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SECOND
APPELLATE DISTRICT
MICHAEL
MCDONALD,
Plaintiff-Appellant
vs.
CITY
OF DAYTON, et al.,
Defendants-Appellees
C.A.
CASE NO. 18721
2001
Ohio App. Lexis 5150
18
IER Cases (BNA) 125
November
16, 2001, Rendered
GRADY, J.
FAIN, J., concurs. BROGAN, J, concurring in part
and dissenting in part.
This
is an appeal from summary judgments that the court of common pleas granted for
the Defendants on multiple claims for relief in an action brought by a police
officer, Michael McDonald,
after he was suspended from his position and subsequently discharged for
misconduct. The principal issue on appeal is whether McDonald was denied his
due process right to a hearing when his salary was discontinued without a
hearing after he had previously been suspended with pay. The trial court held
that a subsequent arbitration proceeding that ordered McDonald restored to his
position satisfied the due process requirement. We do not agree.
Therefore, the summary judgment rendered on the claim for relief in which the
issue arises, which is a claim for violation of McDonald's civil rights, will
be reversed and the matter will be remanded for further proceedings on that
claim for relief.
I.
Dayton
Police Officer Michael McDonald was on duty during the evening hours of
February 17, 1998. He went to a Wendy's restaurant to order his dinner. After placing his order and
paying for it, McDonald and the order clerk got into a dispute over the amount
of change she gave him, which McDonald claimed was too little. The dispute
escalated and McDonald decided to arrest the clerk. When she refused to submit,
McDonald used his pepper spray to disable her. These events were observed by
other people at the restaurant.
McDonald is white. The female
employee is African-American. McDonald's use of pepper spray produced
considerable commotion and protest, both at the restaurant that night and
during the ensuing weeks in the Dayton community, where organized opposition
was voiced to police conduct in general vis-à-vis race and with respect to
McDonald's actions in particular.
McDonald's supervisor was called to the restaurant on the night of the
incident and decided to send McDonald home. The following day, February 18,
1998, McDonald was ordered
to attend a "show cause hearing" concerning allegations of misconduct
and any discipline that might be imposed. On that same date McDonald was
suspended from active duty with pay, conditioned on the positive results of a
psychological examination he was ordered to undergo.
The report of McDonald's
psychological examination indicated that he was fit for duty. On
February 25, 1998, McDonald was assigned to a clerical job in the Dayton Police
Division. However, McDonald was removed from that position and was again sent
home on February 26, 1998. His
pay was continued during the ensuing suspension, however.
On March 18, 1998, one month
after McDonald was first suspended with pay, criminal charges arising from the
Wendy's incident were filed against him in Dayton Municipal Court. McDonald was
charged with four misdemeanors; assault, attempted assault, criminal
trespassing, and disorderly conduct. As a direct result of these charges
McDonald's salary was discontinued by the City of Dayton during his suspension.
The City conducted no form of hearing prior to its decision to discontinue
McDonald's salary.
The criminal charges against
McDonald were prosecuted on the City's behalf by a special prosecutor from
another jurisdiction. The case was heard by a visiting judge, who dismissed
three of the charges against McDonald and acquitted him on the remaining charge
in June 1998.
In
July 1998, the Internal Affairs division of the Dayton Police Department began
an investigation of the Wendy's incident. As a result of its investigation,
Internal Affairs served charges and specifications on McDonald. On July 21,
1998, Chief of Police
Ronald Lowe conducted a predisciplinary hearing on the matter. Chief Lowe
terminated McDonald on July 24, 1998.
The Fraternal Order of Police,
which is the organized labor bargaining agent for Dayton police officers, filed
two grievances on McDonald's behalf. Each grievance was submitted to an
arbitrator pursuant to a collective bargaining agreement. Regarding the first
grievance, which contested McDonald's March 18, 1998, suspension without pay,
the arbitrator found that McDonald's suspension without pay from March 18
through his termination on July 24, 1998, was improper and sustained the
grievance. The second grievance pertained to McDonald's July 24, 1998,
termination. The arbitrator found that McDonald should be reinstated effective
July 15, 1999, but without back pay, subject to certain conditions.
