By Roger D. Overholt, Chief of Police, Morristown, Tennessee; Melvin L. Tucker, Chief of Police (Retired), Tallahassee, Florida; and Lieutenant Chris Wisecarver, Training Officer, Morristown, Tennessee, Police Department
he Department of Commerce’s Statistical Abstract of the United States (1991) reports that 18 million persons are employed in 82,000 governmental organizations at the local, state, and federal levels.1 Meaningful, effective, procedural due-process protections for these employees create a feeling of fairness in the workplace; promote confidence and positive morale; breed an environment of collegiality, efficiency, and esprit de corps; and prevent demoralization of valuable employees as well as abusive management conduct. The result is that the public employer and the general public are also better served when procedural due-process protections are provided.2
The Fifth and Fourteenth Amendments of the U.S. Constitution both address the right of all citizens to due process. The Fifth Amendment has an explicit requirement that the federal government not deprive any individual of life, liberty, or property without the due process of law. The Fourteenth Amendment explicitly prohibits states from violating an individual’s rights of due process and equal protection.
Due-process protection requires that employees have a fair procedural process before they are terminated if the termination is related to a liberty or property interest. Thus, the threshold question that must be answered before procedural due-process rights are triggered is whether a liberty or property interest is at risk.
A property interest in a job is created when an employee has a reasonable expectation of continued employment. Property interests are not created by the Constitution but rather by existing rules or understandings that stem from an independent source such as state law.3 The following can create this expectation:
- A collective-bargaining agreement that requires the employer to have just cause or an articulable reason to discipline an employee
- A government ordinance or charter that requires just cause for discipline
- An employer operations manual that requires just cause for discipline
- A civil-service rule that requires just cause for discipline
- A state or federal statute that requires just cause for discipline
- Any oral promises that could create a reasonable expectation of continued employment4
- The employer’s past practice and custom of requiring just cause even though not required by law, ordinance, operation manual, or oral statement5
The court in Baldwin v. Sisters of Providence defined just cause as “honest cause or reason, regulated by good faith on the part of the party exercising the power.”6 A discharge for just cause is one that is not for any arbitrary, capricious, or illegal reason and that is based on facts both supported by substantial evidence and reasonably believed by the employer to be true.
Just cause, justifiable cause, proper cause, obvious cause, and cause are often-used terms that all mean the same thing: they exclude discharge for mere whim or caprice.7
A liberty interest is created when the disciplinary action taken has the effect of making it likely that the employee will be unable to continue in the profession in the future.8 For example, a police officer terminated for an offense that would result in the revocation of the officer’s state certification would find it impossible to obtain another police officer position in a different department in that state because certification was revoked.
The employment-at-will doctrine, simply stated, says that either party may terminate at any time any employment relationship that is not in writing and is for an indefinite period of time, for any reason or no reason at all.9 Generally, police chiefs, fire chiefs, appointed sheriffs, part-time employees, probationary employees, and reserve officers are not afforded due process, as they are considered at-will employees. However, federal statutes (see the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Age Discrimination in Employment Act of 1988 as examples) and many states provide protections to employees from discriminatory practices. Of course, any termination of an at-will employee contrary to a state or federal statute is illegal. In addition, several states (California, Connecticut, Delaware, Florida, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Michigan, New Hampshire, New York, Oklahoma, Oregon, Rhode Island, Texas, Washington, and Wisconsin, and possibly others) have statutes to protect employees from retaliation for reporting management wrongdoing, that is, whistleblowing.
Historical Determination of Just Cause
Courts have generally agreed that the issue of whether or not the reasons asserted for an adverse employment action constitute just cause is a question of fact that should be left for the jury to decide.10 Although a matter for the jury, employment lawyers, scholars, and arbitrators have been attempting to identify the standards for the determination of just cause over the past 30 years. In the appendix to a 1966 arbitration decision, arbitrator Carroll R. Daugherty first articulated the factors that have in employment literature since then been called the seven tests of just cause.11 Daugherty asked the following seven questions:
- Did the employer provide the employee forewarning or foreknowledge of the possible or probable consequences of the employee’s conduct?
- Was the employer’s rule or managerial order reasonably related to
- the orderly, efficient, and safe operation of the employer’s business and
- the performance that the company might properly expect of the employee?
- Did the employer, before administering discipline to the employee, make an effort to discover whether the employee did in fact violate a rule or order of the employer’s management?
- Was the employer’s investigation conducted fairly and objectively?
- At the investigation, did the judge obtain substantial evidence or proof that the employee was guilty as charged?
