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Paid administrative leave and the Constituion

Anyone who reads this blog on a regular basis knows that I am not shy about pointing out when cops have overstepped their bounds. I am not a cop basher, I just call em like I see em, bashing them when they screw up and I support them when they deserve to be supported. This is one of those times.

Whenever a cop does something stupid or controversial, he is placed on paid administrative leave pending investigation, and many people are quick to scream “paid vacation” and “cover up” because they feel that the cop is getting away with the act. The truth is actually quite different.

Since a cop is potentially going to be deprived of something (his job) by a government agency, he or she in entitled to the same rights and protections as an other person in this nation, and as many are quick to point out, cops are civilians the same as the rest of us, and need to be treated in the same way. This means that the government agency, his or her employer, cannot deprive him of his liberty or property without due process of law. When I studied for my degree in Public Safety Administration, we had to take classes on Administrative Law. I will excerpt some of my class materials/papers below, and attempt to explain:

The Fifth Amendment to the U. S, Constitution states “no person shall be deprived of life, liberty or property without due process of law.” Originally this amendment was construed to be applicable only to the federal government. Later, the Fourteenth Amendment was ratified to provide “nor shall any State deprive any person of life, liberty or property without due process of law.” The Fourteenth Amendment clearly applies to municipalities as well. City of Mobile v, Bouldin, 446 U.S. 55 (1950). Further, Section 1983 of Title 42 of the U.S. Code prohibits any person from depriving another of his or her civil rights under color of state law. Section 1983 covers municipal actions as well.

Here we are concerned about a public employee (cop) who is called by the employer to answer for some transgression and punished. The employee appeals, claiming that the public employer violated the employee’s rights by depriving him or her of property (in this instance, the job) without extending due process of law, and deprived the employee of liberty (in this instance, his or her good name in the community) without providing due process of law. A public employee with a constitutionally protected property interest in that employment must be afforded the process prior to termination. Cleveland Bd. Of  Educ, v. Loudermill, 470 U.S. 532,105 S.Ct 148 (1985).

Two U.S. Supreme Court decisions address these questions: Board of Regents V. Roth, 408 U.S. 564 (1972); Perry v. Sinderman, 408 U.S. 593 (1972). The decisions in Roth and Sinderman involved tenured teachers who were fired and who subsequently claimed violation of due process as to their property and liberty rights. These decisions were applicable to all public employees, whether tenured or non-tenured. The court held that a public employee has a property interest protected by due process if he or she could show a “legitimate claim of entitlement” to the job – a contract, or tenure, or even oral or implied understandings – creating a reasonable expectation of continued employment.

A recent decision in the third circuit, Schmidt v. Creedon, F.3d (3rd Cir. 2011) (pdf) makes clear that absent extraordinary circumstances, prior to suspending a police officer for any reason, a police department must provide the officer with notice and a hearing. A good explanation can be found here.

So when you hear that a cop has been suspended pending investigation, it isn’t a Union that is protecting him, it is the same Constitution that protects everyone.

One reply on “Paid administrative leave and the Constituion”

This is one of the biggest things that management screws up in public sector discipline cases.

When a case hits the media, politicians panic, and put pressure on their managers to "do something". Something usually means firing or suspending the employee who is at the center of the controversy, often without anything resembling due process.

Then, a year or more later, out of the public eye, the employee is made whole. Not because he did nothing wrong, but because his public sector employer screwed up the process. Often, they violated their own rules in the process.

That results in all or part of the discipline being voided, the employee being reinstated, and the employer paying back pay to the employee.

If the employer had followed the law and their own rules, the problem employee would have been terminated. Instead what they get is stuck with an employee that probably shouldn't be there.

Oh and when people complain about "the union" protecting someone, I remind them that the union is legally bound to provide protection to it's members. If they fail to do so, they can be civilly liable as well.

Sadly, to some all that "due process" and "fiduciary responsibility" stuff are just "technicalities".

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