The City appealed the second
arbitrator's decision to reinstate McDonald, arguing that the arbitrator had
exceeded her powers. The court upheld the arbitrator's decision, and we later
affirmed. See City of Dayton v. F.O.P., Capt. John C. Post Lodge No. 44 (June
2, 2000), Montgomery App. No. 18158, unreported.
McDonald filed the action
underlying this appeal on July 21, 1999, alleging that the City, the Dayton
Police Department, and Chief Lowe had deprived McDonald of his due process
rights in violation of Title 42, Section 1983 of the United States Code. McDonald
also alleged libel and slander by Chief Lowe, both individually and in his
official capacity, and libel and slander by Rev. Raleigh Trammell, the
president of the Southern Christian Leadership Council, both individually and
in his official capacity, and reverse discrimination in violation of R.C.
4112.02 by the City and the Dayton Police Department. The trial court granted
summary judgment to all Defendants on all claims.
McDonald appeals only the trial court's grant of summary judgment on the
civil rights claims against the City and Chief Lowe. McDonald presents three
assignments of error.
The court erred in granting the motion for
summary judgment on the due process claims because the predisciplinary hearing
did not satisfy due process requirements in that the decision was predetermined
prior to the beginning of the hearing.
Summary judgment may not be granted unless the
entire record demonstrates that there is no genuine issue of material fact and
that the moving party is, on that record, entitled to judgment as a matter of
law. Civ.R. 56. The burden of showing that no genuine issue of material fact
exists is on the moving party. Harless v. Willis Day Warehousing Co. (1978), 54
Ohio St.2d 64, 375 N.E.2d 46.
In reviewing
a trial court's grant of summary judgment, an appellate court must view the
facts in a light most favorable to the party who opposed the motion. Osborne v. Lyles (1992), 63 Ohio St.3d 326,
587 N.E.2d 825. "Because a trial court's determination of summary judgment
concerns a question of law, we apply the same standard as the trial court in
our review of its disposition of the motion; in other words, our review is de
novo." Am. States Ins. Co. v. Guillermin (1996), 108 Ohio App.3d 547, 552,
671 N.E.2d 317.
McDonald's due process violation claims undergird his claims for relief
alleging a deprivation of his civil rights. In that regard, McDonald argues
that because Chief Lowe had decided to terminate him before the July 21, 1998
hearing that resulted in his termination, McDonald was deprived of his rights
of due process. Therefore, according to McDonald, the trial court erred when it
granted summary judgment for the City and Chief Lowe on McDonald's civil rights
claim for relief.
Title
42, Section 1983 of the United States Code provides a remedy for violations of
substantive rights created by the United States Constitution or federal
statute, and is limited to deprivations of those rights. Brkic v. Cleveland (1997), 124 Ohio App.3d
271, 706 N.E.2d 10. Section 1983 states:
Every
person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress.
A plaintiff
who commences a Section 1983 action must allege that some person has deprived
him of a federal right and that the person acted under color of law. Gomez v. Toledo (1980), 446 U.S. 635, 100 S.
Ct. 1920, 64 L. Ed. 2d 572.
For the purposes of Section 1983, municipalities
and other local government units may be found to have acted under color of
law. Monell v. New York City Dept. of
Social Services (1978), 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611. However,
a municipality may not be held liable on a Section 1983 claim under a theory of
respondeat superior; rather, an execution of a government's policy or custom
must inflict the injury for which the government as an entity is responsible
under Section 1983. Id. Recovery from a municipality is limited to acts that
the municipality has officially sanctioned or ordered. Brkic, supra.
The
due process clause of the Fourteenth Amendment states that no state shall
"deprive any person of life, liberty, or property without due process of
law."
A two-step analysis is used when considering a
claim that due process rights were violated. First, a court must determine
whether the claimant has a right or interest that is entitled to due process
protection. Second, if the claimant was deprived of such a right or interest,
the court must determine what process is due.
Cleveland Bd. of Educ. v. Loudermill (1985), 470 U.S. 532, 105 S. Ct.
1487, 84 L. Ed. 2d 494.
Regarding the first question, whether McDonald possessed a Fourth
Amendment property interest in continued employment with the City Police
Department, property rights "are created and their dimensions are defined
by existing 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." Leary v. Daeschner
(C.A.6 2000), 228 F.3d 729, 741 (quoting Board of Regents of State Colleges v.
Roth (1972), 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548). A contract,
such as a collective bargaining agreement, may create a property interest. Id.
