen v. City of Overland Park, 2010 WL 973375 (D. Kan. 2010).

This article appears in the June 2010 issue