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Employment & Labor Law for Public Safety Agencies


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Disciplinary Hearings - Untenured

     A law enforcement cadet enrolled in a training academy was terminated for allegedly making sexual remarks to female cadets as well as falling asleep in class and showing up late. Addressing his complaint that he was improperly denied a name clearing hearing on the sexual harassment accusations, a federal appeals court agreed that even an at will public employee has a right to notice and an opportunity to be heard when they are fired "in a manner that creates a false and defamatory impression about him and thus stigmatizes him and forecloses him from other employment opportunities." In this case, however, the ex-cadet did not demonstrate that the sheriff had publicized the allegedly defamatory statements about him and why he was being fired. Bellard v. Gautreaux, #10-31266, 2012 U.S. App. Lexis 5436 (5th Cir.).
     A probationary police officer is not entitled to a termination hearing. Allegations of animosity against him on the part of some police department personnel are irrelevant without an indication they were involved in the termination decision. Bienz v. Kelly, #2750, 2010 NY Slip Op 04035, 73 A.D.3d 489, 2010 N.Y. App. Div. Lexis 3954, 901 N.Y.S.2d 199.
     Because a rejected CIA applicant admitted facts relating to his termination from a county police dept., he did not establish that he was harmed by not having a name-clearing hearing, citing Codd v. Velger, 429 U.S. 624 at 628 (1977). Walsh v. Suffolk County Police Dept., #08-2624-cv, 2009 U.S. App. Lexis 14292 (Unpub. 2nd Cir.).
     Deputy marshal was an at-will employee and was not entitled to a pretermination hearing. Darr v. Town of Telluride, #06-1227, 495 F.3d 1243, 2007 U.S. App. Lexis 18467 (10th Cir.).
     Fourth Circuit concludes that a city was required to provide a terminated probationary police officer with a name-clearing hearing. The city had a practice of sharing separation information with some prospective employers. Sciolino v. City of Newport News, #05-2229, 2007 U.S. App. Lexis 5734 (4th Cir.).
     Federal magistrate holds that a volunteer police reserve officer has no due process right to a hearing or reinstatement, because he lacks a property interest in continued employment. Dennison v. City of Phoenix (Oregon), #06-77-CO , 2007 U.S. Dist. Lexis 14569 (D. Ore, 2007).
     A terminated at-will employee cannot complain of not receiving a name-clearing hearing if he did not ask for one. Bledsoe v. City of Horn Lake, #04-60983, 2006 U.S. App. Lexis 11678 (5th Cir. 2006). {N/R}
     A non-tenured police officer (or other public employee) must ask for a name-clearing post-termination hearing and cannot later sue for having been deprived of it. Winskowski v. City of Stephen, #05-2777, 2006 U.S. App. Lexis 7655 (8th Cir. March 29, 2006). {N/R}
     A probationary police officer, who was fired because of a felony arrest, and then acquitted of the charges in a criminal trial, is not entitled to an additional name-clearing hearing under the Due Process Clause. Graham v. City of Philadelphia, #03-3372, 402 F.3d 139, 2005 U.S. App. Lexis 4853 (3rd Cir. 2005). {N/R}
     New York appellate court rules that "probationary employment can be terminated without a hearing, absent a showing that the termination is in bad faith or for an impermissible reason," but that a public employee is entitled to a name-clearing hearing if he or she disputes the allegations leading to termination. Budd v. Kelly, #5169, 788 N.Y.S.2d 114, 2005 N.Y. App. Div. Lexis 488 (A.D. 2005). {N/R}
     Federal appeals court reverses a $333,820 verdict for race discrimination brought by a former city employee, and remands for a new trial the issue of damages incurred by plaintiff due to the City's failure to provide him with an adequate name-clearing hearing. Patterson v. City of Utica, #03-7285, U.S. App. Lexis 10722 (2d Cir. 2004). {N/R}
     Ninth Circuit holds that placing of a termination notice containing stigmatizing information in a county employee's personnel file, where a state law required for public release on request, constituted publication, and the lack of an opportunity for a name-clearing hearing violated his rights of due process. Because the right to a name-clearing hearing was clearly established they were not entitled to assert qualified immunity. Cox v. Boxer, #00-35887, 359 F.3d 1105; 2004 U.S. App. Lexis 3015 (9th Cir. 2004). {N/R}
     Federal court in Philadelphia concludes that a probationary officer, who was fired after his arrest on a morals charge, is entitled to a name-clearing hearing. His acquittal of all criminal charges did not satisfy the hearing requirement. Graham v. Johnson, #02-7794, 2003 U.S. Dist. Lexis 12146 (E.D. Pa. 2003). [2003 FP Oct]
     Terminated at-will police officer did not have a protected property interest in continued employment, and could not show that the defendants made any untrue or stigmatizing public statements. Eddings v. City of Hot Springs, #02-1895, 2003 U.S. App. Lexis 4246(8th Cir. 2003). {N/R}
