Hurricane Katrina Excuses Need For Pre-Termination Hearings

Under Louisiana law, members of the New Orleans Police Department have “property rights” to their jobs. As such, they may not ordinarily be suspended, demoted, or terminated without a pre-disciplinary hearing. During and immediately after Hurricane Katrina swept through New Orleans on August 29, 2005, some police officers were absent from their posts. Nearly two months later, letters were mailed to this group of officers terminating them without any notice or opportunity to be heard. Some of the officers had actually contacted their supervisors in the days immediately following the hurricane, were advised of a 3-day suspension, returned to New Orleans and were in contact with their immediate supervisors regarding reporting to duty at the end of the suspension period.

The terminated officers challenged their firings in the Louisiana Court of Appeals, arguing that the failure on the part of the City to grant them pre-termination hearings required the reversal of their terminations. A heavily-divided court disagreed, and upheld the discharges of the officers.

The Court stated that “it is unnecessary for this Court to describe the emergency conditions existing in New Orleans during and after Hurricane Katrina. Thus, we note the obvious negative effect that an absence of discipline for these officers would have on those who remained at their posts under the most unusual and trying of circumstances. The public puts its trust in the Police Department as a guardian of its safety, and it is essential that the appointing authority be allowed to establish and enforce appropriate standards of conduct for its employees sworn to uphold that trust. Relying solely on the absence of a pre-termination hearing to overturn a discharge when truly extraordinary circumstances present themselves would set a dangerous precedent on future disciplinary actions of the New Orleans Police Department.”

Four judges dissented from the Court’s decision, arguing that “we cannot join in an opinion that ignores the prejudice created by denying an employee of his property right without the opportunity to first be heard and defend that right. The notion that due process was protected and no prejudice occurred when the employee was divested of his/her position first and allowed a post-termination hearing months later is fictional. Allowing post-terminations hearings with no limitation on delays effectively abolishes the employees’ constitutional right to due process. Due process is most vulnerable when it is most warranted.”

Reed v. Department of Police, 2007 WL 3015570 (La.App. 2007).

This article appears in the February 2008 issue