Observing Due Process: In Hell There Will be Nothing but Law … 2017 Long Beach/2017 … · ·...

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fisherphillips.com vonbriesen.com/government

Observing Due Process:

In Hell There Will be Nothing

but Law and Due Process Will

be Meticulously Observed

Presented by: Todd A. Lyon Kyle J. Gulya Fisher Phillips von Briesen & Roper, s.c. [email protected] [email protected] (503) 205-8095 (608) 316-3177


Today’s Learning Objectives

• Understanding the difference between industrial and

procedural (constitutional) due process

• Understanding the when, what, and how of an employee’s

eligibility for due process and the employer’s legal obligations

• Avoiding common, unforeseen, and costly pitfalls in applying

due process, including during investigations, ineffective due

process notices, and non-disciplinary separations.


Outline of Today’s Session

Procedural Due Process:

• Fourteenth Amendment: The Basis for Procedural Due Process

• What is the “Liberty Interest” in Public Employees’ Jobs?

• What is the “Property Interest” in Public Employees’ Jobs?

• What is a Deprivation of the Property Interest?

• What are the Basic Requirements of Procedural Due Process?

mailto:[email protected]


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Outline of Today’s Session

• Timely employer action

• Fair investigation

• Notice of the charges and a

meaningful opportunity to

respond

• Double Jeopardy

• Bias

• Weingarten Rights and

Garrity Warnings

• What process is required for a

pre-deprivation hearing with

and without a post-deprivation

hearing

• Other significant pitfalls

Due Process Considerations in Investigations and Hearings:


PROCEDURAL DUE PROCESS


Fourteenth Amendment: The Basis for Procedural Due Process

• Incorporated protections against deprivation of life, liberty, and property with the states

• “Section 1. All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

No State shall make or enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws.”

• What does that mean?

State and local government actors, not just federal government actors, cannot deprive people of life, liberty, or property without due process of law.

• From this requirement stems due process rights for an employee’s property and liberty

interests in their public employment.

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Fourteenth Amendment: The Basis for Procedural Due Process

What Does Due Process Entail?

• Public employees are entitled to:

• “Due process”

• Before the deprivation

• Of their property OR liberty interest in their jobs


“Property Interest” in Public Employees’ Jobs

• Public employees’ property right does not arise directly from the U.S.

Constitution, but instead state law or other external sources

• Employees do not have presumptive due process rights. There must be

statutes, civil service laws and systems, contract rights, or established

rules and understandings that effectively create a de facto tenure

system for the employee to enjoy these rights

• The question is whether those statutes, contracts, rules, or

understandings create a legitimate expectation of continued

employment.

• Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 (1985) - seminal

case recognizing property interest in civil service positions.


What is a Deprivation of the Property Interest?

• A deprivation of a public employee’s property right includes:

Termination or

Any other loss of an economic nature such as demotion, unpaid suspension,

reduction in pay

• At-will employment?

• Removal from an assignment such as SWAT team?

• Administrative leave or desk duty assignment?

• Use of an internal grievance procedure?

• Temporary reassignment?

• Nondisciplinary separation?

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Basic Requirements of Procedural Due Process

• Notice given of the charges against the employee;

• A summary of the evidence; and

• An opportunity to respond to the charges.

Cleveland Bd. of Education v. Loudermill, 470 U.S. 532 (1985):

• Supreme Court upheld public employee’s pre-termination right to know

the charges against him and the right to be heard.

• Supreme Court also recognized the employee’s right to “post-

termination administrative procedures,” which typically involve a full

evidentiary hearing.



Notice

• Notice of the specific charges in sufficient detail to allow the

employee prepare a defense;

• Notice of the evidence to be used, including the names of

the adverse witnesses; and

• The time and place for an opportunity to be heard before a

final decision is rendered.


Right to Be Heard: Flexible—it may include some or all of the

following:

• The right to see the evidence before the hearing;

• An impartial decision maker;

• The right to attend the hearing;

• The opportunity to have legal counsel;

• A reasonable time to prepare;

• The opportunity to present her own favorable witness testimony and

evidence; and

• The right to cross-examine witnesses.


