Alaska Employment Law

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” . . . nor shall any state deprive any person of life, liberty, or property without due process of law. . . .”

14th Amendment, U. S. Constitution

Public employee due process claims involve two primary issues. The first is whether the public employee has been deprived of liberty or property within the meaning of the Fourteenth Amendment, since no process is due if such an interest is not implicated. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); City of Homer v. Campbell, 719 P.2d 683 (Alaska 1986). If a property or liberty interest is implicated, the second issue concerns the nature of the “process” that is due. Id.

I. Employee Property Interests

A. Public Employees Who Can Be Discharged Only For Cause Have a Property Interest in Their Employment

As the Supreme Court has often recognized, “[p]roperty interests are not created by the Constitution, ‘they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . .’” Id., quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). A public employee has a property interest in continued employment where, under state law, he can be discharged only for “cause.” Brady v. Gebbie, 859 F.2d 1543, 1548 (9th Cir. 1988), cert. denied, 489 U.S. 1100 (1989); Storrs v. Municipality of Anchorage, 721 P.2d 1146 (Alaska 1986); see also Loudermill, 470 U.S. at 539. Conversely, a public employee who serves at the pleasure of his employer can have no expectation of continued employment and therefore does not have a property interest in his job. Bishop v. Wood, 426 U.S. 341, 344-347 (1976); Roley v. Pierce County Fire Protection Dist. No. 4, 869 F.2d 491, 494 (9th Cir. 1989); Brady v. Gebbie, 859 F.2d at 1548. In Bishop v. Wood, for example, a municipal police officer who had been discharged by the city manager did not have a property interest in continuing employment because, under North Carolina law, he “held his position at the will and pleasure of the city.” 426 U.S. at 345. Similarly, under Alaska law “[a] person who is employed ‘at the pleasure’ of his employer has no ‘property’ interest in continued employment that is protected by due process.” Canfield v. Sullivan, 774 F.2d 1466, 1467 (9th Cir. 1985), quoting Breeden v. City of Nome, 628 P.2d 924, 926 (Alaska 1981). Thus, in determining whether a public employee is entitled to due process protection, state law must be examined to determine whether or not he can be discharged only for cause or is terminable at will.

B. Sources of “Cause” Requirement

1. Statutes, regulations, ordinances, charter provisions

State law, charter provisions or local ordinances may require just cause to dismiss certain classes of employees. If so, the protected employee will have a property interest in his job. Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 538 (1985); Bishop v. Wood, 426 U.S. 341 (1976). For example, many positions in local governments are authorized by the City Charter or an ordinance. The Charter or an ordinance may provide that the position is appointed by the city manager and serves “at his pleasure.” Similarly, the Charter or an ordinance may categorize certain positions as “classified,” meaning that just cause is required for termination, or “executive,” meaning that they serve at the pleasure of the executive. See e.g., Walker v. City of Berkeley, 951 F.2d 182 (9th Cir. 1991); Municipality of Anchorage v. Higgins, 754 P.2d 745 (Alaska 1988). When such provisions exist, they are likely to be determinative of whether an employee serves at-will or not, and hence whether he has a property interest in his job.

2. Collective bargaining agreements

Collective bargaining agreements usually provide that covered employees may be terminated only for cause. Thus, these employees have a protected interest in their jobs. See e.g., Storrs v. Municipality of Anchorage, 721 P.2d 1146 (Alaska 1984); Casey v. City of Fairbanks, 670 P.2d 1133 (Alaska 1983); Armstrong v. Meyers, 964 F.2d 948 (9th Cir. 1992); Moffitt v. Town of Brookfield, 950 F.2d 880 (2d Cir. 1991).

3. Personnel policies

Public employees who are not covered by a collective bargaining agreement, and whose positions are not defined by statute or ordinance, may nevertheless claim a property interest in their jobs based upon unilaterally adopted personnel rules or policies that require just cause for discipline or discharge. Farnsworth v. Town of Pinedale, 968 F.2d 1054 (10th Cir. 1992); Adams v. Sewell, 946 F.2d 757 (11th Cir. 1991), cf. Jones v. Central Peninsula General Hosp., 779 P.2d 783 (Alaska 1989) (personnel manual stating that employees would only be discharged for cause is binding on employers).

