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 government’s 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 • Dem 0 tion • 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 decisions—essentially, a determination of whethere 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 • supervisor’s 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 result—wrong 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 Carlson’s 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 post-deprivation 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?