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The Pre-Disciplinary Hearing

• The main purposes of a pre-disciplinary hearing:

1. “An initial check against mistaken decisions”

2. “Essentially a determination of whether there are reasonable grounds to

believe that the charges against the employee are true and support the

proposed action.”

• In the absence of a post-deprivation hearing, an employee may be

entitled to greater due process protections (i.e., a full hearing).

• If an adequate post-deprivation hearing exists, then minimal due

process applies such as notice, a summary of evidence, an impartial

decision maker, and an opportunity to be heard.



Pre- and Post-Disciplinary Hearings

• Due process is a “flexible concept” that balances the public employer’s legitimate

business interests against the employee's property interests. Mathews v. Eldridge, 424

U.S. 319 (1976).

• As a practical matter, “the balance of interests rarely dictates that a full evidentiary

hearing is constitutionally required at [the pre-deprivation] point; . . . when an adequate

pre-deprivation or prompt post-deprivation hearing is used.” Roughly, the more complete

the process is at the later stage, the more informal the earlier stage of the process can

be. D’Acquisto v. Washington, 640 F. Supp. 594, 648 (N.D. Ill. 1986).

• Therefore, a combination of pre- and post-disciplinary hearings may be used, so long as

the employee is, in total, afforded all required protections.

• The ideal model is a full evidentiary hearing before the deprivation of a property interest.



Cross-Examination at the Pre-Deprivation Hearing

• There is not an automatic right to cross-examine witnesses at

the pre-disciplinary hearing.

• 7th Cir.: when there is an opportunity for a full post-termination

hearing, due process does not require an employer to provide full

“trial-type rights” such as the right to present or cross-examine

witnesses at the pre-termination hearing. Staples v. City of

Milwaukee, 142 F.3d 383, 387 (7th Cir.1998).

• 9th Cir.: There is no requirement that an employee be afforded an

opportunity to confront opposing witnesses and cross-examine them

under oath at the pre-discipline hearing. Cross v. Multnomah Cty.

Sheriff's Office, 118 F. App'x 303, 304 (9th Cir. 2005)

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Exceptions to the Required Pre-Deprivation Hearing: Felony Charges

• Where a State must act quickly, or where it would be impractical to provide pre-

deprivation process, post-deprivation process satisfies the requirements of the

Due Process Clause

• The State has a significant interest in immediately suspending employee

without pay when felony charges are filed against them. Gilbert v. Homar, 520

U.S. 924, 932 (1997) (specifically noted that the employee as a police officer

occupied a position of great public trust and high public visibility)

• But See McDonald v. Dayton, 2001-Ohio-1825, ¶ 47 (Police officer terminated

for racially motivated attacks and later charged with a misdemeanor entitled to

pre-deprivation hearing because complete loss of pay was substantial and

procedure to bring misdemeanor less strenuous than felony)


The Post-Disciplinary Hearing

“Importantly, it is the opportunity for a post-deprivation hearing before a

neutral decisionmaker that is required for due process.”

• Generally, must involve a “thorough examination” of all issues raised at

the pre-deprivation hearing. Vanelli v. Reynolds School Dist., 667 F.2d

773, 780 (9th Cir. 1982).

• Level of procedure required at post-disciplinary hearing depends, in

part, on the amount of process afforded at the pre-deprivation hearing.

• These hearings may include the full plate of due process if the hearing

is de novo.



What is the “Liberty Interest” in the Public Employee’s Job?

• A public employee’s “liberty” interest is usually the

employee’s right to their good name and reputation.

• If there has been publication of arguably adverse and

stigmatizing information about the employee, the employee

is entitled to a due process “name clearing” hearing, which

provides the opportunity for the employee to clear their

name on the record, but not the right to get their job back.

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• What is a stigmatizing charge?

• Termination of employment alone is not a deprivation of liberty in spite of

possible adverse effects on future employment opportunities.

• A stigmatizing charge giving rise to “a ‘badge of infamy,’ public scorn, or

the like.” Examples: charges of theft, dishonesty, immorality, drug use or

alcoholism, disloyalty, mental disorder, criminal acts, prone to suicide

prone, lack of intellectual ability, abusers, sexual harassment, and racism.

• The stigma of one’s employability must take place at the time of

employment deprivation—statements made months before or after

termination of employment do not infringe liberty interests.



