Most people have heard of due process but few have heard of Loudermill hearings.

Every American citizen has the right to due process: You cannot be deprived of your life liberty or property without you being told of it and given a fair hearing before the property is taken. The same rule applies to public employees when it comes to their wages (or property).

The importance of Cleveland Board of Education v. Loudermill

In this landmark case the court held that only employees with a “protected property interested in continued employment” are entitled to a pre-termination hearing. Which means they need to be told that something is being taken away (they are being terminated) and they have the right to defend their right to keep that something (their job).

Due process, the hearing, and the public employee

At this hearing the government must prove that it has a just cause for firing (or terminating) an employee. The employee then has the opportunity to say or show why they should stay employed.

In each case the local law is used to determine whether a protected property interest exists. For example, if a municipal charter states that city employees are “at will” this will override any other ordinance or resolution or policy to the contrary.

Determining whether or not a public employee is an “at will” employee

What will determine if a public employee is “at will” requires a review of:

  1. All state and local laws
  2. All employee handbooks and relevant materials regarding job security
  3. Applicable governmental codes
  4. All sources of employee policies
  5. All hiring documents including the application
  6. A critical review of the employer’s customs, practices and precedent

When employment is found to be “at will” then the employer may terminate employment “at any time for any reason without due process.”

Not every person whose job is connected to the government is a public employee. However, tenured teachers do have a property interest. Therefore the government must show just cause and they must be given a hearing.