County Law Update

from Spring 2014 County Lines Magazine

Treasurers topics include trends in public service

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How to handle non-grievable hearing requests

When an employee presents a request for a hearing, we (the AAC’s Risk Management Fund attorneys) study it to decide if it presents a grievable claim — an allegation that, if true, would constitute a violation of the constitution or the law or public policy. If not, we draft a response telling the employee that the request for a hearing is being denied without prejudice to making a new request. We continue this dialogue until the problem is solved.

WHY THE MODEL POLICY? The model policy is the result of our 25+ years of city and county employment litigation experience. Being a public employer, a county is required to follow the requirements of the Fourteenth Amendment: procedural due process (notice, pre-deprivation hearing, and impartial tribunal to hear both sides of the story), substantive due process (legitimate governmental reason), and equal protection of the law (no arbitrary differences in treatment).

The model employment policy is necessarily complicated. We are open to any ideas that will make it a simpler policy/process. It has, however, been carefully drafted to incorporate the requirements of procedural due process (pre-deprivation hearing), substantive due process (legitimate governmental reason), and equal protection of the law (no arbitrary differences in treatment).

NO CHARGE HELP AVAILABLE TO AACRMF MEM-

BERS: We handle county employee discipline and dismissal matters weekly. The AACRMF has authorized us to act, with no charge to the county, to handle any employment matter for any member county. (If any hearing is requested at any stage of the problemsolving process, the county pays the standard $500 AACRMF deductible. That’s it; there is no other charge to the county.)

Since we represent 46 counties through the AACRMF, and we handle employee discipline and dismissal matters weekly, we have applied the model employment policy to hundreds of situations. Usually, we draft the Notice of Employment Action, stating why the elected official’s reasons are in accord with the Fourteenth Amendment (rationally related to a legitimate governmental objective, without any arbitrary differences in treatment). The Notice will offer the affected employee the right to ask for a hearing and will state that the decision to remove or reduce pay or position will not become final until after the hearing process is concluded.

This is for two reasons: 1) it is required by the Fourteenth Amendment and 2) it is an effective, money-saving process for protecting the county from later claims.

PRE-DEPRIVATION HEARING IS BOTH REQUIRED AND HELPFUL: The procedural due process clause of the Fourteenth Amendment has been interpreted by the Supreme Court to require a predeprivation hearing. That is why pay is continued until the hearing is held or re-scheduled at the employee’s request.

Paying the employee until the hearing (usually a few days) is simply the cost of following the requirements of procedural due process. It is cheap compared to the cost of litigation. (The 14day outside limit stated in the model policy is there because one county waited 11 months to make a decision and was later sued for 11 month of pre-deprivation pay. We don’t want to fight that fight again.) We do not legalistically apply the three-day request and other requirements. We will honor (give a substantive response to) any hearing request made at any time.

Our objective is to utilize dialogue to find out and solve any potential (real) liability problems. If there is no potential liability problem, the request for hearing is denied.

SOLVE PROBLEM NOW ... OR LATER? It is easy for any employee to claim, after-the-fact, that the real motivation for the county official’s decision was the deprivation of a protected liberty right (e.g., freedom of association, freedom of speech, freedom to participate in the political process, race, color, creed, gender, national origin, orientation, etc.). All employees — including all at-will employees — have liberty rights protected by the Constitution. The hearing process benefits the employer by forcing the employee to articulate any claimed liberty-interest-deprivation. Otherwise the employee has no duty to speak and can choose to speak in a lawsuit that can be filed any time in the next three years.