• Who can cause a deprivation of a liberty interest?

• There is no deprivation of liberty when the reasons for termination are not

publicly disclosed at the instigation of the employer regardless of the truth,

falsity, or potential reputational impact or stigmatizing effect of the reasons

for terminating the employment of an individual.

• There is no deprivation of liberty when the publicity of stigmatizing charges

is by the employee or by an outside party such as a prosecuting attorney.

• There may be a deprivation of liberty by the disclosure of stigmatizing

information in a personnel file and internal affairs report disclosed pursuant

to a public records request.



• What procedures must be followed?

• Notice of a meeting before a governmental body for the opportunity to be heard

• An opportunity to be heard, including calling witnesses and presenting evidence

• Liberty interest procedures need not be formal and need not consist of a

traditional hearing.

• May be held in conjunction with a property interest hearing if the employee is

so entitled

• A chance to review the charges and supporting evidence and to respond in

writing has been held to satisfy due process.

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Deprivation of Property or Liberty Interests: Example

• Example 1:

• A city needs to conduct reduction in force through layoffs due

to funding cutbacks. Pursuant to the city’s CBA, the city lays

off a dozen employees using the seniority list.

• Must the city provide procedural due process hearings for the laid off

employees?

• Must the city provide liberty interest hearings if the reasons for layoff

include performance reasons?


Deprivation of Property and Liberty Interests: Example

• Example 1:

• Yes as to the property interest hearing- the City must provide

procedural due process to these employees because the City

is depriving them of their property interest in their jobs.

• No as to the liberty interest hearing – the City does not need

to provide a liberty interest name clearing hearing if the basis

for lay off includes performance, and the reasons demonstrate

the employee is employable in other capacities


Nondisciplinary Separations: Does a Due Process Right Exist?

• Examples of nondisciplinary separations: medical reasons,

inability to lawfully perform a job duty (loss of license, firearm

disqualification under the Lautenberg Amendment), disqualifying

criminal convictions.

• Courts require some minimal form of due process before

depriving the employee of the protectable property interest.

• For medical situations, this can be an added step following

completion of the cooperative interactive process under the ADA.

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DUE PROCESS DURING THE INVESTIGATION


The Interplay of Constitutional Due Process and Industrial Due Process During the Investigation

Whereas substantive and procedural constitutional due

process rights for public employees derive from the

Constitution, industrial due process are those inherent

rights requiring fairness in investigation and discipline.

These rights may be intertwined based on statutes

establishing specific rights similar to those expectations

of fair play established by Arbitrators.


Industrial Due Process during the Investigation

• Labor arbitrators recognize at least five elements of industrial due process:

• Notice to the accused of the specific accusations;

• Opportunity for the accused to respond to the accusations before determination of

discipline;

• Fair investigation;

• Timely employer action; and

• No double jeopardy.

• Arbitrator selection matters. As Arbitrators have different perspectives of

what just cause means and how it is applied, Arbitrators also vary in their

application of standards of industrial due process.

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Timely Employer Action

• After becoming aware of alleged misconduct, an employer

must investigate and take action within a reasonable time.

• Delay in notifying the employee of charges may violate due

process, as such delay hinders the accused’s ability to mount

a defense.

• Likewise, delaying imposing discipline may be a due process

violation.



• Delay is disfavored for a number of reasons:

Witnesses’ recollections fade

Witnesses may depart

Risk of evidence spoliation

Records may be discarded

Additional work performed by accused counters inference

that accused is an unacceptable employee

Mead Corp., 113 LA 1169, 1182-84 (Franckiewicz, 2000)



• Whether the employer action is timely depends upon the facts of each case

and a review of any relevant contract language and employer policies.

If the labor agreement or policies contain time limits for imposing discipline, the

failure to comply can result in the arbitrator sustaining the grievance or issuing

an award with a reduced penalty.

• If the employer provides an acceptable reason for a delay, however,

arbitrators may excuse tardy imposition of discipline.

The most common reason for delay is the need to investigate

Other common issues: employee leave of absence, pending criminal

investigation or criminal charges involving a highly sensitive crime.

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Due Process during the Investigation: What is a Fair Investigation?