- Did the employer apply its rules, orders, and penalties evenhandedly and without discrimination to all employees?
- Was the degree of discipline administered by the employer in a particular case reasonably related to
- the seriousness of the employee’s proven offense and
- the record of the employee in service with the employer?
Daugherty’s decision explained that an answer of no to any one or more of the seven questions normally signifies that just and proper cause did not exist.
The U.S. Supreme Court, in the 1987 case of United Paperworkers Union, AFL-CIO, et al. v. Misco, Inc., provided eight tests for the determination of just cause as follows:
- Was the employee’s position reasonable?
- Was notice given to the employee?
- What was the timing of the investigation?
- Was the fairness of the investigation considered?
- What was the evidence against the employee?
- Was there a possibility of discrimination?
- Was the nature of the offense considered?
- Was the employee’s past record considered?12
Contemporary Determination of Just Cause
In determining today whether an employee was properly discharged and whether the discharge was supported by the required just cause, the following criteria for just cause are likely to be considered:13
Have the charges against the officer been factually proven? Courts and arbitrators across the United States have utilized a variety of standards of proof in analyzing disciplinary decisions, varying from preponderance of the evidence in actions less than discharge to the higher standard of clear and convincing evidence in discharge cases, to proof beyond a reasonable doubt in cases that involve criminal allegations. However, the proof generally required, in cases involving the revocation of a professional license, is the standard of clear and convincing evidence.14 In cases involving the termination of a career service employee, the standard of preponderance of evidence is normally applied.15 In the termination of an employee not involving the loss of license or the protection of career service, the standard of proof required must be supported by competent, substantial evidence.16
Was the punishment imposed by the employer disproportionately severe under all circumstances? Although there is no universally accepted protocol for the determination of the appropriateness of punishment, the U.S. Merit Systems Protection Board (MSPB), in the case of Douglas v. Veterans Administration,17 provided the following factors for consideration in determining the appropriateness of punishment:
- The nature and seriousness of the offense and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional, technical, or inadvertent; was committed maliciously or for gain; or was frequently repeated
- The employee’s job level and type of employment, including supervisory role, contacts with the public, and prominence of the position
- The employee’s past disciplinary record
- The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability
- The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect on the supervisor’s confidence in the employee’s ability to perform
- The consistency of the penalty with those imposed on other employees for the same or similar offenses
- The impact of the penalty on the agency’s reputation
- The notoriety of the offense or its impact on the agency’s reputation
- The clarity with which the employee was aware of any rules that were violated in committing the offense or had been warned about the conduct in question
- The potential for the employee’s rehabilitation
- The presence of mitigating circumstances surrounding the offense, such as unusual job tension, personality problems, mental impairment, harassment or bad faith, or malice or provocation on the part of others involved in the matter
- The adequacy and effectiveness of alternative sanctions to deter such conduct in the future
Did the employer conduct a thorough investigation into the incident? The investigation should, at the minimum, include examining all investigatory leads and interviewing all witnesses.18
Were other employees who engaged in conduct similar or identical to that of the officer treated as harshly by the employer? Commonly referred to as the disparate treatment defense, this question focuses on the employer’s preexisting pattern of discipline imposed in identical or similar cases.
Was the officer’s misconduct the product of action or inaction by the employer? Any claims that the employee was inadequately trained and therefore could not perform the assigned ask satisfactorily, or a supervisor ordered the employee to perform the act or contributed to the employee’s misconduct by not previously enforcing the rules, can affect a ruling of just cause.
Did the employer take into consideration the officer’s good or exemplary work history? Generally speaking, the longer the work history and the higher the work performance evaluations, the less the punishment.
Did the employer take into consideration mitigating circumstances? For example, was the employee suffering from a physical ailment at the time of the misconduct, or was the employee provoked into committing the misconduct?
Was the officer subjected to progressive or corrective discipline? The theory of progressive discipline is that punishment should occur in ever-increasing severity to modify behavior. Corrective discipline is based on the theory that an employee may not know how to perform the job tasks properly (perhaps due to inadequate training) and that punishment will not result in the ability to perform the tasks.
Was the employer motivated by antiunion bias?This defense is raised most frequently when the disciplined employee is an active member in a labor organization or is attempting to garner support for a labor organization or when there has been a poor working relationship between a labor organization and the employer.
