Due Process and the Peace Officer Bill of

Due Process and the Peace Officer Bill of Rights Justin Pierce, Pierce Coleman PLLC Luis Santaella, City of Scottsdale John Thomas, Government Affairs Procedural Due Process Notice Opportunity to be heard

When Does A Property Interest Exist? Courts look to state and local law Key question is whether the governments conduct gave rise to a legitimate claim of entitlement to continued employment absent sufficient cause to terminate.

When Does A Property Interest Exist? Sources of property interest in employment: Statutes, ordinances, and regulations Tenure System Contracts Personnel Policies

Customs and Practices What Is Good Cause? Notice Reasonable rules & policy Investigation Proof Equal treatment Penalty is proportional to infraction

What Type of Deprivation Triggers Due Process Rights? Discharge Dem0tion Unpaid Suspensions What Does Not Trigger Due Process Rights? Lesser Discipline, e.g., verbal

counseling, written warning, performance improvement plan Paid administrative leave What Does Procedural Due Process Require? Loudermill Decision Under the Due Process Clause an individual must be given an opportunity

for a hearing before he is deprived of any significant property interest, requires some kind of hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment. [T]he pretermination hearing need not definitively resolve the propriety of the discharge, but it should be an initial check against mistaken decisionsessentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. What Does Procedural Due Process Require?

Loudermill Decision The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.

What Does Procedural Due Process Require? Pre-Deprivation Stage Adequate written notice of ALL grounds for the proposed deprivation Include factual basis for proposed action and policies relied upon

Opportunity to heard Can be informal meeting or written response Must have reasonable advance notice Does not require unbiased decisionmaker What Does Procedural Due Process Require? Pre-Deprivation Stage Adequate written notice of ALL

grounds for the proposed deprivation Include factual basis for proposed action and policies relied upon What Does Procedural Due Process Require? Pre-Deprivation Meeting

Employee must be given reasonable time to prepare Decisionmaker is usually department head or manager. Does not have to be uninvolved. Employee can respond verbally or in writing. Employer usually brings a witness or records meeting. What Does Procedural Due Process

Require? Decisonmaker advises of outcome. Written notice of specific grounds for decision Notice of appeal rights Importance of Notice: The Bait and Switch Problem Carlson v. Arizona State Personnel Board

Employer terminated supervisor for sexually harassing subordinate. Employee appealed. At appeal hearing, witness for the employer testified that the supervisors actions had also violated provisions of the Standards of Conduct that were not specifically asserted as grounds for his termination in the dismissal notice. Hearing officer concluded that supervisor did not make unwelcome advances to subordinate, but upheld termination based on: dishonesty; conflict of interest; and preferential treatment.

Importance of Notice: The Bait and Switch Problem Relying on the right resultwrong reason rationale that applies to appellate review of trial court judgments, the hearing officer concluded that due process was satisfied because the agency made the correct decision,

even if based on the wrong reason. [A] terminated employee must be provided advance notice of the specific grounds for termination so he may prepare his defense. Terminated employee may have prepared different defense if he knew of the grounds relied upon by hearing officer. Importance of Notice: The Bait and Switch Problem We conclude that the hearing officer erred by

upholding Carlsons dismissal based on conduct never alleged by ADEQ before the post-termination hearing. . . . If ADEQ wanted to rely on these additional grounds, it should have set forth with reasonable specificity the amended factual basis and the statutory grounds for its decision in its Notice of Dismissal or a supplemental notice sufficiently in advance of the post-termination hearing to allow Carlson the opportunity to prepare his defense. What Does Procedural Due Process

Require? Post-Deprivation Appeal Ample notice of hearing Disclosure of supporting evidence The opportunity to confront and cross- examine adverse witnesses The opportunity to be heard in person and present evidence and call witnesses

What Does Procedural Due Process Require? Post-Deprivation Appeal The opportunity to be represented by counsel An impartial decision maker A written statement by the decisionmaker as to the evidence relied upon and the

reasons for the determination made Arizona Peace Officer Bill Of Rights Sets forth procedural requirements for investigations, disciplinary actions, and postdeprivation appeal hearings A.R.S. 38-1101 et seq.

The good ol days Statutory Source: Arizona Peace Officer Bills of Rights A law enforcement officer is not subject to disciplinary action except for just cause. A.R.S. 38-1103. Applies to non-probationary employees

Arizona Peace Officer Bills of Rights (a) The employer informed the law enforcement officer of the possible disciplinary action resulting from the officer's conduct through agency manuals, employee handbooks, the employer's rules and regulations or other communications to the officer or the conduct was such that the officer should have reasonably known disciplinary action could occur. (b) The disciplinary action is reasonably related to the

standards of conduct for a professional law enforcement officer, the mission of the agency, the orderly, efficient or safe operation of the agency, or the officer's fitness for duty. Arizona Peace Officer Bills of Rights (c) The discipline is supported by a preponderance of evidence that the

conduct occurred. (d) The discipline is not excessive and is reasonably related to the seriousness of the offense and the officer's service record. Common Pitfalls

Required notices Investigation procedural requirements Timelines for disclosures Timelines for investigation as a whole Where are we headed?

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