• A “fair” investigation must be both

• Thorough

• Unbiased


Fair Investigation

A “Thorough” Investigation:

• Must include interviews of the accuser, the accused, and

particularly those who witnessed the alleged conduct.

• Some arbitrators are reluctant to uphold discipline if first-

hand witnesses are not interviewed. See, e.g., Milbank

Mfg. Co., 112 LA 464 (Crider, 1999); ESAB Welding &

Cutting Products, 115 LA 79 (Wolkinson, 2000).

• Must include gathering and preserving relevant

documentary evidence.


Fair Investigation

An “Unbiased” Investigation:

• An investigation which is simply “going through the

motions” to justify the end result does not pass muster

under due process. California Sportservice, 123 LA 1228,

1235 (Calhoun, 2007).

• Instead, a fair investigation requires the employer to

evaluate the evidence for content, consistency, and

credibility. Lockheed Martin, 123 LA 244, 250-251 (Riker,

2006).

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Fair Investigation

Evidence of bias includes:

• asking witnesses leading questions

• suggesting disapproval of the accused

• placing pressure on witnesses to give statements

• misleading witnesses as to the purpose of the investigation

• inconsistent application of employer’s policies

• Identity and motivations of the investigator

• Bad faith (witness tampering, evidence tampering)


Due Process during the Investigation: Weingarten Rights

• “Weingarten Rights” refers to the rights set forth in NLRB v.

J. Weingarten, 420 U.S. 251 (1975).

Under Weingarten, a union employee has the right to

request union representation in an investigatory

interview which the employee has reason to believe

may lead to discipline.

Many states whose public sector employers are not

subject to the NLRA have developed their own similar

requirements with special nuances.



• Weingarten only applies when an employee requests a

representative.

• Weingarten only applies where the employee reasonably believes

the investigation will result in disciplinary action.

• The scope of when Weingarten rights apply has vacillated over the

years. For example, in 2014, the NLRB in Ralph’s Grocery Co.

found an employee may request union representation when the

employee is subject to a reasonable suspicion drug/alcohol test

even though the employee was not questioned by the employer.

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• Weingarten does not apply when the employee is:

• asked to complete an accident report;

• presented with disciplinary charges;

• presented with a written warning;

• asked to attend a layoff meeting;

• asked to accept work assignments; or

• requested to attend any other non-investigatory meeting.



• Be aware of the traps:

• What is the true role of the employee’s representative?

• What can the representative do and what can they not do, and

why does it matter?

• Request caucus

• Ask questions

• Advise the employee

• Answer for the employee – No

• Compel the employer to answer questions - No


Due Process during the Investigation: Garrity Warnings

• Just like a private sector employer, a public sector employer

has the right to compel an employee to answer questions

related to the employee’s job responsibilities and the

employee’s fitness for duty. But the Constitution still applies to

the public sector employer . . . .

• The Garrity warning (in short): “You are ordered to truthfully

and completely answer questions posed to you during the

internal investigation. Nothing you say, nor the fruits thereof,

may be used against you in any later criminal proceedings.”

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• During an investigation, when an individual is given a choice between

incriminating himself or losing his job, the individual’s statements are

not voluntary, but coerced, and the Fifth Amendment bars the use of

the individual’s statements in a subsequent criminal proceeding.

Garrity v. New Jersey, 385 U.S. 493 (1967); Spevack v. Klein, 385

U.S. 511 (1967).

• Supreme Court expands on Garrity to require reinstatement of

employees who refused to answer questions without proper warning.

Uniformed Sanitation Men Assn. v. Commissioner of Sanitation, 392

U.S. 280 (1968); Gardner v. Broderick, 392 U.S. 273 (1968).



• When does Garrity apply and when should it be given?

Timing of giving the Garrity warning matters, because poor

timing can fully compromise a criminal investigation and

prosecution!

• What questions can the employer compel the employee to

answer during the interview?

• Can the employee refuse to come to the meeting? Probably

not.



• What if the employer shares Garrity protected information with

law enforcement?

• Can the employer draw negative inferences from the

Employee’s refusal to answer compelled questions?

• With Probative Evidence: The employer may draw adverse

inferences from the individual’s refusal to answer questions when

probative evidence is offered against the individual.