4. Implied contract/mutually explicit understandings

In Perry v. Sindermann, 408 U.S. 593, 601 (1972), the Supreme Court held that “[a] person’s interest in a benefit is a ‘property’ interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing. The Court went on to note that most states recognize “a process by which agreements, though not formally recognized in writing, may be ‘implied’.” Such implied contract rights against discharge without cause will support a property interest claim. See also Jago v. Van Guren, 454 U.S. 14, 18 (1981); Koopman v. Water Dist. No. 1 of Johnson County, Ka., 972 F.2d 1160 (10th Cir. 1992); Lucero v. Hart, 915 F.2d 1367 (9th Cir. 1990); Roberts v. College of the Desert, 870 F.2d 1411 (9th Cir. 1988); Zerbetz v. Alaska Energy Center, 708 P.2d 1270, 1275 (Alaska 1985).

C. Conflicts Between Statutes and Personnel Policies

Where the city charter provides that department heads serve at the pleasure of the city manager, but city personnel policies provide that city employees can only be discharged for cause, a department head’s employment is governed by the charter. Therefore, he does not have a property interest in employment based on the personnel regulations. Vinson v. City of Valdez, No. 91-35244 (9th Cir. May 26, 1992) (not reported); Driggins v. City of Oklahoma City, 954 F.2d 1511 (10th Cir. 1991).

D. A Property Interest Cannot Be Based Upon A “Mutual Understanding” That Conflicts With A Statute

The Ninth Circuit Court of Appeals confronted this problem in Brady v. Gebbie, 859 F.2d 1543 (9th Cir. 1988). Brady was the State Medical Examiner of Oregon. Under Oregon law, state employees were either classified, meaning they could only be discharged for cause, or unclassified, meaning they served at will. Brady was an unclassified employee and thus served at will. However, Brady argued that he had an “understanding” with his supervisor that he would only be discharged for cause, and that under Oregon law, this could create an implied contract right against arbitrary discharge. The court held that the statutory scheme made clear that Brady did not have a property interest in his job, and that the statute could not be effectively overruled by a contrary understanding between Brady and his supervisor. Id. at 1548-50; see also Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (property interest cannot be based on oral agreement where statute governs duration of employment); Driggins v. City of Oklahoma City, 954 F.2d 1511 (10th Cir. 1992); Batterton v. Texas General Land Office, 783 F.2d 1220 (5th Cir. 1986), cert. denied, 479 U.S. 914 (1986); Baden v. Koch, 638 F.2d 486 (2d Cir. 1980); Woolsey v. Hunt, 932 F.2d 555 (6th Cir. 1991) (property interest cannot be based on mutual understanding where state law provides immunity from implied contract claims against the state). 

In a similar vein, the Ninth Circuit rejected the claim of a non-tenured university professor that he had a property interest in his job based upon mutual understandings, where a formal tenure system existed. Plaintiff could not assert a property interest based upon a claim of “de facto tenure.” Haimowitz v. University of Nevada, 579 F.2d 526 (9th Cir. 1978). However, the Ninth Circuit seems to have taken a contrary position in Roberts v. College of the Desert, 870 F.2d 1411 (9th Cir. 1989).

E. Grievance Procedures That Require or Authorize Procedural Protections For Public Employees

The fact that a government employer has a grievance procedure which employees can use to challenge employment decisions, does not create a property interest in employment unless it imposes a substantive restriction on the termination decision:

[P]rocedural requirements ordinarily do not transform a unilateral expectation into a constitutionally protected property interest. A constitutionally protected property interest has been created only if the procedural requirements are intended to be a . . . restriction on decision making. If the procedures required pose no significant limitations on the discretion of the decision maker, the expectation of a specific decision is not enhanced enough to establish a constitutionally protected interest in the procedures.

Clemente v. United States, 766 F.2d 1358, 1365 (9th Cir. 1985), cert. denied 474 U.S. 1101 (1986), quoting Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir. 1984) (citations omitted); see also Allen v. City of Beverly Hills, 911 F.2d 367, 370 (9th Cir. 1990) (whether property interest is created will depend on the extent the statute restricts the discretion of the decisionmakers).

II. The Process That Is Due - Hearing Procedures

Where a court has determined that a public employee’s job is protected “property,” the employee is entitled to notice and an opportunity to be heard before discharge, except in extraordinary circumstances. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985); Storrs v. Municipality of Anchorage, 721 P.2d 1146 (Alaska 1986). The pre-termination notice and hearing can be dispensed with only in “extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.” McMillan v. Anchorage Community Hosp., 646 P.2d 857 (Alaska 1982), quoting Boddie v. Connecticut, 401 U.S. 371, 378-79 (1971).

A. Requirements of a Pre-Termination Hearing 

1. Federal law

Under federal law the pre-termination notice and hearing requirements are minimal.