Are the employer’s rules clear and understandable? A rule should not be open to more than one reasonable interpretation.In addition, all rules should be widely disseminated to ensure that all employees are aware of the behavior expected of them in the workplace. Rules that seem broad, such as those that forbid the use of excessive force or obscene language are enforceable if the employer can show that the rule is readily comprehensible to the average employee in the organization.19
Is the officer likely to engage in similar misconduct in the future? In cases of termination, arbitrators and judges will often consider whether the employee would be likely to repeat the offense or whether the conduct was an aberration from the employee’s normal conduct.20
Was the officer accorded procedural due process in the disciplinary investigation? Essentially, procedural due process requires that a meaningful opportunity to be heard must be afforded to public employees who have a property or liberty interest in their employment. What is the process that is due an employee? The courts generally apply a three-part balancing test.21 The factors balanced include the employee’s interest in retaining the job, the employer’s interest in the expeditious removal of an unsatisfactory employee and the avoidance of administrative burdens, and the risk of an erroneous decision.22
The Fifth and Fourteenth Amendments to the U.S. Constitution provide for due-process protection for employees accused of employment rule violations. Due-process procedures benefit not only employees but also employers and the public.
The requirement for due process is triggered through an expectation of continued employment (property interest) or when employees are unlikely to be able to continue in their profession because of the disciplinary action (liberty interest).
The determination of whether individuals are entitled to due process through a property interest in their jobs is generally made through the concept of just cause. Just cause means essentially that employees cannot be discharged from their jobs for mere whim or caprice. What constitutes just cause has been developed over the past 30 years from numerous arbitration and court decisions. Today, a set of established questions must be answered in the affirmative before a discharge can be classified as appropriate.¦
1U.S. Department of Commerce, Bureau of the Census, Statistical Abstract of the United States: 1991, 111th ed. (Washington, D.C.: U.S. Government Printing Office, 1991), http://www2.census.gov/prod2/statcomp/documents/1991-01.pdf (accessed November 30, 2007).
2J. Michael McGuinness, Procedural Due Process Rights of Public Employees: Basic Rules and a Proposal for Return to Structured Due Process, Seminar Handbook in the 12th Annual Section 1983 Civil Rights Litigation, Practicing Law Institute (November 1996), 3–4.
3Board of Regents v. Roth, 408 U.S. 564, 576–78 (1972).
4Will Aitchison, The Rights of Law Enforcement Officers, 2nd ed. (Portland, Ore.: Labor Relations Information System, 1992), 96.
5Perry v. Sinderman, 408 U.S. 593 (1972).
6Baldwin v. Sisters of Providence, 769 P.2d 298 (Wash. 1989).
7Frank Elkouri and Edna Asper Elkouri, How Arbitration Works, 5th ed. (Washington, D.C.: BNA, 1997), 887.
8Aitchison, The Rights of Law Enforcement Officers, 99.Wilder v. Cody County Chamber of Commerce, 868 P.2d 211, 217 (Wyo. 1994).
10Boothby v. Texon, 608 N.E. 2d 1028 (Mass. 1993); Lee-Wright v. Hall, 840 S.W. 2d 572 (Tex. App. 1992); Renny v. Port Huron, 398 N.W. 2d 327 (Mich. 1986).
11Enterprise Wire Co. v. Enterprise Independent Union, 46 Lab. Arb. Rep. (BNA) 359 (Carroll R. Daugherty, Arb. 1966).
12United Paperworkers International Union, AFL-CIO, et al. v. Misco, Inc., 484 U.S. 29 (1987).
13Will Aitchison, “Just Cause for Discipline,” in The Rights of Law Enforcement Officers, 3rd ed. (Portland, Ore.: Labor Relations Information System, 1996).
14Ferris v. Turlington, 510 So. 2d 292; 12 Fla. Law W. 393 (1987).
15Florida Dept. of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414–415 (Fla. 4th DCA 1974).
16State Dept. of General Services v. English, 534 So. 2d 726, 729 (Fla. 1st DCA 1988).
17Douglas v. Veterans Administration, 5 M.S.P.B. 313, 329–32 (1981).
18Oklahoma City, Oklahoma v. Lodge 123 Fraternal Order of Police, 100 Lab. Arb. Rep. (BNA) 1183 (Woolf, 1993).
19Alston v. New York City Transit Authority, 588 N.Y.S. 2d 418 (A.D. 1992).
20County of Erie, LAIG 2630 (1988).
21See Mathews v. Eldridge, 424 U.S. 319 (1976).
22See Garraghty v. Virginia Dept. of Corrections, 52 F.3d 1274, 1282 (4th Cir. 1995).