Due Process

Appellant’s failure to attend her pre-disciplinary meeting is not job abandonment under CSR 14-50 C.  In re Robinson, CSA 03-13,10-11 (6/18/13).

A party has been afforded constitutionally adequate pre-deprivation due process when the pre-disciplinary meeting includes oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity to present his side of the story.  In re Redacted CSB 67-11 (4/4/2013), citing Cleveland BOE v. Loudermill, 470 U.S. 532 (1985); Riggins v. Goodman, 572 F.3d 1101 (10th Cir. 2009). 

Decision-maker's consideration of matters not contained in the disciplinary letters did not result in a substantial violation of appellant's rights where hearing officer did not consider that evidence at the post-deprivation hearing.  In re Redacted CSB 67-11 (4/4/2013).  

Mere evidentiary rulings made by the hearing officer do not necessarily provide grounds for overturning the decision. In re Redacted CSB 67-11 (4/4/2013).  

Admission of evidence of matters not contained in disciplinary letters did not violate due process where hearing officer did not consider that evidence in determining the issues on appeal.  In re Redacted, CSB 67-11 (4/4/2013). 

Due process rights were not violated by decision-maker's reliance on matters not included in disciplinary letters where appellant was granted a de novo hearing and the hearing officer made an independent judgment on the discipline based only on evidence of allegations contained in the disciplinary letters.  In re Redacted,CSB 67-11 (4/4/2013)

Sheriff department captain had notice of his duties to conduct himself professionally, to lead by example, and to correct sexual banter among his subordinates where he acknowledged: his conduct with a co-worker was unbecoming of his duties; he failed to prevent crude banter from occurring on his watch; and his supervisor told him repeatedly to cease his crude banter and to act more in conformity with his supervisory position. In re Gutierrez, CSA 65-11, 5 (8/28/12).

No due process violation found even though a panel member at appellant’s pre-disciplinary meeting was having an affair with appellant’s principal accuser.  Appellant had an opportunity to respond to the allegations against him, panel member had no voice in the discipline decision, and appellant had an independent post-deprivation hearing.  In re Gutierrez, CSA 65-11, 15-16 (8/28/12).

Appellant’s claim he was deprived of due process because Deputy Manager of Safety merely rubber-stamped subordinate’s recommendation not proven where the Deputy Manager credibly denied the claim, and the Director recommended a more severe penalty than was actually assessed.  In re Gutierrez, CSA 65-11, 16 (8/28/12).

Appellant was not denied due process when his supervisor did not re-schedule cancelled meeting to discuss incident underlying disciplinary proceeding.  The pre-disciplinary meeting provided the opportunity to correct any errors and to be heard in explanation or mitigation.  In re Weiss, CSA 68-10, 7 (2/14/11); citing CSR § 16-40 B.   

Reversal of appellant’s suspension not required even though agency failed to comply strictly with Career Service Rule requiring disciplinary action or request for extension within fifteen days after pre-disciplinary meeting since Appellant did not show her rights were substantially violated.  In re Berlin, CSA 81-10, 1 (Order 1/19/11).  

The fundamental requisites of due process are notice and the opportunity to be heard.  In re Burke, 60-10, 2 (Order 12/8/2010), citing Jefferson v. Colorado Dept. of Social Services, 874 P.2d 408, 409 (Colo.App. 1993).  

Where an administrative adjudication turns on questions of fact, due process requires the parties to be apprised of all the evidence to be considered, to be afforded a reasonable opportunity to confront and cross examine adverse witnesses, and to present evidence and argument in furtherance of their position.  In re Burke, 60-10, 2 (Order 12/8/2010), citing Goldberg v. Kelly, 397 U.S. 254, 269 (1970); Jefferson, v. Colorado Dept. of Social Services, 874 P.2d 408, 409. (Colo. App. 1993).

An agency may not penalize an employee without first providing an opportunity for rebuttal, including cross-examination. In re Burke, 60-10, 2 (Order 12/8/2010).

Where government action seriously injures an individual and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.  While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers or persons motivated by malice, vindictiveness, intolerance, prejudice, or jealousy. In re Burke, 60-10, 2 (Order 12/8/2010), quoting Bennett v. National Transportation Safety Board, 66 F.3d 1130, 1136 (10th Cir. 1995) (citing Hannah v. Larche, 363 U.S. 420, 440 n. 16 (1960).

When appellant has notice of the documents to be produced at hearing, he had an opportunity to inspect them, the proponent of the statements in the documents is known and subject to subpoena, and appellant could have requested a continuance to procure attendance of the witness, but the appellant failed to utilize these options, the appellant cannot complain he did not have the opportunity to cross-examine the witness.  In re Burke, 60-10, 1-2 (Order 12/8/2010) citing Bennett v. National Transportation Safety Board, 66 F.3d 1130, 1136 (10th Cir. 1995); Jefferson v. Colorado Dept. of Social Services, 874 P.2d 408, 409 (Colo. App. 1993).  