McDonald possessed a property interest in his employment as a police
officer for the City of Dayton that arose from his position as a
"classified" employee pursuant to R.C. 124.11. In addition, the
collective bargaining agreement between the F.O.P. and the City established his
property right. Therefore, the first prong of the due process inquiry is
satisfied with respect to and on the basis of his deprivation of a property
interest or some right associated with it. Therefore, we next turn to the
second prong of Loudermill, what process McDonald was due.
Generally, when a plaintiff is
deprived of a protected property interest a pre-deprivation hearing of some
sort is required to satisfy the dictates of due process. Loudermill, supra. The pre-deprivation
process need not be elaborate, depending upon the importance of the interests
at stake. Id. When determining the amount of process due, a balance must be
struck between the private right in retaining the property interest, the
governmental interest in swift removal of unsatisfactory employees and
avoidance of administrative burdens, and the risk of an erroneous decision. Id.
Here,
a pre-deprivation hearing was held on July 21, 1998, before McDonald was
terminated from his position on July 24. McDonald argues that the hearing was
nevertheless insufficient to satisfy due process requirements because the
decision-maker, Chief Lowe, had determined prior to the hearing to terminate
McDonald. In other words, McDonald argues that the July 21, 1998
pre-deprivation hearing was a sham.
Though
it confers only a limited "right of reply," a pre-deprivation hearing
is designed "'to invoke the employer's discretion,' his sense of fairness
and mutual respect, his willingness to reconsider. It is not designed or
well-adapted to uncover the employer's bias or corrupt motivation." Duchesne v. Williams (C.A.6 1988), 849 F.2d
1004, 1008 (quoting Loudermill, supra). In addition, pre- deprivation hearings
do not require the kind of neutral and independent decision-maker that
independent, quasi-judicial appeals from the deprivation would require. Id.
In Wagner v. City of Memphis
(W.D.Tenn. 1997), 971 F. Supp. 308, the district court found that it was clear
from the evidence that the outcome of a police officer's pre- deprivation
hearing was predetermined, regardless of the proof presented at the hearing.
Therefore, the court found that the hearing failed to satisfy the concerns and
goals of Loudermill.
There
was evidence that Chief Lowe had condemned and repudiated McDonald's use of
pepper spray in the Wendy's incident. Also, there was evidence that Chief Lowe
and the City were under considerable public pressure to avoid such conduct,
which was alleged to arise from a racial bias and poor management. This
evidence portrays the possibility of bias. However, it does not portray a
resolve to terminate McDonald's employment that was so fixed and absolute as to
render McDonald's hearing before Chief Lowe on July 21, 1998, a sham. Wagner, supra. Therefore, no genuine issue
of material fact exists concerning whether McDonald's due process rights were
violated in that respect.
The
first assignment of error is overruled.
The court erred in finding that plaintiff's suspension without pay on March 18, 1998 was not a violation of his procedural due process rights
Focusing
on a different grounds alleged in support of his civil rights claim for relief,
the City's action discontinuing his salary during his previously-imposed
suspension after criminal charges were subsequently filed against him, McDonald
argues that the City's failure to conduct a form of hearing required by
Loudermill, supra, before it discontinued his salary violated his due process
rights.
The City responds that no
pre-deprivation hearing was required before it discontinued McDonald's salary
because he was then suspended from his position, and as his employer the City
was justified in discontinuing his salary until the criminal charges were
resolved. The City argues that the show cause hearing held one month
earlier on February 18, 1998, resulting in McDonald's suspension with pay, was
all that was required when his salary was later discontinued during the suppression.
The issue is not whether the
City was justified in discontinuing McDonald's salary but whether the loss he
suffered as a result was a deprivation of his property interests that required
a hearing. McDonald had a property interest in his salary; he had been employed
by the City as a police officer since 1986. Furthermore, the deprivation he
suffered was not a product or feature of McDonald's earlier suspension with pay
because the questions it presented concerning the criminal charges and the loss
of pay involved were not embraced by the hearing which was held when he was
suspended. Therefore, the prior February 18, 1998 hearing cannot serve to
satisfy McDonald's due process rights to a hearing on the deprivation of his
property interests in his salary that took place a month later on March 18,
1998.
