By Karen J. Kruger, Senior Assistant County Attorney, Legal Advisor to the Sheriff of Harford County, Maryland
n 1985 the U.S. Supreme Court decided a case that set standards for government agencies contemplating the termination of an employee. The case, Cleveland Board of Education v. Loudermill, examined the Fourteenth Amendment due-process rights of public employees and recognized that those rights may be characterized as either “property” or “liberty” rights.1 On December 10, 2007, the U.S. Supreme Court2 denied review of a decision made by the U.S. Court of Appeals for the Fourth Circuit that examined the “liberty” rights of a probationary police officer.3
In May 2002, the Newport News Police Department hired Christopher Sciolino as a police officer, and he began an 18-month probationary period during which he was not entitled to any departmental grievance rights. In June 2003 the department became aware of an allegation that Officer Sciolino had advanced by 10,000 miles the odometer reading on his police cruiser, supposedly in an attempt to get a new car issued to him. Upon hearing this allegation, the acting chief of police assigned Sciolino to administrative duties. Although Sciolino denied the allegations, in September the chief of police terminated his employment by letter, in which he accused him of deliberately destroying city property by advancing the odometer. The police department did not offer to Sciolino any type of hearing in which he could have contested the allegations or cleared his name.
In June 2004, Sciolino sued the City of Newport News and the police chief under Title 42 Section 1983, alleging that the department placed the termination letter—containing the false information—in his personnel file, thus violating his liberty rights without due process of law. Sciolino contended that by placing false charges in his personnel file, which “may be available” to prospective employers, the City of Newport News deprived him of his Fourteenth Amendment liberty interests—in his reputation and his ability to obtain future employment—without granting him a name-clearing hearing.
Sciolino was a probationary employee who had no protected “property” interest in his employment with the City of Newport News. However, he did have due-process rights that prevent a public employer from depriving him, and any probationary employee, of his “freedom to take advantage of other employment opportunities.” 4 The due-process clause of the Fourteenth Amendment provides that a “liberty interest is implicated by public announcement of reasons for an employee’s discharge.”5
This type of claim is based on the combination of two distinct rights protected by the Fourteenth Amendment: (1) the liberty “to engage in any of the common occupations of life,”6 and (2) the right to due process “[w]here a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”7 To state this type of liberty interest claim under the due-process clause, a plaintiff must allege that the charges against him (1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false.8
To respect a probationary employee’s liberty rights, the employer should provide the employee with some due process before terminating employment. The U.S. Supreme Court has instructed that some form of a hearing is required before the government may finally deprive an individual of a property interest.9 The essential, fundamental requirement is that the employee be provided with an opportunity to be heard at a meaningful time and in a meaningful manner.
The Sciolino court indicated that the Mathews scheme could also be used to evaluate whether the City of Newport News had afforded Officer Sciolino with sufficient due process, even though it also recognized that the officer did not have a protected property interest.10 The letter written by the chief of police stated, “On September 16, 2003, I met with you in accordance with City Policy to provide you the opportunity to respond to the allegation against you. . . .”11 However, the court could not decide this aspect of the case here because, procedurally, “[t]he record in this case is not sufficiently developed to make this sort of evaluation.”12
Beyond the Probationary Employee
It is quite clear from this case that “[a] public employer who fires (or refuses to rehire) an employee in a manner that sullies the employee’s good name and restricts his future employment opportunities deprives him of important liberty interests protected by the Fourteenth Amendment.” 13 But what if the public employer imposes on an employee punitive, disciplinary action less than termination?
The question must first be examined by considering the status of the employee. Employees who have successfully completed entry-level probation have earned a property right in their employment, and that right may not be infringed by the employer without due process.14 However, law enforcement organizations often employ high-ranking officials who serve “at the pleasure” of the chief law enforcement officer or the employing government as members of a command staff.15 Likewise, when an agency promotes a tenured officer to a supervisory rank, it commonly imposes a period of promotional probation.
In each of these situations, the law enforcement agency retains the right to demote the appointed officer based on unfavorable performance assessments. When, if ever, would such unfavorable assessments infringe on the individual’s liberty interest so as to require some kind of due process?
