Loudermill - further questions
brown
23 Posts
Alright - I've scheduled the Loudermill hearing and now the Union attorney has asked for all documents, etc. which support the disciplinary action. We conducted investigations and have signed statements from various employees. The Union attorney wants these documents prior to the hearing...is he entitled to them? I want to avoid disclosing the witness names if possible.
Comments
Under the due process rights estalbished in California's Skelly v. State Personnel Board, the permanent (propertied or tenured) employee has a right to know of the public sector agency's intent to discharge him or her (or suspend without pay, or demote a permanent employee), the basis for the intended action, the specific charges and facts being alleged and right to copies of all documents upon which the allegations are based. The employee is given a reasonable, effective opportunity to respond to the intent before the decision-maker or someone who can recommend to the decision-maker on why the intended action should not be taken.
The Loudermill case came out of Ohio in 1985. It essentially also held the same requirements (acutally, the US Supreme Court had already basically concurred with the Skelly ruling earlier in other similar cases that had reached it and pre-termination rights were pretty well established by the time of Loudermill).
The Loudermill ruling on the issue you're asking about didn't say specifically about evidence or documents but did strongly imply that the employee had the right to them at the time the allegations were made prior to discharge.
Justice White, in part wrote in the majority decision in Loudermill:
"The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. See Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1281 (1975). The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. See Arnett v. Kennedy, 416 U.S., at 170 -171 (opinion of POWELL, J.); id., at 195-196 (opinion of WHITE, J.); see also Goss v. Lopez, 419 U.S., at 581. To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee." (470US532)
In order for the employee to make an effective response and to get a satisfactory explanation of the agency's evidence, it seems to me that it would only make sense that the documents be made available.
I think that the controlling legislation affecting the civil service or employment status of your government entity's employees would spell out the operational procedures to carry out the Loudermill decision. If you need a definitive ruling, you should talk to your jurisdiction or agency's legal counsel or review your governmental entity's civil service or personnel rules and regulations.
Hatchet is once again the authority on public sector.
Usually, the HR person in a small to medium size public sector employer has more knowledge about employment law than the attorney, or one who's hired part-time to represent the municipality. That's not to say that it doesn't pay to consult an attorney, but with a little help, the HR person ought to be able to handle the average termination.
However, in Ohio you would have to provide them because of the "Sunshine law" or public records law. Any document (with redacted SSN's) maintained by a public employer is a public document and must be disclosed in a reasonable amount of time if requested. The courts have ruled that a reasonable amount of time is the time it would take to locate and copy the records.
Another piece of advice. Do not bring witnesses to the Loudermill hearing. Instead, bring written statements. If you bring a witness, then the employee's attorney gets the chance to cross examine the witness in a very informal setting. Then, use the same statements for the union grievances. Save the witnesses for binding arbitration, if you get there. This way, the employee's attorney will be cross examining your witness for the 1st time during. arbitration, not the 2nd or 3rd time.
In California we do provide copies of the documents upon request prior to the pre-termination hearing. In Ohio, they apparently do too, based upon the specific law or ordinances addressing the pre-termination rights of public sector employees in Ohio.
As I said before, the issue of whether the employee is entitled to copies of doucments upon which the charges are based at th pre-termination hearing is probably going to be more specifically addressed in the personnel rules and regulations of the governing jurisdiction and thus those have to be looked at or legal counsel consulted.