The
trial court, which essentially took the same position on the lack of a
pre-deprivation hearing, found that McDonald's due process rights were
nevertheless protected by procedures following his termination on July 24,
1998. Stated otherwise, the trial court found that the measure of process that
McDonald was due with respect to the loss of his salary was afforded McDonald
by those "post- deprivation" procedures.
As
noted above, courts have traditionally balanced three factors to determine what
process is constitutionally due: "First, the private interest that will be
affected by the official action; second, the risk of an erroneous deprivation
of such interest through the procedures used, and the probable value, if any,
of additional or substitute procedural safeguards; and finally, the
Government's interest." Gilbert v. Homar (1996), 520 U.S. 924, 932-33, 117
S. Ct. 1807, 138 L. Ed. 2d 120 (quoting Mathews v. Eldridge (1976), 424 U.S.
319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18).
The
amount of post-deprivation procedures available impacts the amount of
pre-deprivation procedure required.
Leary, supra. In some cases, post-deprivation review may be sufficient
and no pre-deprivation process is required.
Gilbert, supra; FDIC v. Mallen (1987), 486 U.S. 230, 108 S. Ct. 1780,
100 L. Ed. 2d 265; Ramsey v. Bd. of Educ. (C.A.6 1988), 844 F.2d 1268.
In FDIC,
supra, a bank president who was indicted on felony charges was suspended
without a pre-deprivation hearing on the authority of a federal statute that
authorized the FDIC to suspend an indicted official of a federally insured
bank. The Court recognized the governmental interest girding the statute was to
protect the interests of depositors and maintain public confidence. See 486
U.S. 230. The Court noted that "an important governmental interest,
accompanied by a substantial assurance that the deprivation is not baseless or
unwarranted, may in limited cases demanding prompt action justify postponing
the opportunity to be heard until after the initial deprivation." id at 240. The Court found that the
independent grand jury determination of probable cause to believe that the bank
president had committed a felony was sufficient to support the bank president's
suspension before a suspension hearing was held. See id. at 240-41. The Court further emphasized that the
post-deprivation hearing took place without undue delay. See Id. at 241-42. In Gilbert, supra, the Supreme
Court built upon the FDIC precedent. There a university police officer was
arrested and charged by state police with felony drug charges. The university
immediately suspended the officer without pay, and he brought a due process
claim against the university for failure to conduct a pre-deprivation hearing.
The Court found that an employee charged with a felony could be suspended
without pay without a pre-deprivation hearing. See 520 U.S. at 933-34. The Court emphasized that temporary
suspension without pay was not as severe as termination, and therefore less
deserving of a pre-deprivation hearing, as long as the post-termination
procedure was sufficiently prompt. See
id. at 932. The court noted that fringe benefits, such as health and
life insurance, are often not affected by a suspension without pay. Id.
Taken
together, these cases present several variables that determine whether
pre-deprivation process is necessary: 1) the nature of the interest deprived
(the loss of employment versus some benefit that the employment offers); 2) the
promptness of the post-deprivation hearing; 3) the public interest to be
protected; and 4) the existence of objective corroboration of the alleged
offense leading to the administrative action. FDIC, supra; Gilbert, supra. See
also Mathews, supra. Applying these factors to the matter before us, we find
that McDonald was denied a pre- deprivation hearing.
First,
the property interest McDonald lost when he was deprived of his pay was
substantial. Although he was not terminated until July 24, 1998, a loss of pay
for more than three months is substantial, even where fringe benefits continue.
Therefore, we find that this factor weighs in McDonald's favor.
Regarding the second factor, the promptness of the post-deprivation
hearing, the trial court found that the labor arbitration procedure that
McDonald invoked under the collective bargaining agreement between the FOP and
the City amounted to effective post-deprivation relief. However, the
requirements of procedural due process are not necessarily satisfied by a
post-deprivation hearing of a public employee.
Ohio Assn. Of Public School Emp., AFSCME, AFL-CIO v. Lakewood City
School Dist. Bd. of Edn. (1994), 68 Ohio St.3d 175, 624 N.E.2d 1043. An
arbitration hearing may be sufficient to satisfy due process if the grieving
party is provided "meaningful opportunity to challenge the adverse
evidence." Id. at 179. Nevertheless, the post-deprivation hearing must be
sufficiently prompt. See Gilbert,
supra; FDIC, supra.
