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No Due Process Right For Probationary Employees To Remain On Layoff List

Good news is not on the way when a court starts its opinion in your case by writing: “A chance at a job is not a right to it. When the government has broad discretion to take a benefit away from its employees, that benefit is not a constitutionally protected property interest.” The case began when corrections officers Claudio Tundo and Ruben Gilgorri were laid off by Passaic County,…

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Police Chief May Have Due Process Rights

In 2013, the Village of University Park, Illinois hired Eddie Bradley as its police chief. In the occasionally tumultuous world of small-town politics, this didn’t last long, and soon after a municipal election in 2015, the mayor and Village Board placed Bradley on administrative leave. The Village fired him 13 days later, without giving him notice of good cause or an opportunity to be heard. The letter from the…

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The Lesser The Discipline, The Less ‘Process That Is Due’

Like most Supreme Court opinions, the procedural due process decision in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) is painted with a very broad brush. This has left it to the lower courts to more precisely define the amount of ‘process that is due’ under Loudermill. As illustrated by a Pennsylvania case, one basic principle that has developed over the years is that there is a…

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Defect In Firefighter’s Pre-Disciplinary Letter Violates Due Process

On November 1, 2013, Paul Moss was at home and off duty from his employment with the Shelby County Fire Department in Tennessee. His wife was attending a political rally at an interstate overpass on Quince Road in Memphis. The rally consisted of, among other things, participants holding a banner calling for the impeachment of President Obama. When the rally engendered some negative feedback from passing motorists, participants began…

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What Due Process Rights Are Chiefs Owed, And When?

The federal Ninth Circuit Court of Appeals, not always known for the brevity of its decisions, has recently used a case involving the termination of Spokane Police Chief Frank Straub as the vehicle to succinctly describe whether chiefs are entitled to due process upon their termination, and if so, when. Due process rights come in two varieties, depending upon whether the employee has a “property right” to the job….

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City Required To Bargain Over Procedures Used For Due Process Hearing

The City of Long Beach, New York and Local 287 of the International Association of Firefighters (IAFF) are parties to a collective bargaining agreement. In November 2014, Local 287 member Jay Gusler reported that he was injured in the line of duty, and began what turned out to be a long-term absence from work. A year later, the City informed Gusler that the City “is evaluating whether to exercise…

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No Due Process Requirement For Reprimands

Deborah Upchurch is a supervisor with the City of Orange Township, New Jersey. After an internal affairs investigation, the City issued Upchurch a written reprimand for insubordination. Upchurch challenged the reprimand, alleging it was issued without due process. An appeals court in New Jersey dismissed Upchurch’s claims. The Court began by citing the Supreme Court’s decision in Cleveland Bd. Of Education v. Loudermill, 470 U.S. 532 (1985) for the…

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Firefighters Lose Due Process, Bill Of Rights Claims

Patrick Leonard and Steven Barrett are Los Angeles firefighters. After they failed a psychological exam and were transferred out of the Arson Counter Terrorism Section, they sued the City claiming violations of due process and the California Peace Officer and Firefighter Procedural Bill of Rights Acts. The federal Ninth Circuit Court of Appeals rejected the firefighters’ claims. With respect to the argument that their transfer violated their due process…

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Officer Received Adequate Due Process Before Being Placed On Brady-Type List

John Gantert began working as a police officer in Rochester, New Hampshire in March 2005. For six years he was viewed as a “good and productive officer” and had no disciplinary actions reflected in his personnel file. Upon beginning his shift on March 24, 2011, Gantert was instructed to assist another officer in booking an individual arrested for domestic violence. As part of the Department’s standard operating procedure in…

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No Due Process Rights For At-Will Police Officers

Tracey L. Johnson and David James, Jr. were police officers for the City of Shelby, Mississippi. On September 1, 2009, the City’s Board of Aldermen voted to terminate Johnson and James, allegedly based on “citizen complaints about the officers profiling, targeting, and harassing people.” Johnson and James claim that they were terminated because they refused to ignore the alleged illegal activities of City Alderman Billings. Employees of the City…

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Fire Chief’s Discipline Violates Due Process

Jesus “Jesse” Alba became chief of the City of Waukesha, Wisconsin Fire Department in May 2013. Two months later, the City of Waukesha mayor filed charges alleging that Alba had violated Department rules and the City’s anti-harassment policy. The mayor alleged that Alba had not disclosed during his interview for the position that he and a Department employee under his command had an affair in 2012 or that, when…

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Officer Wins Nearly $1 Million On Due Process Claim

In 2012, the City of McPherson, Kansas terminated Police Officer Matthew Michaels. The charges against Michaels were: “Argumentative with superiors, insubordination, conduct unbecoming an officer, sleeping on duty, numerous other circumstances and situations where he was no longer viable to be a police officer.” The City failed to grant Michaels a due process hearing before or after terminating him. The City also documented the reasons for Michaels’s termination in…

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Relying On Uncharged Offenses Violates Due Process

Since many of the public safety employees in Mississippi have “at-will” status with no job protections, it is a rare event for a Mississippi court to address due process issues. But that rare event just occurred in the case of Trooper First Class Sammy Ray of the Mississippi Highway Safety Patrol. The charges against Ray were limited to his encounters with four specific motorists: Kacie Patterson, Joshua Ulmer, William…