• Without Probative Evidence: an employer’s “direct inference of guilt

from silence is forbidden.”

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• Without a Garrity warning, can the employee lie?

• Garrity does not provide immunity for false statements when the

statements, if true, would have been entitled to immunity. U.S.

v. Devitt, 499 F.2d at 142 (7th Cir. 1994); Herek v. Police & Fire

Comm’n, 226 Wis. 2d 504 (Ct. App. 1999) (rejecting “a bright-

line rule [that] suggests that any statement made, regardless of

its truthfulness, ought to be suppressed if the maker of the

statement is not given Garrity protection”).

• Giving a false statement can be a separate crime (perjury) for

which Garrity does not preclude prosecution.



• What if the employee does not receive a Garrity Warning? Franklin v. City of

Evanston, 384 F.3d 838 (7th Cir. 2004).

• The City questioned an employee about his marijuana possession arrest without warning

him of his Garrity rights. The employer relied on its policy that Garrity warnings would

not be given unless the employer explicitly required an individual to answer questions

under the pain of losing his employment. The individual refused to respond to questions

regarding his criminal conduct and the employer terminated his employment.

• The Court found the employer’s policy did not provide the employee an opportunity to tell

his story without penalty before termination without fear of impairing his criminal defense

and therefore could constitute a due process violation.

• What is a fundamentally coercive investigative process? Oddsen v. Board of

Fire & Police Commissioners, 108 Wis.2d 143, 321 N.W.2d 161 (1982).


Fair Investigations: Examples

Example 1:

• During an investigation that led to a police officer's

discharge, no notes were taken during a pre-termination

hearing, some of the officer's statements were disregarded

as inconsistent with the findings of the investigation, and

the termination notice was issued the day after the hearing.

• Is this a fair investigation?

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Example 1 :

• No. The arbitrator held that the investigation leading to

discharge was not fair or objective; the arbitrator found

that there had not been a “sincere effort to discover

whether [the Grievant] violated the policies in question.”

City of Raymond, 121 LA 1168, 1171 (Romeo, 2005).



Example 2 :

• Consistent with a custom whereby employees brought in pastries and

other snacks to share among themselves, a loaf of banana bread

appeared one day in the unloader shack. After eating some of the bread,

two employees experienced “strange sensations” and reported the

matter to the company the next day. A check of some crumbs left in the

shack revealed that the bread contained marijuana. Responsibility for the

bread was subsequently laid at the door of a third employee, the

grievant, on the basis of the following evidence:



Example 2 (cont’d):

• One of the employees who ate the bread stated that several employees (whose names he did not recall) told him that the bread had been brought in by the grievant.

• The second complainant remembered that the grievant invited him to have a piece of the bread

• According to the employer, the grievant, when confronted, did not deny bringing in the bread but only made some comments about possible trouble with the police. At the hearing, however, the grievant claimed that he said he had nothing to do with the banana bread.

• Did the employer's investigation produce convincing evidence of the grievant's guilt?

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Example 2:

• No. The information that he had brought in the banana bread

was only hearsay, and that he had invited an employee to

have a piece established only that he knew the bread was in

the shack, not that he necessarily had put it there. As for the

implied “confession by silence” he gave when questioned, the

grievant later repudiated it. Hilo Coast Processing Co., 77-2

ARB ¶8453 (Tsukiyama, 1977).



Example 3:

• When an employee refused an assignment to work in the wood shop, his

foreman fired him without even asking him the reason for his refusal. The

vice president for personnel testified at the hearing that he “tried more or

less to investigate actually what happened,” and that he pulled the

employee's medical record when the employee claimed that he had

refused the job because he was afraid that dust and fumes in the wood

shop would aggravate his bronchial condition. Finding no mention of a

bronchial condition, the vice president approved of the termination.

• Was the investigation sufficient to uphold the termination?



Example 3:

• No. The vice president’s follow-up to the foreman's nonexistent investigation

was halfhearted at best. He did not talk to the employee himself to try to

discover the discrepancy between the employee's explanation and the

medical record, although the fact that the employee had always been a

cooperative employee who had never before challenged a work assignment

should have told him that a thorough inquiry was in order. Nor did he ask

the employee for a doctor's verification that he was ill, although he

conceded it was company policy to do so. The foreman's initial decision was

essentially rubber-stamped, and as a result the arbitrator returned the

employee to work. Artco-Bell Corp., 61 LA 773 (Springfield, 1973).