Here, the arbitration proceeding
regarding McDonald's first grievance, his suspension without pay from March 18
through July 24, 1998, continued until March 12, 1999, almost a year after
McDonald was suspended without pay. Therefore, even if the arbitration
procedure amounted to a post-deprivation hearing, it was not sufficiently
prompt.
The City argues that any lack of
promptness in the arbitration proceeding should not prevent it from meeting the
requirements of due process because McDonald himself created the delay when he
sought arbitration through the FOP and its labor agreement with the City.
McDonald's alternative was a civil service appeal, but there is no reason to
believe that it would have been substantially more prompt. The argument,
which apparently found favor in the trial court, misses the point, however.
It was
the City's burden and duty to offer McDonald a prompt post-deprivation hearing
if no pre-deprivation hearing was held. It was not McDonald's burden to create
that relief himself through the prosecution of his own claim. In any event, his
options in that regard were open to him only after he was terminated from his
position on July 24, 1998, more than four months after his salary had been
discontinued during his suspension. That passage of time prevented the arbitration
from being reasonably prompt in relation to the discontinuation of his salary
on March 18, 1998, as well as the relatively simple and straightforward grounds
on which the City relied to justify that discipline. Therefore, the lack of
promptness prevents the arbitration from being a sufficient post-deprivation
proceeding for purposes of due process.
Regarding the third factor, the public interest involved, we find no
compelling public interest that required altering McDonald's paid suspension to
a suspension without pay. McDonald was not on duty when he was suspended
without pay, having been sent home with pay on February 26, 1998. While the
City might as a matter of policy not wish to pay someone whom it was
prosecuting, the damage to the public interest in continuing a suspended
employee's pay until the charges are resolved is negligible. *
The City suggests that it was
compelled by its own rules to discontinue McDonald's salary after the criminal
charges were filed. The record does not support that claim. No rule or
regulation of the City or its Police Department imposed such a requirement.
Indeed, the arbitrator found that other Dayton police officers charged with
misdemeanor criminal offenses have been suspended with pay, consistently.
The fact that McDonald's alleged violations arose from performance of his
official duties instead of from private conduct may present a difference, but
not one that permits the City to wholly dispense with the required hearing.
Finally, McDonald also carries the fourth factor, the lack of objective
corroboration of the alleged offense leading to the administrative action. The
cause of the suspension was the filing of criminal charges, but the charges
were founded on a criminal complaint filed by the City of Dayton, McDonald's
employer, not by an independent agency or in the form of an indictment by a
grand jury. We find that the City's filing of misdemeanor charges against
McDonald does not amount to the kind of objective determination that were found
in FDIC and Gilbert to corroborate the actions taken.
The
distinction between the misdemeanor charges brought by the City in this case
and felony charges in Gilbert and FDIC is significant, not because of the
seriousness of the crime charged but because of the procedure used to bring the
charges. In Gilbert, the employee was arrested pursuant to a probable cause
determination and charged with a felony by the state police. In FDIC, a grand
jury indicted the bank president. Here, the charges were brought by the City of
Dayton, the same agency that imposed McDonald's suspension without pay as a
result. See R.C. 1901.34(A). While a
special prosecutor brought the charges on behalf of the City, it can hardly be
said that this action amounts to an independent determination. See Gilbert, 520 U.S., at 924.
It may be that a pre-deprivation
hearing would have had little effect in avoiding McDonald's suspension without
pay on May 18, 1998. The criminal charges filed against McDonald, though they
were brought by the same agency that suspended him, were nevertheless an
objective fact the existence of which was beyond dispute. Applying the second
prong of Gilbert v. Homar, supra, there was little if any "risk of an
erroneous deprivation," at least to the extent that the deprivation turned
on the fact that criminal charges had been filed. However, we believe that view
both defines the issue too narrowly and imposes an unduly restrictive value on
the hearing that McDonald was denied. He was entitled to that forum to invoke
Chief Lowe's discretion, his sense of fairness and mutual respect, and his
willingness to reconsider. Loudermill,
supra. None of those considerations are avoided because the factual basis of a
deprivation is undisputed. Indeed, the outcome of the subsequent criminal
prosecution might indicate that a hearing could have been productive for
McDonald. The lack of any precedent to impose that discipline may also have
worked in McDonald's favor had a hearing been held.