     A city manager had a liberty interest in clearing his name and received a sufficient notice and hearing. His defamation claim fails because the statements were privileged opinions, expressed during a political dispute. Hammer v. City of Osage Beach, #01-3206, 2003 U.S. App. Lexis 1656 (2003). {N/R}
     Federal appeals court declines to set aside a damage award for a police lieutenant who was fired, without a hearing, on bogus sexual misconduct charges. Speer v. City of Wynne, #00-3776, 276 F.3d 980, 2002 U.S. App. Lexis 552 (8th Cir. 2002).  [2002 FP Apr]  
     Appeals court concludes that an 8-month period between a suspension without pay and his subsequent reinstatement was not adequate to prevent liability for denying an officer a pre-deprivation hearing. McDonald v. City of Dayton, #18721, 2001 Ohio App. Lexis 5150, 18 IER Cases (BNA) 125 (Ohio App. 2d Dist. 2001).   [2002 FP Apr]
     New York holds that a “stigmatized” probationary employee is entitled to a name-clearing hearing, even if there is no unfavorable publicity, if there is a likelihood of the accusations becoming public. Proof of dissemination still necessary in damage suits, however. Swinton v. Safir, #153, 720 N.E.2d 89, 93 N.Y.2d 758, 1999 N.Y. Lexis 3433. [2000 FP 37-8]
     Terminated officer loses his lawsuit for job impairment, based on the department's failure to provide him with a name-clearing hearing. In the 5th Circuit, a plaintiff must prove the former employer actually disclosed disparaging information to prospective employers. Smothers v. Champagne, 1998 U.S. Dist. Lexis 20317 (E.D.La. unpub.). [1999 FP 53]
     A divided Ohio appellate court upholds summary termination of probationary employees, without a pre- or post-separation hearing. Nichols v. Columbus Civ. Serv. Cmsn., 672 N.E.2d 205, 109 Ohio App.3d 344 (1996). [1997 FP 115-6]
     Probationary police officer could be discharged without a hearing and without a statement of reasons, in the absence of a showing the termination was for a constitutionally impermissible purpose. Beacham v. Brown, 627 N.Y.S.2d 358 (A.D. 1995). {N/R}
     Dept. not required to give a probationary officer a pre or post-termination hearing where there was no disclosure or publicity concerning the allegations against him. Oliveri v. Rodriguez, 944 F.Supp. 686 (N.D.Ill. 1996). [1997 FP 53]
     Fire chief lacked a property interest in continued employment; procedural safeguards were not applicable to his termination. Farthing v. City of Shawnee, 39 F.3d 1131 (10th Cir. 1994). {N/R}
     Federal appeals court affirms dismissal of a suit challenging the termination of a police officer without a formal or name-clearing hearing. Officer lacked a legal right to continued employment and his separation was not accompanied by adverse publicity. Beres v. Huntley, 1994 U.S. App. Lexis 28511, 37 F.3d 1501 (Unpub. 7th Cir.). [1995 FP 36]
     Verbal assurances from the chief that officers would not be terminated except for just cause are unenforceable, because a police chief lacks the legal authority to bind the governmental entity that employers police officers. Hadley v. Co. of DuPage, 715 F.2d 1238 (7th Cir. 1983); cert.den. 92 S.Ct. 2694 (1984).
     N.Y. court upholds a negotiated plea agreement that establishes a probationary period in lieu of discipline. Such agreements do not, in every case, allow superiors the right to deny the employee a hearing, in the event of alleged additional misconduct. Tankard v. Abate, 159 Misc.2d 339, 603 N.Y.S.2d 951 (1993). [1994 FP 163-4]
     California appellate court requires a name-clearing hearing for an at-will police chief who was terminated for misconduct, mismanagement and misjudgment. Binkley v. City of Long Beach, 16 C.A.4th 1795, 20 Cal.Rptr.2d 903 (1993); Cert. denied, 114 S.Ct. 1301 (1994). [1994 FP 85]
     Fed. appeals court holds that volunteer firefighters can be “employees” and privately incorporated fire companies can be liable under Sec. 1983 for civil rights violations. Haavistola v. Comm. Fire Co., 6 F.3d 211 (4th Cir. 1993). [1994 FP 21]
     Appellate court overturns termination of a probationary officer who was denied a "name-clearing" hearing. IAD interview was not a meaningful alternative, Fontana v. Commissioner, M.D.C., 34 Mass.App. 63, 606 N.E.2d 1343 (1993). [1993 FP 132-3]
     A legally-protected property interest may exist by statute, regulation, employee guidance manual, policy or practice, written contract, or express mutual agreement. Without such an interest, there is no right to due process in disciplinary actions. Pesek v. City of Brunswick, 794 F.Supp. 768 (N.D.Ohio 1992). [1993 FP 23-4]
     Termination of probationary officer for refusal to respond to a call during lunch was not sufficiently stigmatizing to require a “name-clearing hearing.” Brito v. Diamond, 796 F.Supp. 754 (S.D.N.Y. 1992). [1993 FP 52]
     NY appellate court holds that a pretermination “name-clearing” hearing was unnecessary when untenured (probationary) officer had been indicted for murder. Bazemore v. Koehler, 564 N.Y.S.2d 428 (A.D. 1991). [1992 FP 20]
     Untenured police reserve officer who was terminated for alleged misconduct recovers $65,000 plus legal fees for reputational injury and due process violations. Heger v. City of Costa Mesa, 282 Cal.Rptr. 341 (App. 1991).
