Name-clearing Hearings: Public Interest Versus Personal Liberty
| Jurisdiction | United States,Federal |
| Citation | Vol. 16 No. 2 Pg. 253 |
| Pages | 253 |
| Publication year | 1987 |
1987, February, Pg. 253. Name-Clearing Hearings: Public Interest Versus Personal Liberty
Government employers increasingly are releasing facts and conclusions regarding employee discipline to the general public. This trend presumably is in response to public demands to know how the government is handling internal problems. While the government is accountable to its constituents, balanced against this "right to know" is an employee's legitimate expectation of privacy in personnel matters. Therefore, it is incumbent upon the government lawyer to understand the competing interests at stake and the potential liability emanating from infringement of personal liberty interests.
This article discusses the public employee's right to a name-clearing hearing. The liability of the government employer in making public statements about the employee is also addressed.
If false, stigmatizing allegations or statements about a governmental employee are made public in connection with the employee's termination from employment, the government and the individual or individuals making the statements may be held liable under 42 U.S.C. § 1983 for depriving the individual of "liberty without due process of law" unless the government allows the employee an opportunity to clear the employee's own name at a public hearing. (fn1) This interest in liberty exists independently of any property interest; a public employee is constitutionally entitled to retain a good name even when not entitled to retain a good job.
Once the existence of a procedural due process right to continued employment is identified, three factors must be considered in determining the process that is due: (1) the private interest affected; (2) the risk of erroneous deprivation along with the probable value of added or substitute procedural safeguards; and (3) the state interest involved, including the fiscal and administrative burdens of additional or substitute procedural requirements.(fn2) In essence, the employer's interest in quickly and efficiently dismissing problematic employees must be weighed against the employee's interest in preventing the public dissemination of stigmatizing statements made about the employee by the employer. The U.S. Supreme Court has mandated that this balancing test be applied to a name-clearing hearing as well.(fn3)
If stigmatizing oral or written comment is made, the government should attempt to minimize the damage by offering the injured party a name-clearing hearing. An offer of a hearing can be beneficial in reducing damages even if it is made after a lawsuit is filed.(fn4) Courts increasingly are finding that public employees have a property right in continued employment and a concomitant right to a pretermination hearing; therefore, there probably will be an increase in the number of due process hearings held.(fn5) However, a hearing to determine an employer's right to terminate an employee may not provide a sufficient public name-clearing forum for a stigmatized employee.
A recent line of "liberty interest" cases begins with Board of Regents v. Roth,(fn6) which held that dismissal does not implicate a denial of a due process liberty interest unless the reasons for dismissal are serious enough to damage the employee's reputation in the community or in a job search, or if there is an attempt to restrict the employee's future job possibilities. The U.S. Supreme Court noted that mere non-retention, which simply may make an individual less attractive to other employers, does not deprive a person of a liberty interest. Ideally, according to Roth, an employee deprived of liberty in connection
with termination should have an opportunity to refute the charge before the employer and clear the employee's good name. It is the nature of the interest, and not the extent of the injury to the individual, that determines whether due process protection attaches.
In Paul v. Davis,' the U.S. Supreme Court held that injury to reputation alone is not sufficient to involve the guarantees of procedural due process, since an individual's interest in reputation by itself is not a "liberty or property interest" within the meaning of the Fourteenth Amendment. The Court further opined that an individual's interest in reputation does not fall within any of the recognized "zones of privacy." In distinguishing this case from Roth, the Court stated:
Thus it was not thought sufficient to establish a claim under § 1983 and the Fourteenth Amendment that there simply be defamation by a state official; the defamation had to occur in the course of termination of employment. Certainly there...
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