Cities, towns, counties, and special districts have an important option to consider when determining how to carry out employee suspensions and discharges. They can choose to be at-will, and provide no due process, so that suspended or terminated employees have no legal entitlement to hearings on the matter. Or they can provide a “property right” in a job, and afford the employee a hearing prior to and after the suspension or termination.
Public sector employers may choose either approach, and both are valid. But since there are only two approaches to the issue, choose deliberately and set up proper procedures.
Typically, the employer’s stance on due process is stated in the handbook. It can be a straightforward statement that certain categories of employees receive due process, or the employer can be more subtle by issuing a policy stating that discharge requires just cause or that employees are entitled to progressive discipline. Some public-sector employers inadvertently create due process rights through their conduct. For example, a history of never discharging employees may give rise to a due process claim when the time finally comes to terminate a non-performing employee. Others create it through policies and procedures outside the handbook, such as a statement that employees are disciplined “for cause.”
If you believe you have unintentionally created a property right in a job and must follow due process, seek help from a qualified professional. MSEC can help, and a city or county attorney may be an excellent resource. We can also help you lay the groundwork to eliminate due process rights in the future.
If you provide due process, create a clear process for both the pre- and post-termination hearings. The pre-termination hearing is an informal meeting where the parties clarify the facts. If there is a misunderstanding of the facts, this is the employee’s opportunity to offer more information and perhaps avoid a discharge. The post-termination hearing involves a hearing officer who is either a high-level manager or a neutral party. The employee has a right to legal representation and the right to cross-examine the employer’s witnesses, and the employer may be represented as well. The hearing officer then makes findings of facts, using those as a basis for a final decision. If you need help, call MSEC. We can help walk through a process and the proper policies.