Appellants were not denied adequate notice of the multiple agency rule violations where appellants were represented by counsel, failed to raise the claim at the pre-disciplinary hearing, and agency claims were not unduly complex, voluminous or otherwise unclear.   In re Sawyer and Sproul, CSA 33-08, 16 (1/27/09).

The career service rules mirror the provisions of the Denver City Charter in which career service employees may be terminated only for cause and may appeal a termination decision to the board and its hearing officers.  In re Mounjim, CSB 87-07, 7 (1/8/09).

Because of the right to a post-termination hearing, an employee’s pre-termination rights are limited: due process requires only notice of the charges, a recitation of the employer’s evidence, and an opportunity to be heard.  In re Mounjim, CSB 87-07, 8 (1/8/09), citing Cleveland Board Education v. Loudermill, 470 U.S. 532, 546 (1985).

A voluminous recitation of facts which support each particular rule violation is not required in an agency’s pre-disciplinary letter. In re Mounjim, CSB 87-07, 7 (1/8/09).

Property interests may be created by ordinance or implied contract.  In re Romero, CSA 03-08 (Order 2/6/08), citing  Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976).

A public employee must have a legitimate claim of entitlement to continued public employment for a property interest to arise.  Only once a property right is established will the question arise what process is due under the federal Constitution. In re Romero, CSA 03-08 (Order 2/6/08), citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541-45, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985).

A unilateral expectation of continued public employment is not sufficient to create a property interest in continued employment.  In re Romero, CSA 03-08 (Order 2/6/08), citing Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123, 1129 (10th Cir. 2001), Board. of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). 

Whether the CSA or the agency established rules or mutually explicit understandings which allow appellant to state a claim for deprivation of property without due process of law depends on whether the circumstances of his employment gave him a legitimate claim of entitlement.  In re Romero, CSA 03-08 (Order 2/6/08), citing Adams County School Dist. No. 50 v. Dickey, 791 P.2d 688, 694 (Colo. 1990).

The sufficiency of an employee's claim of entitlement is determined by reference to state law.  The hallmark of property is an individual entitlement grounded in state law, which cannot be removed except for cause.  In re Romero, CSA 03-08 (Order 2/6/08), citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982).

Even if appellant was not afforded a pre-disciplinary meeting while other probationary employees were, he has no property interest in his continued employment that would entitle him to such pre-termination protection.  In re Romero, CSA 03-08 (Order 2/6/08).

The only process due a probationary employee is notice sent to the employee that he is expected to fail probation and an opportunity to meet to discuss the termination of probation.  In re Allen, CSA 16-06, 3 (6-6-06).

Where hearing office clearly has no jurisdiction under the Career Service Rules, argument that appellant would be denied due process if hearing office does not exercise jurisdiction over his appeal is rejected.  In re Lovin, CSA 27-06, 2 (5/18/06).

Hearing office is not a court of general jurisdiction, but rather an administrative forum which hears only actions defined by the rules under which it operates. In re Lovin, CSA 27-06, 2 (5/18/06).

Dismissal of appeal challenging amount of accrued vacation pay was not denial of due process, as limited jurisdiction of hearing office covers only defined acts of appointing authorities. In re Lovin, CSA 27-06, 1-2 (5/18/06).

Threshold issue in every due process challenge is whether appellant has been deprived of a protected interest in property or liberty.  Only after determining the deprivation of a protected interest may the hearing officer assess whether agency’s procedures comported with due process.  In re Vigil, CSA 110-05, 5 (3/3/06), citing In re Douglas, CSA 317-01, 3 (3/22/02);American Mfg. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999).

In appeal alleging deprivation of a protected property interest by agency’s assessment of 2.5 hours leave without pay, the deprivation was de minimus and therefore not entitled to due process protections.  In re Vigil, CSA 110-05, 5-6 (3/3/06), citing Gabel v. Jefferson County School District R-1, 824 P.2d 26, 28 (Colo. App. 1991).

Supervisor’s decision to discipline appellant for taking earned sick leave, even if he had believed her leave was legitimate, rendered appellant’s pre-disciplinary hearing meaningless, in violation of her right to be heard.  In re Espinoza, CSA 30-05, 7 (1/11/06), affirmed on other grounds, CSB 8/23/06.  

To trigger the due process protections of U.S. Const. amend. XIV, a plaintiff must show that she possesses either a property or liberty interest in the benefits of which she claims to have been deprived.  In re Martinez, CSA 69-05, 7 (1/4/06), citing Pfenninger v. Exempla, Inc., 116 F. Supp.2d 1184 (D. Colo. 2000). 

Neither the Career Service Rules nor due process requires personal notice of public hearings to any person who may be affected thereby.  In re Jackson, CSA 103-04, 4 (6/13/05), citingUnited States v. Florida East Coast R. Co., 410 U.S. 224 (1973).

Agency’s failure to deliver disciplinary letters to appellant’s last known address did not deprive appellant of an opportunity to be heard since the postal forwarding order had expired, rendering any such delivery ineffective.  In re Kinfe, CSA 161-04, 4 (3/16/05), citing Loudermill v. Cleveland Board of Education, 470 U.S. 532 (1985). 

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