Failure To Give Officer Access To File And Full Rationale For Charges Violates Due Process

Tim Hrbek is a police officer with the City of Bellevue, Nebraska. In May 2001, the Department disciplined Hrbek as a result of a “romantic meeting” that Hrbek had with a dispatcher while Hrbek was on duty, causing an unnecessary delay in Hrbek’s response time to an emergency call. Up until that time, Hrbek’s service with the Department was exemplary.

In September 2002, the Department suspended Hrbek from duty as a result of an incident in which Hrbek discharged his weapon, wounding a suspect. The Department subsequently determined that Hrbek’s discharge of his firearm was wrongful and suspended Hrbek from duty for a few days. No criminal charges were filed against Hrbek. Hrbek received psychological counseling following this incident and underwent a fitness-for-duty evaluation conducted by Dr. Stephanie Peterson, who concluded that Hrbek was fit to return to work.

In November 2002, a citizen complained about Hrbek’s behavior in regard to Hrbek’s investigation into a hit-and-run accident. The Department determined that Hrbek acted in an unprofessional manner and ordered Hrbek to receive counseling. In January 2003, the Department disciplined Hrbek for using pepper spray in an unauthorized manner.

In February 2003, the Department took disciplinary action against Hrbek for two incidents, one of which involved a defensive tactics training session during which Hrbek arrived late, left early, and injured another officer to the point that that officer went to a hospital for treatment. In regard to the other February incident, Hrbek allegedly contacted one of his subordinates while the subordinate was on duty and had him bring food to Hrbek’s home.

Subsequently, the Police Chief wrote a memorandum to the acting city administrator, recommending that Hrbek be terminated. The Chief listed a number of alleged violations of certain rules, but did not identify any factual circumstances supporting the allegations of those rules violations.

On May 8, 2003, a pre-termination hearing was held before the city manager. At that hearing, Hrbek objected, stating that the Chief’s memorandum recommending the termination of Hrbek’s employment did not adequately advise Hrbek of the grounds for the termination. The city manager agreed and rescheduled the hearing for May 20.

In a memorandum dated May 9, 2003, the Department detailed the incidents it was relying on in recommending Hrbek’s termination of employment. Specifically, the Department referenced Hrbek’s romantic meeting with a dispatcher while at work in May 2001; the September 2002 incident in which Hrbek shot and wounded a suspect; the November 2002 citizen complaint against Hrbek regarding Hrbek’s investigation of a hit-and-run accident; Hrbek’s unauthorized use of pepper spray in January 2003; the February 2003 training session during which Hrbek arrived late, left early, and wounded a fellow officer; and another February 2003 incident in which Hrbek had an on-duty officer bring Hrbek food to his house.

On May 20, 2003, the actual pre-termination hearing was held, and at that time, Hrbek responded to each of the specific incidents set out in the May 9 memorandum. The city manager subsequently fired Hrbek, who appealed to the local Civil Service Commission. Before his hearing, Hrbek received a packet of information from the secretary of the Commission, which included all of the documents in the Department’s investigative file concerning Hrbek. The record showed that the Chief had forwarded this file to the city manager on April 28.

When his appeal was unsuccessful, Hrbek challenged his termination in court. The Nebraska Court of Appeals reversed the termination, finding that the failure to provide Hrbek with the investigatory materials before his termination violated his due process rights.

The Court was clearly troubled by the procedures used by the City, holding: “The record also shows that the investigative file was available to the city manager before she made her decision to adopt the Department’s recommendation that Hrbek’s employment be terminated. Even with this information, the city manager failed to set out specific findings of fact in her order and did not give any reasons for her decision. Later, at Hrbek’s appeal before the Commission, the city manager testified that she did review the entire investigative file but that she relied on the rest of the information in that file to a lesser degree. Clearly, her statement that she possibly relied on information which had not been provided to Hrbek prior to his pre-termination hearing makes it impossible for us to conclude that Hrbek’s due process rights were not violated.”

The City argued that since Hrbek did receive the materials after his termination and before his civil service hearing, Hrbek was not prejudiced by any due process violation. The Court disagreed, noting that “the law states otherwise. Procedurally adequate post-termination of employment proceedings do not cure pre-termination due process violations.”

Hrbek v. City of Bellevue Civil Service Commission, 2005 WL 1949498 (Neb. App. 2005).

This article appears in the October 2005 issue