The pre-termination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions - essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. at 545-46. Thus, the employee is only entitled to “written or oral notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. at 546. The hearing need not be conducted before a neutral and impartial decisionmaker — it can be conducted by the supervisor who made the proposed discharge decision. McDaniels v. Flick, 59 F.3d 446, 459-460 (3d Cir. 1995); Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991); Duchesne v. Williams, 849 F.2d 1004 (6th Cir. 1988) (en banc), cert. denied 109 S. Ct. 1535; Schaper v. City of Huntsville, 813 F.2d 709 (5th Cir. 1987). A minimal pre-termination hearing, however, must be followed by a full adversarial post-termination hearing. Id.

2. Alaska law

Under the Alaska Constitution, an employee with a property interest in his job is entitled to a full adversarial hearing before termination, Romulus v. Anchorage School Dist., 910 P.2d 610 (Alaska 1996), unless a collective bargaining agreement provides for a grievance hearing after the discharge, Storrs v. Municipality of Anchorage, 721 P.2d 1146, 1150 (Alaska 1986). However, where the nature of the charges justify immediate removal from the job, a public employer may suspend the employee, with pay, pending a full adversarial termination hearing. Romulus, 910 P. 2d at 616 (high school ROTC instructor accused of sexually assaulting female students properly suspended pending due process hearing).

B. Requirements of Post-Termination Hearing Under Federal Law (and Pre-Termination Hearing Under Alaska Law)

1. The right to confront and cross-examine one’s accuser. Adams v. Sewell, 946 F.2d 757, 765 (11th Cir. 1991).

2. The right to attend the hearing. Sutton v. Cleveland Bd. of Educ., 958 F.2d 1339, 1349 (6th Cir. 1992).

3. The right to have the assistance of counsel. Id.

4. The right to call witnesses and present evidence. Id.

5. The opportunity to challenge the evidence against him. Id.

6. The right to attempt to persuade the decisionmaker to exercise discretion not to terminate - even though the employee does not dispute the facts justifying discharge. City of North Pole v. Zabek, 934 P.2d 1292, 1298 (Alaska 1997) (”Even if it appears almost certain that the employee will be unable to do so, due process requires that she be given the opportunity to try.”).

7. The right to a neutral decisionmaker. Farhat v. Jopke, 370 F.3d 580, 595-596 (6th Cir. 2004); Walker v. City of Berkeley, 951 F.2d 182, 184 (9th Cir. 1991).

In Walker, the post-termination process involved a hearing before the City Personnel Board, which ruled in favor of the employee, but the final decision rested with the City Manager. The City Manager reversed the Personnel Board’s decision based on the recommendation of the City Attorney. The court found that the City Attorney was the actual decisionmaker, and that he was biased because he was simultaneously defending the City in the federal court lawsuit brought by the discharged employee.

Bias by the post-termination decisionmaker is not cured by subsequent judicial review in state court. Clements v. Airport Authority of Washoe County, 69 F.3d 321, 332-333 (9th Cir. 1995).

Combining investigative and adjudicative functions in the same body does not violate due process unless there is proof of actual bias - such as a decisionmaker who has a pecuniary interest in the outcome or who has been the target of personal abuse or criticism by the employee. Withrow v. Larkin, 421 U.S. 35 (1975). 

Familiarity with the facts does not necessarily disqualify a decisionmaker. Hortonville Joint Sch. Dist. v. Hortonville Education Assoc., 426 U.S. 482 (1976) (School Board that conducted failed contract negotiations with teachers’ union was not disqualified from conducting termination hearing for striking teachers).

C. Who Can Be the Decisionmaker?

An impartial arbitrator. Armstrong v. Meyers, 964 F.2d 948 (9th Cir. 1992).

A school board. Romulus v. Anchorage School Dist., 910 P.2d 610 (Alaska 1996).

A municipal Personnel Review Board. City of North Pole v. Zabek, 934 P.2d 1292 (Alaska 1997).

A Police Review Board. Jurgens v. City of North Pole, 153 P.3d 321 (Alaska 2007).

A City Manager. Diedrich v. City of Ketchikan, 805 P.2d 362 (Alaska 1991).

A court. Storrs v. Municipality of Anchorage, 721 P.2d 1146 (Alaska 1986).

Under Alaska law, if an employee’s union refuses to take his case to arbitration, he has the right to seek judicial review in order to satisfy due process. Casey v. City of Fairbanks. Under federal law, the union’s refusal to take a terminated employee’s case to arbitration does not violate the employee’s due process rights. His due process rights are protected by the union’s duty of fair representation. Armstrong v. Meyers, 964 F.2d 948 (9th Cir. 1992).

