Appellants were not denied adequate notice of the multiple agency rule violations where appellants were represented by counsel, failed to raise the claim at the pre-disciplinary hearing, and agency claims were not unduly complex, voluminous or otherwise unclear. In re Sawyer and Sproul, CSA 33-08, 16 (1/27/09).
The career service rules mirror the provisions of the Denver City Charter in which career service employees may be terminated only for cause and may appeal a termination decision to the board and its hearing officers. In re Mounjim, CSB 87-07, 7 (1/8/09).
Because of the right to a post-termination hearing, an employee’s pre-termination rights are limited: due process requires only notice of the charges, a recitation of the employer’s evidence, and an opportunity to be heard. In re Mounjim, CSB 87-07, 8 (1/8/09), citing Cleveland Board Education v. Loudermill, 470 U.S. 532, 546 (1985).
A voluminous recitation of facts which support each particular rule violation is not required in an agency’s pre-disciplinary letter. In re Mounjim, CSB 87-07, 7 (1/8/09).
Property interests may be created by ordinance or implied contract. In re Romero, CSA 03-08 (Order 2/6/08), citing Bishop v. Wood, 426 U.S. 341, 344, 48 L. Ed. 2d 684, 96 S. Ct. 2074 (1976).
A public employee must have a legitimate claim of entitlement to continued public employment for a property interest to arise. Only once a property right is established will the question arise what process is due under the federal Constitution. In re Romero, CSA 03-08 (Order 2/6/08), citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541-45, 84 L. Ed. 2d 494, 105 S. Ct. 1487 (1985).
A unilateral expectation of continued public employment is not sufficient to create a property interest in continued employment. In re Romero, CSA 03-08 (Order 2/6/08), citing Kingsford v. Salt Lake City Sch. Dist., 247 F.3d 1123, 1129 (10th Cir. 2001), Board. of Regents v. Roth, 408 U.S. 564, 577, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
Whether the CSA or the agency established rules or mutually explicit understandings which allow appellant to state a claim for deprivation of property without due process of law depends on whether the circumstances of his employment gave him a legitimate claim of entitlement. In re Romero, CSA 03-08 (Order 2/6/08), citing Adams County School Dist. No. 50 v. Dickey, 791 P.2d 688, 694 (Colo. 1990).
The sufficiency of an employee's claim of entitlement is determined by reference to state law. The hallmark of property is an individual entitlement grounded in state law, which cannot be removed except for cause. In re Romero, CSA 03-08 (Order 2/6/08), citing Logan v. Zimmerman Brush Co., 455 U.S. 422, 430, 71 L. Ed. 2d 265, 102 S. Ct. 1148 (1982).
Even if appellant was not afforded a pre-disciplinary meeting while other probationary employees were, he has no property interest in his continued employment that would entitle him to such pre-termination protection. In re Romero, CSA 03-08 (Order 2/6/08).
The only process due a probationary employee is notice sent to the employee that he is expected to fail probation and an opportunity to meet to discuss the termination of probation. In re Allen, CSA 16-06, 3 (6-6-06).
Where hearing office clearly has no jurisdiction under the Career Service Rules, argument that appellant would be denied due process if hearing office does not exercise jurisdiction over his appeal is rejected. In re Lovin, CSA 27-06, 2 (5/18/06).
Hearing office is not a court of general jurisdiction, but rather an administrative forum which hears only actions defined by the rules under which it operates. In re Lovin, CSA 27-06, 2 (5/18/06).
Dismissal of appeal challenging amount of accrued vacation pay was not denial of due process, as limited jurisdiction of hearing office covers only defined acts of appointing authorities. In re Lovin, CSA 27-06, 1-2 (5/18/06).
Threshold issue in every due process challenge is whether appellant has been deprived of a protected interest in property or liberty. Only after determining the deprivation of a protected interest may the hearing officer assess whether agency’s procedures comported with due process. In re Vigil, CSA 110-05, 5 (3/3/06), citing In re Douglas, CSA 317-01, 3 (3/22/02); American Mfg. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999).
In appeal alleging deprivation of a protected property interest by agency’s assessment of 2.5 hours leave without pay, the deprivation was de minimus and therefore not entitled to due process protections. In re Vigil, CSA 110-05, 5-6 (3/3/06), citing Gabel v. Jefferson County School District R-1, 824 P.2d 26, 28 (Colo. App. 1991).
Supervisor’s decision to discipline appellant for taking earned sick leave, even if he had believed her leave was legitimate, rendered appellant’s pre-disciplinary hearing meaningless, in violation of her right to be heard. In re Espinoza, CSA 30-05, 7 (1/11/06), affirmed on other grounds, CSB 8/23/06.
To trigger the due process protections of U.S. Const. amend. XIV, a plaintiff must show that she possesses either a property or liberty interest in the benefits of which she claims to have been deprived. In re Martinez, CSA 69-05, 7 (1/4/06), citing Pfenninger v. Exempla, Inc., 116 F. Supp.2d 1184 (D. Colo. 2000).
Neither the Career Service Rules nor due process requires personal notice of public hearings to any person who may be affected thereby. In re Jackson, CSA 103-04, 4 (6/13/05), citing United States v. Florida East Coast R. Co., 410 U.S. 224 (1973).
Agency’s failure to deliver disciplinary letters to appellant’s last known address did not deprive appellant of an opportunity to be heard since the postal forwarding order had expired, rendering any such delivery ineffective. In re Kinfe, CSA 161-04, 4 (3/16/05), citing Loudermill v. Cleveland Board of Education, 470 U.S. 532 (1985).