Wednesday, June 01, 2011

Summary 2011 WY 86

Summary of Decision June 1, 2011

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Case Name: Town of Evansville Police Department v. Porter

Citation: 2011 WY 86

Docket Number: S-09-0178, S-10-0133


Appeal from the District Court of Natrona County, Honorable W. Tomas Sullins, Judge

Representing Appellant (Defendant): Judith A. Studer of Schwartz, Bon, Walker & Studer, Casper, Wyoming

Representing Appellee (Plaintiff): Keith R. Nachbar of Keith R. Nachbar, Casper, Wyoming

Date of Decision: June 1, 2011

Facts: In these two consolidated appeals, Appellant appeals the district court’s order of reversal for agency inaction (No. S-09-0178) and the district court’s order denying motion for relief from an order (No. S-10-0133). The appeals arise from the Appellant’s effort to terminate the employment of Appellee.

Issues: NO. S-09-0178: Whether Appellee effectively appealed his termination of employment by timely serving his request for hearing on the mayor and the attorney for the Town and the Police Department. NO. S-10-0133: Whether the district court committed an error of law in denying the Appellant’s W.R.C.P. Rule 60(b) motion.

Holdings: The pre-termination procedural due process requirements of the Appellant’s personnel manual are quite clear. There must be a written notice of termination delivered to the employee. That written notice must state: 1. the specific details of the infractions; 2. earlier disciplinary action taken for other, similar infractions, if appropriate; 3. reasons for the termination action; 4. the effective date of the termination; 5. notice of the employee’s right to request an informal hearing before the appointing authority prior to the effective date of termination. When the employee receives this written notice of termination before the effective date of termination, the employee may then request an informal hearing before the appointing authority “for purposes of determining whether there is reasonable cause for termination Importantly, “[a] tape recorded record of the informal hearing shall be maintained.”

Appellant failed to comply with any of these pre-termination procedural due process requirements. The purpose of the requirements of written notice of the specific charges and having the subject employee request a pre-termination hearing is to allow that employee to marshal his case against the terminating actor. Absent suitable written notice, as required by the departmental procedural safeguards in place here, the opportunity for Appellee to marshal his case and be meaningfully heard before termination was a charade. Although the briefs state that at the meeting called by the police chief, several allegations against Appellee were identified, it is clear that the police chief’s termination letter expanded considerably the breadth of reasons for taking termination action. Had the Department (police chief) delivered that letter to Appellee at the outset so that he could marshal his response to the contents of that letter and then request the pre-termination hearing to which he was entitled, perhaps this case would be in a different posture.

It will not do for the Appellant to assert that Appellee could have cured the Department’s violation of his pre-termination procedural due process rights had he but correctly and timely met the requirements of the post-termination procedures prescribed in the personnel manual and submitted his notice of appeal to the police chief as the appointing authority. Where an employee is fired in violation of his due process rights, the availability of post-termination grievance procedures will not ordinarily cure the earlier violation. Thus, even where a discharged employee receives a post-termination hearing to review adverse personnel action, the pre-termination hearing still needs to be extensive enough to guard against mistaken decisions, and accordingly, the employee is entitled to notice, an explanation of the employer’s evidence, and an opportunity to present his side of the story.

Appellant’s termination of Appellee’s employment as a police officer violated his pre-termination procedural due process rights and the action is remanded to the district court with directions that it issue its order ordering the Appellant to immediately reinstate Appellee to that employment.

J. Golden delivered the opinion for the court.

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