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Due Process Requires Pre-Discipline Hearing Even If Appeal Rights Exist

A common misperception is that if an employee has access to a meaningful post-discipline appeal, the employer need not grant the employee a pre-disciplinary hearing. As the Village of Minerva Park, Ohio recently discovered in federal court litigation, the Supreme Court’s decision in Loudermill v. Cleveland Board of Education requires pre-disciplinary hearings in all cases where an employee has a property right to the job, even if a post-disciplinary…

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Conviction Of Misdemeanor Crime Of Domestic Violence Extinguishes Due Process Rights

William Arganda was employed as a peace officer by the City of Westminster, California. Following an internal investigation, Arganda was served with a Notice of Intent to Terminate on August 11, 2009, for multiple violations of Department policy involving unauthorized use of the law enforcement data system for personal business. After a pre-disciplinary hearing, the City terminated Arganda. Arganda made a timely request for a post-disciplinary appeal hearing, and…

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No Due Process Rights When Entire Department Eliminated

A group of officers with the Los Angeles County Office of Public Safety (OPS) sued the County, claiming their due process rights were violated when the County consolidated the operations of the Office into the Sheriff’s Department. The officers contended, among other things, that they were automatically entitled to sworn positions in the Sheriff’s Department. The federal Ninth Circuit Court of Appeals disagreed with the officers and dismissed their…

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Due Process Hearing Need Not Follow Evidentiary Rules

Captain Calvin Bankhead is a 25-year veteran of the Gary, Indiana Fire Department. In November 2001, Bankhead was selected for random drug testing. When Bankhead’s test results showed that he had consumed marijuana, the City’s Civil Service Commission demoted him, suspended him for nine months, and subjected him to additional random tests. Bankhead challenged the Commission’s decision, arguing that the records of his drug test should not have been…

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Placement On Unpaid Leave Of Absence Requires Due Process

Antonio Giusto was a police officer with the City of San Mateo, California. In January 2003, Giusto filed a workers’ compensation claim on the basis of stress and depression following a non-disciplinary counseling session with his supervisor. As a result, the City placed Giusto on paid administrative leave pending a fitness-for-duty evaluation. Giusto was examined by a psychiatrist, Norman Reynolds, who reported that Giusto was not fit for duty….

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In Facebook Case, Due Process Violation When Employer Fails To Comply With Own Procedures

Damond Harris is a police officer with the New Orleans Police Department. In January 2010, Harris engaged in a Facebook conversation with another officer, William Torres. Torres started the conversation by posting: “Thanks for the shots last night. Btw, You shouldn’t of cut your hair. Bowl haircuts are for boys. Oh, tell your ex g/f better not tell me s–––, because we went out after your break up. A.M….

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Disability Termination Requires Due Process

John Turner was employed by the Arizona Department of Public Safety as a sworn, full-time highway patrol officer. In October 2008, Turner’s personal psychologist contacted the Department and advised that Turner be temporarily relieved from duty so that he could be treated for psychosis and paranoid schizophrenia, which was causing him to see demons in traffic violators. The Department promptly relieved Turner from duty and placed him on paid…

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‘Live Burn’ Training Exercise Resulting In Firefighter’s Death Does Not Violate Due Process

On February 9, 2007, Racheal Wilson, a new recruit with the Baltimore City Fire Department, participated in a live burn training exercise staged at a vacant three-story building in Baltimore. The live burn exercise was required as part of the training program for aspiring Baltimore City firefighters. To stage the building for the exercise, officials of the Fire Department tore down wall-boards and ceilings to create debris and stuffed…

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Mass Demotion of Fire Officers Does Not Violate Due Process

In the summer of 2010, Lawrence Township, Indiana was in serious discussions with the City of Indianapolis regarding the Lawrence Township Fire Department merging with the Indianapolis Fire Department. Before any merger could take place, however, the Township had to make certain adjustments to the ranks of its officers. Indianapolis was willing to accept only 15 officers (five captains and ten lieutenants), and would not accept any battalion chiefs….

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Bias Of One Panel Member Taints Entire Decision-Making Process

Liam Sullivan was the Chief of the Town of Elsmere, Massachusetts Police Department. A panel consisting of the Town Council and the Mayor held a public hearing to decide on Sullivan’s employment future. Sullivan made a motion to disqualify one Council member – by the name of Jaremchuk – on the ground that a previous conflict between him and Sullivan tainted his impartiality. The Mayor denied the motion, the…

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Volunteer Firefighter Has No Property Right To Job

Matthew Preston was a volunteer firefighter with the City of Pleasant Hill, Iowa. After questions about Preston’s medical certification were raised, the City first suspended Preston, and then placed him on two years of probation and imposed several performance requirements. Preston thought the requirements were unacceptable and sued the City, claiming his due process rights were violated. The federal Eighth Circuit Court of Appeals dismissed Preston’s lawsuit. Preston’s argument…

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Due Process Requires Hearing Before Suspension Without Pay

Michael Schmidt was hired in November 2002 by the Department of General Services of the Commonwealth of Pennsylvania to serve as a patrol officer with the Capitol Police. The Department investigated Schmidt on charges that he failed to report to his assigned post, had disobeyed work orders, and had shown disrespect and insubordination to his supervisor. Within three days of the precipitating incident, the Department suspended Schmidt without pay….

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