     Violation of a stipulation settlement agreement, signed to avoid disciplinary action for past misconduct, is sufficient basis for termination without a hearing. Wilson v. Jackson, 555 N.Y.S.2d 429 (A.D. 1990).
     Probationary employee entitled to a pretermination hearing when she alleges a discriminatory purpose. Garrison v. Koehler, 555 N.Y.S.2d 87 (A.D. 1990).
     Former police officer was entitled to a name-clearing hearing when stigmatizing information was part of his IAD file. Buxton v. City of Plant City, 871 F.2d 1037 (11th Cir. 1989).
     City could terminate an untenured officer “for good of the department” without affording him a “name-clearing hearing.” Butcher v. City of Sikeston, 683 F.Supp. 212 (E. D. Mo. 1988).
     A police chief did not have a property interest in her job where the city charter expressly states she was subject to removal by the mayor. Harrington v. City of Portland, 708 F.Supp. 1561 (D.Ore. 1988).
     Confidential and policy-making employees may be terminated for political reasons. Alamo Hernandez v. Hernandez, 664 F.Supp. 646 (D.P.R. 1987).
     Failure to give an untenured employee a name-clearing pretermination hearing was wrong; deputy recovers $25,000. Willbanks v. Smith Co., Tex. 661 F.Supp. 212 (E.D. Tex. 1987).
     Name-clearing hearing not required, even though city accused chief of unsatisfactory performance. Robinson v. City of Montgomery City, 809 F.2d 1355 (8th Cir. 1987).
     Academy trainee could not be forced to resign for having sex with another trainee without a stigma-clearing hearing. Hoffman v. McNamara, 630 F.Supp. 1257 (D. Conn. 1986).
     Failure to give an untenured employee a name-clearing pretermination hearing was wrong; deputy recovers $25,000. Willbanks v. Smith Co., Tex. 661 F.Supp. 212 (E.D. Tex. 1987).
     Absent proof the police dept. or other officials disseminated stigmatizing information in a way that would reach the community at-large or potential employers of the plaintiff, she was not entitled to "name-clearing" hearing before her discharge. Ratliff v. City of Milwaukee, 795 F.2d 612 (7th Cir. 1986). {N/R}
     Firefighter entitled to hearing on termination for omissions in his pre-employment application. City of Austin v. Banks, 696 S.W.2d 700 (Tex.App. 1985).
     Probationary officer not entitled to termination hearing where his reputation was not impugned. Mitchell v. Town Board of New Windsor, 468 N.Y.S.2d 18 (A.D. 1983); Buckley v. City of Collierville, 658 S.W.2d 541 (Tenn.App. 1983).
     Untenured senior employee could be fired without a pretermination hearing. Edwards v. Brown, 699 F.2d 1073 (11th Cir. 1983).
     Hearing not required; untenured employee was terminated and slandered, but was offered alternative employment. Lawson v. Sheriff of Tippecanoe County, 537 F.Supp. 918 (N.D. Ind. 1982).
     Political appointees who serve at pleasure of executive not entitled to hearing on removal unless charges pending. Enomoto v. Brown, 172 Cal.Rptr. 778 (App. 1981).
     U.S. Supreme Court holds that where the city council released defamatory information about the police chief, an at-will employee, who was summarily terminated, the city was liable for due process violations and has no immunity under Sec. 1983. Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 1980 U.S. Lexis 14. {N/R}
     Missouri appellate court holds that due process is not required for termination of at-will officer; fact that ordinance established set charges did not limit termination by city council. Johnson v. City of Buckner, 610 S.W.2d 406 (Mo.App. 1980); State ex rel. Gorris v. Mussman, 612 S.W.2d 357 (Mo.App. 1980).
     Federal appeals court upholds damage award against city for not holding a “name clearing hearing” to discharge a probationary employee. Codd v. Velger, 97 S.Ct. 882 at 884 (1977). [Note: Landmark case!]
     Supreme Court refuses to grant public employees a right to a hearing, order reinstatement, under due process clause alone. Claimants must show a contractual or statutory violation. “The federal court is not the appropriate forum in which to review the multitude of personnel decisions that are made daily by public agencies.” (Stevens, writing for the majority). Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074 (1976). Note: Landmark case!
     Probationary police officer was entitled to a name-clearing hearing based on his termination for allegedly misrepresenting his prior employment record and his draft status. Purdy v. Cole, 317 So.2d 820, 1975 Fla. App. Lexis 13837. {N/R}
     See also: Disciplinary Hearings - Tenured/General Rules; Disciplinary Offenses - Sufficiency of Proof; Disciplinary Punishment; Disciplinary Procedures; Polygraph Examinations; Probationary Employment; Retirement Benefits; Transfers; Wrongful Discharge.


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