LEGAL COMMENT
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Lathrop & Clark LLP
is legal counsel to
the WASB.
BY
Lathrop
&
Clark.,
any school district employees
enjoy a constitutionally protected property interest in
their employment. This property interest entitles them to
a m i n i m u m level of procedural
due process before they are
terminated or suspended without pay. In
the past it has been unclear whether suspending an employee without pay pending
the outcome of an investigation or criminal
proceeding violated the employee's due process rights. Recent court decisions, however, have addressed this issue and ruled that,
in the appropriate circumstances, such
action is permissible.
This Legal Comment will discuss these
recent case developments and the steps a
school district should take when considering whether to suspend an employee without pay during an investigation into
allegations of misconduct.
The d u e p r o c e s s clause. A procedural due
process claim has two distinct elements: a
deprivation of a constitutionally protected
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property or liberty interest and a denial
of adequate procedural protections.1
"Property" is often defined as an enforceable entitlement to continued employment
or some significant aspect of employment.
Statutory tenure provisions give certain
public employees a property interest in
their employment. Employment contracts
and collective bargaining agreements that
establish "just cause" as the standard for
termination have also generally been held
to give employees a property interest in
their employment.
Property is generally understood to
include only the economic aspects of employment. There is no recognized constitutional
right to retain or perform the functions of a
position. Thus, generally, employees who are
suspended with pay are not denied any property interest, so due process rights are not
usually implicated.
Once it is established that a property
interest is at stake, determining the adequate procedural protections is a more
complex task. Procedural due process is
a flexible concept that depends on the IHi~
JUNE 1999 WISCONSIN SCHOOL NEWS
21
~Procedural due
process is a
flexible concept
that depends on
the specific facts
of each case. ~
Legal Comment is designed to
provide authoritative general
information, w,lh commenlary,
as a service to WASB members
It should not be relied upon as
legal advice. If legal advice is
required, the services of competent legal counsel shoutd be
obtained.
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WISCONSIN
SCHOOL
specific facts of each case. Where property
interests are concerned, an employee is
almost always entitled to a predeprivation
hearing, although individual circumstances
will affect how elaborate such a hearing
must be.
When determining what process is
due to an employee, a court will balance
three factors:
• The private interest affected by the
school district's action;
• The risk of an erroneous deprivation of
the employee's interests through the procedures used and the probable value, if
any, of additional or substitute procedural safeguards; and
• The school district's interest in having
the employee removed from his or
her position.
The US Supreme Court and the Seventh
Circuit Court of Appeals (the federal court
that hears cases arising out of Wisconsin)
have recently applied this test in determining what process is required when suspending an employee without pay during an
investigation into allegations of misconduct.
Case law. The courts in Gilbert v. Homar,2
Ibarra v. Martin, 3 and Duncan v. Wisconsin
Dept. of Health and Family Serv. ,4 each held
that an employee's due process rights where
not violated when the employee was suspended without pay pending the result of
an investigation. These cases affirm the right
of employers to suspend public employees
without pay in such circumstances, especially when the suspensions help ensure the
safety or health of the public.
In Gilbert, the employee, Homar, was a
tenured university police officer who was
charged with felony drug counts following a
drug raid. Immediately upon learning about
Homar's arrest and without speaking with
him, a supervisor suspended Homar without
pay. Five days following Homar's arrest and
suspension, the drug charges against him
were dropped. The suspension without pay,
however, remained in effect for an additional 13 days. During the 18-day suspension,
Homar had no opportunity to respond to or
dispute the charges. The US Supreme Court,
after balancing the above three relevant facNEWS
JUNE
1999
tors, held that the suspension did not violate
Homar's due process rights.
Ibarra, involved an Illinois state probation
officer. A co-worker accused Iharra of sexually assaulting her during an off-duty incident on June 17, 1995. Two days later,
the alleged assault was reported to Ibarra's
supervisor. Ibarra's supervisor informed him
of the charges against him and invited Ibarra
to defend himself by telling his version of the
incident, which Ibarra declined to do.
On June 25, Ibarra was arrested and
charged with misdemeanor sexual assault in
connection with the incident. Subsequent to
Ibarra's arrest, his supervisor asked him
10-20 questions regarding the incident, all
of which Ibarra declined to answer. On
July 7, Ibarra was suspended without pay.
On July 21, he was found not guilty of the
sexual assault charges. Following his acquittal, Ibarra remained on an unpaid suspension for two more weeks, until August 3. At
that time, he was reinstated with back pay.
He later filed suit claiming a constitutional violation of his due process rights and
seeking damages. On appeal, the Seventh
Circuit Court of Appeals recognized that
Ibarra did not receive a hearing before his
suspension without pay. Nonetheless, the
court applied the balancing test and held
there was no due process violation.
In Duncan, Duncan was employed as
a youth counselor at the Ethan Alien state
correctional facility. A resident of the facility
complained that Duncan had been verbally
abusive, saying Duncan had "really lost it,"
threatened to "kick ass," and called the resident a "punk ass bitch." Duncan was placed
on paid suspension on March 10, while the
investigation into his behavior continued.