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Due Process during the Investigation: Conducting a Fair Investigation

• Best practice is to treat the accused as you would want to be

treated.

• Best practice is to afford breaks and the opportunity for the

accused to seek private caucus with a representative.

• Best practice is to allow the representative to provide

meaningful representation.

• Best practice is to have a management official other than the

supervisor who makes the final decision to impose discipline

conduct the investigation.


Due Process during the Investigation: What is Acceptable Notice of the Charges?

Notice requires two elements:

1. notice of misconduct

2. notice of penalty



• Notice of Misconduct: should describe the type, scope, and

nature of charges, as well as facts sufficient to support the

reasons for discipline

• The mere listing of rules without giving the particulars of the infraction

is not sufficient notice.

• If new accusations emerge during the course of the investigation, due

process requires notice of the new charges.

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• Notice of the Penalty: Due process requires prior notice that the infraction

could lead to discipline.

• Are employer policies enough notice? Sometimes, no.

An employer’s harassment policy failed to provide adequate notice that an

employee could be terminated for mere possession of offensive material stored in

the employee’s desk. Xcel Energy Co., 123 LA 596, 603 (Daly, 2007)

Termination for absenteeism and bad attitude overturned on the basis of due

process violations because no precise standards existed to measure excessive

absenteeism and the written notice required by the contract was not issued.

Calumet & Hecla, Inc., Calumet Div., 40 LA 660 (Howlett, 1963).



• When is specific prior notice not required? Any infractions which

is sufficiently serious, by itself, to warrant immediate discharge.

• For example:

Theft,

Striking a supervisor,

Gross insubordination, and

Intoxication in a hazardous work environment.



• Best method of notice of penalties: written rules which are

distributed to employees which state the penalties for rule violations,

training, signed acknowledgement forms, and refreshers.

• Other methods of notice of penalties include oral notice, past

practice, notice to the union, new employee orientations, bulletin

board postings, payroll stuffers, employee meetings, mailers,

training (save those training certificates!), emails, evaluative

correspondences, and intranet postings.

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Due Process during the Investigation: Acceptable Notice Examples

Example 1:

• Employee was terminated after being careless in her job performance on a number

of occasions over the two-year period of her employment. Prior to termination, the

employee received counseling and instructions regarding her performance.

Disciplinary action taken against her was: (1) a verbal warning for failure to get

approval before taking leave and an altercation with a co-worker in front of a

customer and (2) a written warning for improper check processing. Two weeks after

the written warning, the employee received a performance appraisal, which

contained constructive criticism and pointed out areas of deficiencies, but did not

state that her performance was not acceptable.

• Is the termination upheld?



Example 1:

• No. Based on the employee’s satisfactory performance evaluation, the

arbitrator did not find sufficient evidence of misconduct or sufficient

notice to the employee to warrant termination. State of Montana, 121 LA

1194 (Calhoun, 2005).


Due Process during the Investigation: Sufficient Notice Examples

• Example 2:

• An employee set up a small business selling marine equipment and

supplies, where he bought gasoline for resale from a competitor of his

employer. The employee was terminated for violating a conflict-of-

interest rule set forth in a company handbook. The employee asserted

that he never had been made aware of any such rule. As a general

practice, new employees received handbooks and that revised editions

were either handed out or placed on a table for employees to pick up.

• Is the discharge upheld?

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• Example 2:

• No. Despite the employer’s general practice, the

employer did not know whether this particular employee

had ever been given a handbook. There also was no

evidence that the union had ever received a copy of the

rules. Therefore, the employer failed to prove that the

employee had knowledge of the policy he was

discharged for violating. Phillips Petroleum, 47 LA 372

(Caraway, 1966).



• Example 3:

• Trying to figure out why her production was below average, an

employee's foreman concluded that one factor slowing down her output

was her long fingernails. He directed her to cut them. She refused—not

once, but twice—and was given a three-day and then a 10-day

suspension. Upon returning from her 10-day suspension, she declared

that she had finally complied with the foreman's order and displayed the

nail clippings in a plastic bag. Still too long, the foreman decided to fire

her.

