IV. Fourteenth Amendment: Procedural Due Process and Employee Property Rights

• Library: Municipal Law Deskbook (ABA) (2015 Ed.)

IV. FOURTEENTH AMENDMENT: PROCEDURAL DUE PROCESS AND EMPLOYEE PROPERTY RIGHTS

A. What Is Property?

The Fourteenth Amendment prohibits the deprivation of a public employee's life, liberty, or property, except pursuant to constitutionally adequate procedures (i.e., with due process of the law). Under certain circumstances, disciplinary action, including discharge and demotion of a public employee, may result in the deprivation of property. Whether a public employee enjoys procedural protections depends on the ability to show a property interest in continued employment exists. Property interests can extend to lesser aspects of the person's employment such as entitlement to continue in a promotional position or premium-pay assignment.

The U.S. Supreme Court, in Board of Regents v. Roth, held: "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He or she must have more than a unilateral expectation of it. He or she must, instead, have a legitimate claim of entitlement to it." ⁶⁶

"Property interests, of course, are not created by the Constitution." ⁶⁷Courts have concluded that a "[p]roperty interest in employment may be created by express or implied contracts, municipal ordinances or state laws—including those 'rules or understanding that secure certain benefits and that support claims of entitlement to those benefits.' " ⁶⁸

B. Entitlement to Property

There is no per se protected property right to public-sector employment.⁶⁹ The question of whether a public employee has a protected property interest in employment is not always clear. One example of a formal creation of a property right is found in tenure statutes that limit the ability of an employer to discipline, except for cause or just cause.⁷⁰ Express or implied contracts may also be sufficient to create an entitlement.⁷¹ However, some courts have determined that neither longevity nor mere assurance create such an entitlement.⁷²For instance, the Seventh Circuit considered whether a county employee had de facto tenure. Several county members had assured him that he would not be terminated so long as he performed his job satisfactorily. Rejecting the notion that oral assurances create a property interest, the court stated:

Any claim of entitlement to public employment based on these assurances was, at best, only a unilateral expectation which is insufficient to support a property interest. Since mutuality would require an assurance from the County Board itself, and since there has been no showing that the County Board ever officially made such an offer or promise of continued employment, [the plaintiff's] attempt to establish a property interest based on the unauthorized statements of individual board members must fail.⁷³

At-will employees generally have no property interest in relation to continued employment. Therefore, they may be discharged without cause or formal procedure.⁷⁴ For example, in a Tenth Circuit decision, an employee alleged that the employer violated his procedural due process rights when it revised its employee manual to eliminate his property interest. The court rejected the employee's contention that any of the old or new policies found in the employee handbook transformed an at-will employee into a tenured employee.⁷⁵ Some employee handbooks can confuse the issue by setting out policies or requirements for conduct without addressing whether a rule or policy violation would constitute cause for termination. Public employee collective bargaining agreements typically avoid "prejudging" the penalties or loss of property rights that will result from certain violations: allegations of misconduct require notice, hearing, and a consideration of many factors when deciding what penalty is appropriate. See chapter 6.

C. Pre-termination Stage Due Process

Once it has been determined that an employee has an established property interest in employment, "the question remains what process is due." ⁷⁶ "It is by now well established that 'due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances."⁷⁷ "[D]ue process is flexible and calls for such procedural protections as the particular situation demands." ⁷⁸

Essential to the due process principle, with rare exception, is that a deprivation of property must "be preceded by notice and an opportunity for hearing appropriate to the nature of the case." ⁷⁹ The Supreme Court has held that to satisfy minimal procedural due process requirements, an employee with a property interest in his job "is entitled to oral or written notice of the charge against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." ⁸⁰ The pre-termination hearing is considered to be an initial check against decision to ensure that the employment determination is based on reasonable grounds.⁸¹ Essentially, the hearing gives the employee an opportunity to be heard.

To determine what process is constitutionally due to a public employee, the Supreme Court has espoused a three-factor balancing test: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such...