8.1.2 Due Process

A classified public employee possesses a constitutionally protected property interest, deprivation of which requires due process. The critical elements to procedural due process are notice and an effective opportunity to respond.1  Due process is a flexible standard; what protections are required depends upon the particular situation.2  To satisfy procedural due process, an employment discipline process must start with a written pre-deprivation notice of intended discipline that contains enough information to inform the employee why discipline is intended. Pre-deprivation notice may not be required in emergency situations such as financial exigency, safety concerns, or health hazards. Notice must typically be followed by a basic opportunity to respond to the charges; this opportunity is usually face-to-face, but a response in writing might be permissible depending on the situation. Final notice must give enough information for an employee to prepare a defense in any post-deprivation hearing and include applicable appeal rights. An employee who exercise the right of appeal is afforded a post-deprivation opportunity for a real hearing where witnesses may be called or cross-examined, evidence subpoenaed, etc.

You can often get your client reinstated (even if only temporarily) with back pay restored by finding mistakes that the appointing authority made in the disciplinary process. Don’t assume that the correct procedure was followed. Most civil service systems will allow for summary disposition motions or other pre-adjudication procedures by which to raise procedural defects.

• 1Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985); Moore v. Ware, 01-3341 (La. 2/25/03); 839 So. 2d 940.
• 2Gilbert v. Homar, 520 U.S. 924, 930 (1997); Moore, 01-3341, 839 So. 2d 940.