§ 5.1.5 Fifth and Fourteenth Amendment Due Process Rights

• Jurisdiction: Arizona

§ 5.1.5 Fifth and Fourteenth Amendment Due Process Rights. Unlike private sector employees, public employees have constitutional rights that may affect their employment situation. These include procedural due process rights. The U.S. Supreme Court, in Cleveland Board of Education v. Loudermill,¹⁸ decreed that before a public employee with a right to continued employment could be terminated, he or she had a right to a due process hearing at a meaningful time, i.e., prior to termination. The employee is entitled to a hearing before being deprived of the property interest in public employment. The existence of a property interest is determined by federal and state law.¹⁹ Probationary employees and those not covered by merit or civil service rules may not have a property interest in their employment enforceable against the employer. These employees may, however, have a liberty interest and right to a name-clearing hearing.²⁰ Approximately 88% of state employees are not covered by a Merit System (see Article 5.2, infra).

Loudermill hearings do not have to be elaborate. Such a hearing may be as simple as a written notice or oral notice of the charges against the employee and the chance to respond to the employee's supervisor or other management personnel.²¹Loudermill rights cannot be cured by an after-the-fact hearing. Thus, a personnel board hearing after the termination has already taken place will not serve to give an employee Loudermill rights. The Arizona Court of Appeals followed Loudermill in Zavala.²² (See § 5.4.10.1, infra).

The personnel board or merit system commission will be held to minimal due process standards. These standards require that to have a fair hearing, the claimant must be apprised of the information against him or her and the opportunity to rebut such information. The employee may have a right to other things such as counsel under the APA.²³ If not apprised, the claimant was not afforded a fair hearing.²⁴ Case law makes it clear that administrative hearings do not need to be full blown trials. However, the claimant must receive advance notice of the adverse evidence that will be used in rejecting the claim so that he or she will be able to rebut it at the hearing.

As the court in Robbins stated:

The principle that a due process hearing include the right to know what evidence is being used against one and the opportunity to rebut it has been termed "relatively immutable." [Citation omitted.] The few contexts in which this principle is not applied involve critical governmental interest such as the maintenance of prison discipline, national security and the protection of confidential informants.²⁵

This minimal due process is in keeping with the reality of personnel boards and commissions. The personnel board will often be composed of lay members of the community. Formal rules of evidence do not apply in these hearings, and relevancy is often interpreted broadly. The hearing must be either transcribed or recorded in order to fit within the Administrative Review Act's (ARA) limited scope of review. If a hearing was not stenographically or mechanically recorded and a trial de novo is demanded in the complaint, the trial will be de novo.²⁶

In addition or as an alternative to a procedural due process claim, an employee may also have a substantive due process claim. Adverse actions that serve no legitimate government purpose in...