We find, for the reasons stated
above, that reasonable minds could find that the City of Dayton violated rights
afforded McDonald by the due process clause of the Fourteenth Amendment when it
failed to conduct a pre-deprivation hearing before it discontinued McDonald's
pay during his continuing suspension on May 18, 1998. Subsequent proceedings
before the arbitrator that resulted in back pay for this deprivation were not
an effective substitute.
McDonald v. City of West Branch (1984), 466 U.S. 284, 104 S. Ct. 1799,
80 L. Ed. 2d 302. Therefore, the trial court erred when it granted summary
judgment for the City on McDonald's civil rights claims for relief.
The
second assignment of error is sustained.
The court erred in finding that the city's failure to reinstate plaintiff immediately after the arbitration award, and placing him in the status of leave without pay was not a violation of plaintiff's procedural due process rights.
McDonald argues that the City should have reinstated him on July 15, 1999, the date ordered by the second arbitrator. Instead, the City sought judicial review in the court of common pleas, which upheld the arbitrator's decision. The City then sought review of the trial court's decision by this court, and we too upheld the decision. See City of Dayton, supra.
R.C.
2711.10 allows for an appeal of an arbitrator's decision on narrow grounds. The
City sought judicial review of the arbitrator's decision pursuant to R.C.
2711.10(D), which states that the court of common pleas may vacate an
arbitration award if "the arbitrators exceeded their powers, or so
imperfectly executed them that a mutual, final, and definite award upon the
subject matter submitted was not made." Specifically, the City contested
the arbitrator's decision that the level of discipline imposed upon McDonald
was excessive.
Due process claims look not to
the result that was reached but to the process that was followed, and whether
that process denied the claimant to some right to which he was entitled.
McDonald's right to reinstatement arising from the arbitrator's decision was a
benefit that was subject to the right afforded the City of Dayton by R.C.
2711.10 to pursue an appeal. The fact that the City's attack on the
arbitrator's decision was unsuccessful does not demonstrate a due process
violation.
The
third assignment of error is overruled.
Having sustained the second assignment of error,
we will overrule the summary judgment of the trial court and remand this matter
to the trial court for further proceedings consistent with this opinion.
FAIN, J., concurs.
* We note that in a recent
instance the City of Cincinnati continued the salary of an officer who was
likewise charged with misdemeanor offenses, but which arose from a far more
grave situation in which an arrestee was shot and killed, while those charges
were pending.
BROGAN, J, concurring in part and dissenting in
part:
I
concur in part and dissent in part from the majority opinion. I agree with the
City's position that the February 18, 1998 "show cause" hearing
provided appellant with an adequate suspension hearing. The fact that the City
waited until criminal charges were filed to suspend appellant without pay did
not mean appellant was not provided an adequate pre-deprivation hearing. The
criminal charges involved the same events which prompted the "show
cause" hearing.
In
Gilbert v. Homar, the Supreme Court recognized that a police officer who was
suspended had a significant private interest in the uninterrupted receipt of his
paycheck. The Court recognized on the other side of the balance that the State
has a significant interest in immediately suspending, when felony charges are
filed against them, employees who occupy positions of great public trust and
high public visibility, such as police officers. Justice Scalia wrote on behalf
of the Supreme Court:
Respondent contends that this interest in maintaining public confidence could have been accommodated by suspending him with pay until he had a hearing. We think, however, that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense. If his services to the government are no longer useful once the felony charge has been filed, the Constitution does not require the government to bear the added expense of hiring a replacement while still paying him. ESU's interest in preserving public confidence in its police force is at least as significant as the State's interest in preserving the integrity of the sport of horse racing, see Barry v. Barchi, supra, at 64, an interest we "deemed sufficiently important . . . to justify a brief period of suspension prior to affording the suspended trainer a hearing," Mallen, 486 U.S., at 241.
The
Supreme Court noted in Gilbert v. Homar that the purpose of any presuspension
hearing would be to assure that there are reasonable grounds to support the
suspension without pay. The court noted that the reasonable grounds were
assured by the arrest of the police officer and the filing of the criminal charges. 520 U.S. at 934. Appellant was provided an adequately prompt
post-suspension hearing after the criminal charges were resolved. I would
overrule the appellant's second assignment of error and affirm the trial
court's grant of summary judgment.
In all
other respects I concur with the majority opinion.
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