In the Sciolino case, the court noted the U.S. Supreme Court’s recognition of a due-process right “[w]here [one’s] good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”16 However, due process protections in the “at-will” context apply only (1) where a government employer has made public allegedly false statements that stigmatize the employee and (2) where the agency has imposed a termination from employment or a significant demotion.17
If the reasons given by the law enforcement agency for demotion in this situation are related merely to the employee’s incompetence or inadequate performance or simply describe that the employee is unsuitable for the position, no liberty interest is implicated. These special due-process protections arise only where the allegations made by the employer imply that the employee bears serious character defects such as dishonesty or immorality.18 As one court described it, “[t]o implicate a constitutionally protected liberty interest, defamatory statements must at least imply the existence of serious character defects such as dishonesty or immorality, that might seriously damage [the employee’s] standing and associations in his community or foreclose his freedom to take advantage of other employment opportunities.”19
If there is no termination from employment, generally “there is no claim for deprivation of a protected liberty interest, despite evidence of stigmatizing behavior by [government] officials.”20 But, if the damage to one’s reputation or good name is accompanied by the loss of a tangible employment benefit, such as that imposed by a significant demotion, a liberty claim may lie.21 A demotion is “significant” only if it is the practical equivalent of a loss of employment.22
Whether a public employee is entitled to a “name-clearing” hearing depends on a particular situation, but such situations certainly arise only when the agency is contemplating employment termination or a significant demotion; when the action is based on or made in conjunction with stigmatizing allegations of misconduct that imply dishonesty, corruption, or immorality; and when the charges are made public or are likely to be disseminated.23
At the same time, the U.S. Supreme Court has recognized that the U.S. Constitution does not and should not “penalize forthright and truthful communication between employer and employee”24 and “that a purely private communication of the reasons for an employee’s termination cannot form the basis for a due process claim. . . .”25 As a result, law enforcement leaders may better appreciate their lawyer’s advice not to divulge to the media the reasons underlying personnel actions. ■
The author appreciates the assistance of Michael F. Conti, associate legal counsel, Baltimore Police Department, in the preparation of this column.
1Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 541 (1985). This column does not address the “property” right embodied in the Fourteenth Amendment.
2City of Newport News v. Sciolino, 76 U.S.L.W. 3303 (U.S. Dec. 10, 2007), cert. denied, 2007 LEXIS 13055 (Dec. 10, 2007).
3Sciolino v. City of Newport News, 480 F.3d 642 (4th Cir. 2007).
4Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972); Sciolino, 480 F.3d at 646.
5Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990).
6Roth, 408 U.S. at 572 (quoting Meyer v. Nebraska, 262 U.S. 390, 399 ).
7Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).
8Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 173 n. 5 (4th Cir. 1988).
9Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (setting out a three-part test to determine whether the procedural due process provided meets constitutional standards; for purposes of determining the constitutional adequacy of administrative procedures, identification of the specific dictates of due process generally requires consideration of three distinct factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail).
10Sciolino, 480 F.3d at 646, n. 1.
13Id. at 649, citing Roth, 408 U.S. at 573.
14Roth, 408 U.S. 576–77 (tenured public employees are entitled to both know and challenge reasons for dismissal).
15See, for example, Public Local Laws of Maryland, Art. 4, §16–17(3) (police commissioner authorized to appoint members of command staff “to serve at his pleasure”).
16Sciolino, 480 F.3d at 646, quoting Constantineau at 437.
17Paul v. Davis, 424 U.S. 693, 701 (1976) (publication of stigmatizing charges alone, without damage to “tangible interests such as employment,” does not invoke the due-process clause).
18Wojcik v. Mass. State Lottery Comm’n, 300 F.3d 92, 103 (1st Cir. 2002); Luy v. Baltimore Police Department, 326 F. Supp. 2d 682, 690 (D. Md. 2004); Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir. 1982) (allegations of incompetence do not require name-clearing hearing).
19Zepp v. Rehrmann, 79 F.3d 381, 388 (4th Cir. 1996), quoting Robertson at 1092 and Roth at 573.
20Patton v. Holland, 1996 WL 7970, *4 n. 2 (4th Cir. 1996).
21Sciolino, 480 F.3d at 646, citing Stone v. Univ. of Md. Med. Sys., 855 F.2d 167, 172, n. 5 (4th Cir. 1988).
22Moore v. Otero, 557 F.2d 435, 438 (5th Cir. 1977) (no liberty interest where an agency demoted a corporal to patrol officer). See also Ridpath v. Board of Governors, 447 F.3d 292, 309 (4th Cir. 2006) (demotion that removed plaintiff from his chosen profession was “significant” as functional equivalent to outright discharge); and Johnson, 903 F.2d at 997–99 (transfer within agency from one position to another does not support liberty claim).
23See Johnson v. Martin, 943 F.2d 15, 16–17 (7th Cir. 1991) (liberty interest implicated only when stigmatizing statement actually disseminated to potential employer); Clark v. Mann, 562 F.2d 1104, 1116 (8th Cir. 1977) (stigmatizing statement “would be available to prospective employers”); Buxton v. City of Plant City, 871 F.2d 1037, 1045–46 (11th Cir. 1989) (presence of stigmatizing information in personnel file that was made public sufficient to trigger liberty interest); Brandt v. Bd. of Coop. Educ. Servs., 820 F.2d 41, 44–45 (2d Cir. 1987) (public disclosure includes personnel file that is “likely to be disclosed to prospective employers”).
24Bishop v. Wood, 426 U.S. 341, 350 (1976).
25Sciolino, 480 F.3d at 647, citing Bishop at 348–49.