Handbooks, Loudermill & Council Bias: Is This Due Process? By Jerry L. Pigsley and Kelly M. Ekeler, Harding & Shultz, P.C., L.L.O. Public employees often have protected property interests in continued employment. An interest may arise from a state law or local ordinance, a union labor agreement, or an employment contract. The language giving rise to the protected interest usually requires that the public employer have “just cause” before dismissing the employee, but may arise from less obvious language. When dismissing an employee with a protected property interest, municipalities must follow proper due process procedures and avoid biased decision makers at the posttermination hearing. Handbooks Recently, the U.S. Court of Appeals for the Sixth Circuit held that inconspicuous language in a police department policy manual created a protected interest in continued employment. Freeze v. City of Decherd, 4:10-cv-00014 (6th Cir. June 4, 2014). Despite the police department’s
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argument that the manual was not binding, the court held that the language: “discipline shall be for cause and follow the basic concepts of due process,” created a protected property right in employment. The court held that the manual created a protected right despite permissive language in the manual, including statements that the department would avoid dismissing employees “if possible” and that when “discipline is deemed appropriate . . . a progressive system [will be used] when practicable.” The South Dakota Supreme Court took a similar view and found that handbook language created a protected interest in continued employment for a City of Yankton police officer. See Kolda v. City of Yankton, 2014 SD 60, 852 N.W.2d 425 (2014). Specifically, the court found that the grievance procedure created an interest in continued employment because it provided an “opportunity for all municipal employees to discuss grievances concerning the application and interpretation of the provisions of [the City’s] personnel manual.” It further required that the procedure “must be followed when an employee has a
SOUTH DAKOTA MUNICIPALITIES
