LOUDERMILL RIGHTS OF PUBLIC EMPLOYEES TO A PRE-TERMINATION HEARING

In a decision announcing a Constitutional right for public employees not possessed by private employees, the Supreme Court in Cleveland Board of Education v. Loudermill held that most public employees are entitled to a hearing before they are discharged. However, the “hearing” is not a full evidentiary hearing and need not include the opportunity to cross-examine your accusers. All that is required is:

      1. Oral or written notice of the charges and time for hearing;

      2. An explanation of the employee’s evidence; and

      3. An opportunity to present “his side of the story.”

In this case, James Loudermill stated on his application for employment with the Cleveland Board of Education that he had never been convicted for a felony. After hiring him as a security guard, the personnel board discovered that he had been convicted for grand larceny and – without further consideration or due process – fired him for providing false information on his application. Since Loudermill qualified as a “classified civil servant” under Ohio law, he obtained a property right to his employment, which meant he could only be dismissed for cause and could obtain an administrative review of the causes for his termination. The Cleveland Civil Service Commission granted him an administrative review after his termination and found it valid.  Loudermill filed suit in District Court alleging that the review system was unconstitutional because it only allowed him to respond to the charges against him after his termination. He argued that the board removed his property without giving him a chance to defend himself in violation of his right to Due Process under the Fourteenth Amendment. The District Court agreed that the Ohio statute gave Loudermill a property right to his job, but ruled that the board did not violate his due process rights because it followed the procedures specified by the same statute for removing the property right.

The Ohio statute clearly grants civil servants property rights to their employment. In order to lawfully remove this property, the Due Process Clause requires a procedure that carefully weighs the interests of the government in removing the property against the interests of the private party in retaining the property. This procedure must incorporate the “essential requirements of due process,” which “are notice and an opportunity to respond.” The court determined that there was no strong reason to delay the opportunity to respond until after termination. The Court found that “affording the employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays.” Accordingly, the significant interests of the employees to retain their jobs outweighed the interests of the state to remove employees quickly.

John Joseph Zodrow handled thousands of employment cases involving union and non-union worked in the public sector during his career.  He authored the book “Postal Service Labor Relations” and has been published in prominent journals and law reviews thirty times or more.  Mr. Zodrow warns the reader to seeks the assistance of a qualified employment representative or lawyer for more information. 

Addendum: In a similar case, Richard Donnelly alleged that post-dismissal hearings violated his due process rights. The Court of Appeals for the Sixth Circuit heard both cases together and ruled that the board violated both defendants’ due process rights by removing their property rights to employment before providing an opportunity for them to respond to charges against them. It is important to note that, since the issuance of the Loudermill decision, the lower courts have strictly limited the remedy for Loudermill violations. Specifically, an employee deprived of his Loudermill rights is not entitled to reinstatement if the employer can prove that there was just cause for the discharge in any case.

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