The Constitution protects the public, including public employees, from deprivations of life, liberty, or property without due process. For a public employee to be entitled to due process, the public employer’s action must adversely affect a liberty or property interest. Property interests are usually created by state law, such as a civil service system or a contract. A public employee’s liberty interest can be triggered by a discharge under certain publicly stigmatizing circumstances. If no liberty or property interest is involved, the Constitution does not require due process.
Public employers are sometimes required to provide due process before taking action. When due process is required, the the timing and nature of procedural protections the public employer must provide can vary depending on the circumstances. The public employer typically must provide a real opportunity for the employee to present objections to the proposed governmental action. In other cases, it is enough to provide due process after taking action or to provide employees some minimal opportunity to be heard before taking action with a more thorough opportunity for a hearing afterwards. The required procedures can range from an informal meeting to a full evidentiary hearing.
Correctly determining whether a public employee is entitled to due process and, if so, what kind of process requires sound legal analysis and judgment. Incorrect decisions can lead to lawsuits and personal liability for those involved. Attorneys at Taft guide employers through the complex laws that affect public employees and defend employers in court should that become necessary. Taking the necessary steps to avoid litigation is always the best course; but when a claim is filed in court, experience can make the difference.