Public Employee Discipline Without Hearing
In Gilbert v. Homar (1997) 520 U.S. 924 117 S. Ct. 1807, 138 L. Ed. 2d 120, the United States Supreme Court held that there may be situations where a public employee can be disciplined without any type of predeprivation hearing.
In Gilbert, the plaintiff was employed as a police officer at a state university. While at the home of a friend, he was arrested by state police during a drug raid.
Later that day, the plaintiff was charged with various drug offenses. Upon learning of the arrest, the university administration immediately suspended the plaintiff without pay.
A month later, the university demoted the plaintiff to the position of groundskeeper. the plaintiff brought suit, alleging that the university had violated his right to due process by suspending him without a hearing. the court rejected that argument, stating:
" 'We have rejected the proposition that due process always requires the State to provide a hearing prior to the initial deprivation of property.' . . .
"To determine what process is constitutionally due, we have generally balanced three distinct factors:
" 'First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest.' . . .
". . . While our opinions have recognized the severity of depriving someone of the means of his livelihood . . ., they have also emphasized that in determining what process is due, account must be taken of 'the length' and 'finality of the deprivation. . . . Unlike the employee in Loudermill, who faced termination, the plaintiff here faced only a temporary suspension without pay.
So long as the suspended employee receives a sufficiently prompt postsuspension hearing, the lost income is relatively insubstantial (compared with termination), and fringe benefits such as health and life insurance are often not affected at all . . . .
"On the other side of the balance, the State has a significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers.
The plaintiff contends that this interest in maintaining public confidence could have been accommodated by suspending him with pay until he had a hearing.
We think, however, that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense. If his services to the government are no longer useful once the felony charge has been filed, the Constitution does not require the government to bear the added expense of hiring a replacement while still paying him. . . .
"The last factor in the . . . balancing test, and the factor most important to resolution of this case, is the risk of erroneous deprivation and the likely value of any additional procedures. . . . We noted in Loudermill that the purpose of a pre-termination hearing is to determine 'whether there are reasonable grounds to believe the charges against the employee are true and support the proposed action.' . . . by parity of reasoning, the purpose of any pre-suspension hearing would be to assure that there are reasonable grounds to support the suspension without pay. . . . But here that has already been assured by the arrest and the filing of charges.
". . . As with an indictment, the arrest and formal charges imposed upon the plaintiff 'by an independent body demonstrate that the suspension is not arbitrary.' . . . Like an indictment, the imposition of felony charges 'itself is an objective fact that will in most cases raise serious public concern.' . . . for present purposes arrest and charge give reason enough.
They serve to assure that the state employer's decision to suspend the employee is not 'baseless or unwarranted,' . . . in that an independent third party has determined that there is probable cause to believe the employee committed a serious crime." ( Gilbert v. Homar, supra, 520 U.S. at pp. 930-934 117 S. Ct. at pp. 1812-1814, citations omitted.)