Two Steps to Due Process: 9/12/2016. NMARC/ASMCRA 4 th Annual Conference. What Process is Due? A Look

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1 NMARC/ASMCRA 4 th Annual Conference What Process is Due? A Look at Due Process in the Public Sector Ryan Fantuzzi Kirk, Huth, Lange & Badalamenti, PLC Hall Road, Suite 100 Clinton Township, MI (586) Section 1 of the 14 th Amendment to the U.S. Constitution... nor shall any State deprive any person of life, liberty, or property without due process of law; Two Steps to Due Process: 1. Identify the interest (life, liberty, or property). 2. Determine what process is due. 1

2 Mathews v Eldridge 1 Balancing Test 1. Private interests to be affected by the official action 2. Governmental interest, including the burden the government would face providing additional process 3. The risk of error using procedures contemplated and probable value, if any, of using additional procedural safeguards US 319 (1976) Three Factors 1. Private interest 2. Governmental interest 3. Risk of error Mathews v Eldridge Balancing Test Meh, I had a good run Origins in the Magna Carta 1215 A.D. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land. 2

3 Power Sources for Procedural Due Process Protections (1) Property Interest (2) Liberty Interest (3) Deprivation of Life Property Interest Defined Legitimate Claim of Entitlement to Continued Employment Just Cause vs At Will Dismissal only for misfeasance, malfeasance, nonfeasance Tenure Liberty Interest Defined Denies one the freedom to take advantage of other employment opportunities. Injury to reputation, good name, honor or integrity. 3

4 Liberty Interest Elements False Statement Stigmatizing Accompanying an employee s discharge by government employer Public Statement Liberty Interest? Inadequate performance? NO Theft? YES Advancing mileage of plow truck? YES Engaging in dysfunctional behavior? NO Creepy NO Step Two: Determine What Process is Due Procedural Requirements of Due Process The right to be heard at a meaningful time and in a meaningful way. 4

5 Step Two: Determine What Process is Due Cleveland Board of Education v Loudermill, 470 US 532 (1985). Applying the Mathews balancing test: Private interest in retaining employment. Value of hearing the individual s view of facts. Only meaningful time to invoke the discretion of the decision maker. No significant administrative burden on Government. Step Two: Determine What Process is Due Cleveland Board of Education v Loudermill, 470 US 532 (1985). Nature of what is provided before depends on the degree of due process after termination. An initial check against mistaken conclusions. Cleveland Board of Education v Loudermill, 470 US 532 (1985). No neutral decision maker if post termination procedures are available. Oral or written notice of charges. Explanation of evidence. Opportunity to present their side. 5

6 You have to answer for Santino, Carlo. Initial Check Against Mistaken Conclusions 1. Oral or written charges against him (timing important) 2. Explanation of employer s evidence 3. Opportunity to respond to present his side of the story (Neutral decision maker not required if provided in posttermination hearing) Practical Suggestions: Differentiate between Investigatory Interview and Pre termination Hearing. While not required, charges in writing are preferred. Charges should have sufficient specificity to provide real notice (dates, times, locations). Charges should be provided sufficiently in advance to permit a proper response. Practical Suggestions (cont d): Decision maker should take time for reflection after Loudermill hearing. Decision should be made after Loudermill hearing. 6

7 Due Process and Investigative Suspensions Suspensions without Pay Suspensions with Pay Due Process Post Termination Requirements Right to attend a hearing. Have counsel. Call witnesses and produce evidence. Know and challenge evidence against employee. Neutral decision maker. Due Process Post Termination Requirements Neutral Decision Maker: An accused employee may make due process claim based upon bias, lack of impartiality or conflict of interest. Can the decision maker judge fairly on the facts presented? A personal or financial stake in the outcome disqualifies the decision maker. Hortonville School District No. 1 v Hortonville EA, 426 US 482 (1976) 7

8 Due Process Post Termination Requirements Know and Challenge Evidence Access to documentary evidence, including video and audio recordings. Right to Confront and Cross Examine Witnesses. Right to Witness Identities. Right to Witness Statements. Due Process as an Element of Just Cause Six Requirements of Industrial Due Process: Timely Action Fair Investigation Precise Statement of Charges Chance for Employee to explain No Double Jeopardy Right to Union Representation Discipline and Discharge in Arbitration, Brand, Final Take Aways To Avoid Due Process Issues Provide specificity in charges Suspend initially with pay Use arbitration 8

9 NMARC/ASMCRA 4 th Annual Conference What Process is Due? A Look at Due Process in the Public Sector Ryan Fantuzzi Kirk, Huth, Lange & Badalamenti, PLC Hall Road, Suite 100 Clinton Township, MI (586)