Pocket Guide to Due Process in Public Employment

By Emi Uyehara
Updated by Margot Rosenberg and Kate Hallward
3rd edition, 2013

$20 each

Order Online
Mail-In Order Form

The right to procedural due process is one of the most significant constitutional guarantees provided to citizens in general and to public employees in particular. Its entitlement has been created by statute, charter, ordinance, and other local laws or enactments. This pocket guide provides an overview of due process in public sector employment to assist employees and their employers in understanding their respective rights and obligations.

The guide explains who is protected, what actions are covered, what process is due, remedies for violations, and more. A section focuses on the due process rights afforded to several specific types of employees: state civil service, public officers, police officers, school district employees, and community college district employees. The Pocket Guide also includes a discussion of Skelly and other key cases on due process and the liberty interest.

The Due Process Guide includes:

• The most recent court decisions and relevant discussion of due process in the collective bargaining context
• The types of actions subject to due process protections, and those not covered
• The the process and procedures associated with investigations, pre-deprivation and post-deprivation stages
• Available remedies for pre- and post- deprivation violations
• Discussion of the Lybarger/Spielbauer admonition in the investigative stage, application of due process in the lay off context, and exhaustion of administrative processes requirement.

Author Emi Uyehara, now retired, was a partner in the San Francisco law firm of Liebert Cassidy Whitmore. Margot Rosenberg and Kate Hallward are partners in the law firm of Leonard Carder.

TABLE OF CONTENTS

1. What Is Due Process? 1
   1. Introduction 1
   2. Sources of the Right: The U.S. and California Constitutions 2
   3. What Is a Property Interest? 2
   4. Which Employees Have a Property Interest in Continued Employment? 3
   5. Which Employees Do Not Have a Property Interest in Continued Employment? 5
      1. At-Will Employees 5
      2. Probationary Employees 6
      3. Temporary and Substitute Employees 7
         
   6. What Actions Are Covered? 7
      1. Dismissal 8
      2. Forced Retirement 8
      3. Suspension Without Pay 8
      4. Involuntary Leave of Absence 9
      5. Demotion Resulting in Pay Reduction 10
      6. Job Abandonment 10
      7. Layoff 11
      8. Exception for Extraordinary Circumstance Requiring Immediate Removal 13
   7. What Actions Are Not Covered? 13
      1. Reprimand 13
      2. Transfer, Reassignment or Removal From Administrative Post 14
      3. Denial of Tenure 16
      4. Loss of Hours of Work 16
      5. Negative Evaluation 16
      6. Placement on Reemployment List 16
   8. What Process is Due? 17
      1. Disciplinary Investigations 17
      2. Pre-Deprivation Due Process Rights 19
         1. Notice of the proposed action 19
         2. Opportunity to respond prior to removal from paid status 20
         3. Remedies for violation of pre-deprivation due process 24
      3. Post-Deprivation Due Process Rights 25
         1. Post-deprivation hearing regarding propriety of short-term suspension 25
         2. Evidentiary hearing regarding significant deprivations of due process 26
         3. Remedies for violations of post-deprivation due process rights 28
   9. Public Employees and the Liberty Interest 31
      1. Elements of the Liberty Interest 32
         1. Stigmatizing charge 32
         2. Denial of the charge 34
         3. Public disclosure of the charge 34
      2. What Process Is Due? 35
         1. The hearing must be held before termination 35
         2. The hearing procedures 36
      3. Availability of Damages 36
      4. Other Sources of Rights for Deprivation Hearings 37
      5. Summary 38
2. Due Process Rights of Specific Types of Employees 39
   1. Public Officers 39
   2. State Civil Service 40
      1. Non-Managerial Employees 40
      2. Managerial Employees 40
   3. Police Officers and Firefighters 40
   4. School District Employees 42
      1. Certificated Employees 42
         1. Permanent employees 42
         2. Probationary employees 46
         3. Temporary employees 47
         4. Other non-regular employees 48
      2. Classified Employees 49
         1. Non-merit districts 49
         2. Merit districts 50
   5. Community College District Employees 51
      1. Academic Employees 51
         1. Contract employees 52
         2. Temporary employees 53
      2. Classified Employees 56
         1. Non-merit districts 56
         2. Merit districts 58
3. Key Cases Regarding Procedural Due Process 59
   1. Pre-Deprivation Procedures 69
   2. Post-Deprivation Procedures 63
   3. Liberty Interest and Procedural Protections 64
   4. Remedies 66
4. Glossary 68
5. Index of Terms 71