City Provided Lieutenant With “All The Process He Was Due” In Demoting Him

On November 8, 2000, the Oklahoma County District Attorney’s Office filed an information charging Lieutenant Michael Nard with 20 counts of obtaining money by false pretenses. The charges alleged that Nard falsely represented on payroll records the number of hours he actually worked.

That same day, the Oklahoma City Police Department suspended Nard without pay. On November 14, 2000, Nard’s labor union, the Fraternal Order of Police (FOP), filed a grievance regarding Nard’s suspension without pay. On September 24, 2001, an arbitrator upheld the grievance and ordered the City to reinstate Nard to his position with back pay.

On October 11, 2001, the City charged Nard with violating ten Department policies and rules and informed Nard that he had a right to a pre-determination hearing before the Department Review Board. Before the hearing, the charges were amended, detailing 22 instances of alleged violations of the same ten Department policies and rules.
The FOP represented Nard at the hearing before the Board. At the conclusion of the hearing, the Board voted to sustain 11 of the 22 allegations that Nard had submitted false time cards, and determined that Nard’s conduct violated nine Department policies and rules. The Board recommended that the Police Chief give Nard a Class III reprimand and demote him from lieutenant to sergeant.

The Chief accepted the Board’s recommendation and imposed the demotion. The FOP did not contest the demotion through the collective bargaining agreement’s grievance procedure. Nard then filed a lawsuit in federal court, alleging that the procedures used by the Department violated his due process rights.

The federal Tenth Circuit Court of Appeals rejected Nard’s claims. The Court acknowledged that Nard had a property interest “in his rank” that demanded that due process be followed before he could be demoted. The Court found that the City “provided Nard with all of the procedure he was due under the Fourteenth Amendment prior to demoting him. It is undisputed that the Department provided Nard with a written notice and a revised written notice detailing the charges against him and informing him of his right to a hearing. The Department provided Nard with the initial notice five weeks, and the revised notice two weeks, prior to the November 21, 2001 hearing. Both notices set forth the conduct with which the Department was charging Nard and the policies and rules the conduct allegedly violated. The Department provided Nard with a pre-determination hearing, at which Nard had an opportunity to respond to the charges and evidence against him, ask questions of the Department’s witnesses, call his own witnesses, and present his own evidence. There is no evidence in the record that the Department Review Board was partial. The Department also informed Nard of his right to appeal any action taken against him through either the Oklahoma City personnel policy grievance procedure or the FOP collective bargaining agreement.”

The Court concluded that these procedures more than satisfied the City’s due process obligations.

Nard v. City of Oklahoma City, 2005 WL 2995597 (10th Cir. 2005).

This article appears in the December 2005 issue