On May 2, Duncan met with his supervisor,
told his version of the events surrounding
the verbal outburst, and was verbally reprimanded. On May 12, Duncan was informed
that his suspension with pay was being converted to without pay. He was terminated
on July 18. Duncan later filed suit. Again,
upon applying the balancing test, the court
denied Duncan's due process claims.
Application of the balancing test. Gilbert,
Ibarra, and Duncan have provided insight
~Although the
courts in Gilbert,
Ibarra, and
Duncan allowed
the employer to
suspend an
employee without
pay and without
a pre-suspension
hearing, such a
practice is risky.~
into how courts will apply the due process
requirements to suspensions without pay.
The courts have dismissed the first factor,
the employee's private interest in a paycheck, as relatively insignificant. The courts
have recognized that while an employee's
interests in his or her paycheck is legitimate, it is moderated by the brief length
of the loss and the lack of finality of the
deprivation. Of course, the private interest
in financial payment increases the longer
the suspension lasts without a final ruling
on the merits of the charges.
Providing a pre-suspension hearing
greatly limits the significance of the second
factor, the risk of erroneously depriving
employees of their property interest in their
employment. Without a pre-suspension
hearing, an employee has no opportunity
to respond to the charges or resolve possible misunderstandings. This obviously
increases the risk of wrongly suspending
an employee. Pending criminal charges,
an internal investigation and discussions
about the situation with an employee all
limit the risk of error and are taken into
consideration by the courts.
Also, the thoroughness of the investigation
and the promptness of a post-suspension
hearing affect the risk of erroneous error.
Courts place significant emphasis on the
third factor, the government's interest in
removing the employee from his or her position. The government's interest increases
when employees occupy positions of public
trust and high visibility. Teachers and other
school employees who work with children
would most likely fit within this description.
The government's interest also increases
significantly when the charges indicate
a health or safeW risk to the public.
Appropriate steps to take. W h e n a n
employee commits a serious rule violation
and school district personnel consider
termination of the employee a likely consequence, the district may consider suspending the employee without pay pending the
outcome of its investigation or any criminal
proceedings. Although the courts in Gilbert,
Ibarra, and Duncan allowed the employer
to suspend an employee without pay and
without a pre-suspension hearing, such
a practice is risky. A better approach is
to always provide an employee some form
of hearing before suspending him or her
without pay.
Teachers and other school employees
occupy positions of public trust. School districts have a significant interest in removing
them from their positions if the charges
are serious and indicate threats to student
health or safety. Under these circumstances,
employees are entitled to more limited
procedural due process.
A pre-suspension hearing need not be
elaborate or extensive. The hearing should
at a minimum provide the employee with:
• Proper notice of the charges;
• An explanation of the administration's
evidence and documentation; and
• An opportunity to respond.
The purpose of a pre-suspension hearing
is to act as an initial check against mistakes
and to ensure that reasonable grounds exist
to support the suspension without pay.
The amount of notice that an employee
needs to receive prior to a pre-suspension
hearing will depend on the facts of the
case. For example, some courts have held
that due process does not require that
there be a delay between the notice and the
opportunity to respond. 5 A court recently
ruled, however, that giving an employee
contemporaneous notice during a pre-termination hearing did not satisfy procedural
due process. 6 Therefore, as a general rule,
an employee should be given as much
notice as possible.
A suspended employee must also receive
a prompt post-suspension hearing. Provided
the employee receives a pre-suspension
hearing, a grievance arbitration hearing
will likely constitute the requisite post-suspension due process hearing. When no presuspension hearing occurs, the risk of
erroneous deprivation increases. Thus,
a school district would be under a greater
duty to more promptly provide a post-suspension hearing.
Conclusion. School districts must be mindful
of the due process clause when terminating
or suspending employees without
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JUNE 1999 WISCONSIN SCHOOL NEWS
23
pay. Due process does not, however, foreclose a school district from suspending without pay employees who are accused of
serious violations or crimes that threaten
student safety. Due process is a flexible concept, and every case must be analyzed individually. When the safety or health of
students is an issue, school districts should
explore the option of suspending employees
without pay rather than providing those
employees with a paid leave during the
course of the district's investigation.
Pre-suspension hearings can be held
quickly, at limited expense, and function
to greatly reduce a school district's possible
liability for violating the due process clause
w h e n suspending an employee without pay.
If a school district determines that the allegations are unfounded and reinstates
24
WISCONSINSCHOOL NEWS JUNE 1999
the employee, it will likely be liable
for back pay. o)
References
1. See also ~Loudermill, Due Process and
Discharge," Wisconsin School News
(August 1986).
2. 117 S. Ct. 1807(1997).
3. 143 F.3d 286 (Tth Cir. 1998).
4. 166 F.3d 930 (7th Cir. 1998).
5. Loudermill v. Cleveland Bd. of Educ., 651 F.
Supp. 92 {N.D. Ohio 1986), aft'd, 844 F.2d 304
(6th Cir. 1988); see also Flath v. Garrison
Public School Dist. No. 51, 82 F.2d 244
(8th Cir. 1996); McDaniels v. Flick, 59 F.3d
446 (3rd Cir. 1995), cert. denied, 11B S. Ct.
1017 (1996); Gniotek v. City of Philadelphia,
808 F.2d 241 (3rd Cir. 1986).
6. Staples v. City of Milwaukee, 142 F.3d 383
(Tth Cir. 1998).