• Is the discharge upheld?



• Example 3:

• No. The foreman never told the employee how short to cut her

nails; he just said to make them short enough so she could

work at a proper pace. For that reason, the employee was

reinstated with back pay—and the company was directed to

prescribe a reasonable fingernail length for all employees in

the department and to communicate that standard properly.

Honeywell, Inc., 74 LA 918 (Belshaw, 1980)

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Due Process during the Investigation: What is a Meaningful Opportunity to Respond?

• The accused generally must have the “right to be heard” before

discipline is imposed.

Arbitrators often view failure to interview the accused as a fatal

flaw. Milbank Mfg. Co., 112 LA 464, 467 (Crider, 1999); State of

Montana, 122 LA 923, 927 (Calhoun, 2006); California

Sportservice, 123 LA 1228, 1235 (Calhoun, 2007).

Other arbitrators require a showing of prejudice to find failure to

provide the opportunity to be heard as fatal.



• The opportunity to be heard often takes the shape of a hearing:

When an employer conducts the hearing, arbitrators generally require the

meeting to be held in a non-threatening atmosphere and allow the

employee to have a union representative present.

Information in the employer’s possession, documentary evidence or

witness statements, is ordinarily described or shown to the grievant and

the union.

Arbitrators are split on whether the accused has the right to confront her

accuser.



• What if the accused is provided the opportunity to be heard after

discipline is imposed?

To give audience to the accused only after discipline has been

determined unfairly places the employee “in the unfortunate

position of trying to change the employer’s mind rather than

explaining her side of the story before management’s mind

becomes entrenched in a conclusion – an often hopeless battle.”

State of Montana, 122 LA 923, 927 (Calhoun, 2006).

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Due Process during the Investigation: What Constitutes “Double Jeopardy?”

• Once an employee has been disciplined for misconduct, the

employee must not again be subject to discipline for the same

offense.

• Double jeopardy also precludes increasing the penalty for a

violation after discipline has been imposed.

• As a general rule, even if a subsequent investigation reveals

facts justifying greater discipline, the employer may not impose

the greater discipline.


Due Process during the Investigation: What Constitutes “Double Jeopardy?”

• Double jeopardy does not apply when:

The employer's incomplete knowledge of the facts at the time discipline was imposed is

not the employer's fault,

When a supervisor expresses an opinion about a potential disciplinary outcome but

says that the investigation is still continuing or is subject to review by upper-level

management, or

If the disciplinary decision is not final when first imposed.

• Example: When the employer specifies that the initial discipline is imposed

pending investigation, subsequent disciplinary action is not considered

double jeopardy.


DUE PROCESS DURING THE HEARING

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Due Process during the Hearing: Fundamental Considerations and Issues

• Prehearing notice should be sufficiently explicit to allow the employee

to determine what criteria and standards the decision maker will be

considering when making its final determination and should contain

precise information about the reasons for termination. Good practice

suggests this notice is provided in writing.

• Scheduling the time and place of the meeting is within the decision

maker’s discretion, although regard should be given to the

convenience and necessity of the parties and their representatives.



• What if the employee waives the right to a hearing? Congratulations,

the requirements of procedural due process have been fulfilled and the

employee’s decision may constitute a waiver of the claims she might

have presented at such hearing.

• What if the employee has an attorney present at the hearing? The

right to be represented by counsel of the employee’s choice must be

afforded, even though counsel may not have a constitutional right in all

circumstances to participate at the hearing.



• Can the employee depose witnesses prior to the hearing? There is no

procedural right to depose witnesses prior to the hearing. Nor is there

a right to receive a summary of each witness’s testimony.

• Remember the uncertainty regarding the right to cross examine

witnesses: It will depend on the jurisdiction and likely the specific facts

of your case. Regardless, the right to cross-examine is not limitless.

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Due Process during the Hearing: The Unbiased Decision maker

• Bias—the Quintessential Attack—the boss is out to get me!

• While the employee is entitled to an impartial tribunal, a

decision maker does not violate the requirement of impartiality

by performing a combination of investigative and adjudicative

functions.

