Section 10 Procedural Due Process Rights of Public Employees

• Library: Emp-Emp Law 2000

The central purpose of the right of procedural due process, protected by the Fourteenth Amendment to the United States Constitution and Mo. Const. art. I, § 10, is to “protect persons . . . from the mistaken or unjustified deprivation of life, liberty, or property.” Carey v. Piphus, 435 U.S. 247, 259 (1978). Due process procedures are designed to enable persons “to contest the basis upon which a State proposes to deprive them of protected interests.” Id. at 260. As the substantive constitutional rights of public employees have developed during the last several decades, so has a recognition that public employees should be entitled to notice of the reasons for employment decisions that adversely affect their protected interests, and they should be afforded some opportunity to contest these actions.

Constitutional due process is available only when the government’s decision affects a benefit of employment in which the employee has a property interest or impinges upon a liberty interest of the employee.

A Constitutionally protected property interest in a public sector job exists only when the employee can establish a legitimate expectancy of continued employment in the position. Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). The source of this “legitimate expectancy” is not the Constitution. The Constitution only defines the due process procedures that are required when such a property interest exists and is threatened. Id. The property interest, instead, is created by any “rules or understandings that stem from an independent source such as state law—rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Id. at 577.

The most typical source of a property interest in public employment is state statutes that establish a tenure or analogous system for certain employees (such as the Missouri Teacher Tenure Act, §§ 168.102–168.130, RSMo 1994, and Missouri’s The State Personnel Law, Chapter 36, RSMo) and that provide that a covered employee will only be terminated for specified causes.

A property interest in public employment may also be created, however, by a contract between the public employee and the public employer that evidences “a formal understanding that supports a . . . claim of entitlement to continued employment unless sufficient ‘cause’ is shown.” Perry v. Sindermann, 408 U.S. 593, 601 (1972). A contract for a definite term or one that expressly states that an employee may only be terminated for cause will create such a property interest. See Blankenbaker v. McCook Pub. Power Dist., 940 F.2d 384...