• Fundamental Principle: There is a strong “presumption of

honesty and integrity in those serving as adjudicators.”



• Bias:

• Actual bias; or

• High Probability of Bias

• In the absence of sufficient evidence to overcome this high burden, a

court cannot assume that simply because a decision maker votes in

favor of removal, or in favor of an investigation into removal, that the

decision maker is out to “get” the employee.

• Because actual bias is difficult to prove, the cases center around

whether a high probability of bias exists.



• Actual bias example: A college board enacted a resolution to “seek to

terminate” the college president prior to a removal hearing and

publicized the notice of reasons to dismiss the college president.

• Actual bias example: A teacher whose coaching contract was

nonrenewed was reinstated when evidence showed two Board

members were vocally dissatisfied with their children’s roles on the

team; one Board member asked for the coach’s resignation, four Board

members relied on a recommendation that wasn’t released until

afterwards; and all four asked other candidates about their interest in

the coaching job.

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• In the absence of actual bias, there must exist

“[c]ircumstances which lead to a high probability of bias.” The

United States Supreme Court has identified only two such

situations that meet this high standard:

• Where the adjudicator has a pecuniary interest in the outcome; or

• Where the adjudicator has been the target of personal abuse or

criticism from the party before him. The abuse and criticism of the

objecting party must be so egregious as to absolutely cloud the ability

of the decision-maker from making any rational decision.



• “Personal abuse or criticism” creates a constitutionally

impermissible appearance of bias only when the adjudicator

and a litigant have become embroiled in a running controversy

in which the litigant has slandered the adjudicator in such a

manner that makes it unlikely the adjudicator can maintain a

calm detachment. Nu-Roc Nursing Home, Inc. v. State, 200

Wis. 2d 405, 416, 546 N.W.2d 562 (1996)



• A high probability of bias? A school board member who encouraged a

member of the community to testify against a principal in a nonrenewal

proceeding did not present sufficient evidence of bias to constitute a

denial of due process. Norbeck v. Davenport Comm. Sch. Dist., 545

F.2d 63, 68–69 (8th Cir. 1976).

• A high probability of bias? A school board member who campaigned on

a platform to “get rid” of a teacher did not constitute sufficient evidence of

a financial or personal stake to constitute removal of that Board member

from that teacher’s nonrenewal hearing. Jones v. Sulley Buttes Schs.,

340 N.W.2d 697, 700 (1983).

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Due Process during the Hearing: Two Other Big Avoidable Due Process Problems

• First, the lawyer advising the public-sector employer must

know what role they will take on. If the lawyer is advising the

employer during the investigation, then that lawyer should not

advise the decision maker if that decision maker is a

governmental body conducting an impartial hearing. Separate

legal counsel should be brought in. This is why two separate

law firms are often involved, and the City Attorney surveys the

carnage from the sidelines.


Due Process during the Hearing: Two Other Big Avoidable Due Process Problems

• Second, what if the governmental body serving as decision maker for removal wants to consider

matters not part of the notice for hearing for termination?

• In State ex rel. Alba v. City of Waukesha Police & Fire Commission, 365 Wis. 2d 195 (Ct. App. 2015), the

decision maker could not consider evidence unrelated to a specific charge and then issue a finding on that “new” charge based in part on evidence that members of that governmental body were witnesses to the

evidence for that new charge,

• The Court of Appeals stated: “One of the findings of fact from the disciplinary hearing stated that the PFC considered as evidence the responses Alba gave to [PFC Chairperson’s] questioning. We agree with Alba

that this constituted a due process violation. PFC members essentially were witnesses at the interview, then used their recollections when they sat as adjudicators at his disciplinary hearing. The PFC

undisputedly made a finding based on personal knowledge and perception rather than on evidence presented at the hearing and available to the public. A judge ‘cannot be a witness and the finder of fact,

too.’”


Final Questions

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Thank You

Presented by: Todd A. Lyon Kyle Gulya Fisher Phillips von Briesen & Roper [email protected] [email protected] (503) 205-8095 (608) 316-3177


Observing Due Process: In Hell There Will be Nothing but Law … 2017 Long Beach/2017 … · ·...

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