D. The Standard of Proof

The decisionmaker need not find that the grounds for discharge are proved by clear and convincing evidence - even when the termination is for reasons that constitute a crime. Romulus, 910 P.2d at 618 (termination for sexual assault). Rather, the decisionmaker need only find that the grounds for discharge have been proved by a preponderance of the evidence. Id., Jurgens v. City of North Pole, 153 P.3d 321 (Alaska 2007) (allegation that police officer sexually harassed coworkers need only be proved by preponderance of the evidence to sustain discharge).

E. Right of Appeal

Under Alaska law, a discharged employee can appeal the decision to superior court, within 30 days, where it is treated as an administrative appeal (except in cases of binding arbitration). Diedrich v. City of Ketchikan, 805 P.2d 362 (Alaska 1991). The standard of review on appeal is whether the decisionmaker’s findings are supported by substantial evidence. Jurgens v. City of North Pole, 153 P.3d 321, 325 (Alaska 2007); Romulus v. Anchorage School Dist., 910 P.2d 610, 615 n.3 (Alaska 1996). However, if the employer has violated the employee’s federal due process, the employee may bring an independent cause of action in state or federal court under 42 U.S.C. § 1983. Diedrich, 805 P.2d at 368-369.  

III. Public Employee Liberty Interests

 A. At Will Public Employees Might Be Entitled to a Name-Clearing Hearing

Even where a public employee does not possess a property interest in his job, she nevertheless may be entitled to due process protection if a liberty interest is implicated. A public employee’s liberty interest in her good name and reputation is affected if she is discharged amidst public accusations that impose a stigma of moral turpitude. Wheaton v. Webb-Petett, 931 F.2d 613 (9th Cir. 1991); see also Siegert v. Gilley, 111 S. Ct. 1789 (1991).

1. The charges must impose a stigma of moral turpitude.

Charges that impugn a public employee’s reputation for honesty and morality are sufficiently stigmatizing to implicate a liberty interest under the Fourteenth Amendment. Matthews v. Harney County, Or., School Dist. No. 4, 819 F.2d 889, 891-92 (9th Cir. 1987). However, allegations of lack of competence or inability to get along with others does not impose a “stigma of moral turpitude” which is required to infringe upon a liberty interest. Roley v. Pierce County Fire Protection Dist. No. 4, 869 F.2d 491, 495 (9th Cir. 1989). In Roley, the Ninth Circuit held that allegations that may “reduce economic rewards and diminish prestige” must be distinguished from those “that may exclude one permanently from the profession or trade or interrupt employment for a protracted period of time.” Id. at 496. Only the latter are entitled to constitutional protection. Thus, in Roley, the court rejected a fire chief’s claim that he was entitled to a name-clearing hearing where he was charged, inter alia, with failure to provide leadership, poor supervision, failing to maintain morale, poor relationship with and communications with volunteer and part-time officers, and poor management. Id. at 495; see also Ulrich v. City and County of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002) (injury to reputation alone insufficient to implicate a liberty interest); Federal Deposit Ins. Corp. v. Henderson, 940 F.2d 465 (9th Cir. 1991); Melton v. City of Oklahoma City, 928 F.2d 920 (10th Cir. 1991).

2. The charge must be made in connection with termination from employment.

Injury to reputation by itself is not a “liberty” interest protected by the Fourteenth Amendment.  Siegert v. Gilley, 500 U.S. 226 (1991); Paul v. Davis, 424 U.S. 693, 708-709 (1976); Hornaday v. Rowland, 674 P.2d 1333, 1344 (Alaska 1983). However, an injury to reputation, when coupled with termination from public employment, will implicate a liberty interest. See Siegert v. Gilley; Wheaton v. Webb-Petett.

3. The employer must publicly disclose the charges.

In Fleisher v. City of Signal Hill, 829 F.2d 1491 (9th Cir. 1987), cert. denied, 485 U.S. 961 (1988), the court held that a hearing is required to protect an employee’s liberty interest “[o]nly if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination.” 829 F.2d at 1495 (emphasis supplied), quoting Codd v. Velger, 429 U.S. 624, 628 (1977). However, placing the stigmatizing information in an employee’s personnel file in a state where the employee’s file becomes a public record, satisfies the publication requirement, thus triggering the right to a name-clearing hearing. Cox v. Roskelley, 359 F.3d 1105 (9th Cir. 2004), cert. denied, 543 U.S. 924 (2004); see also Rosenstein v. City of Dallas, 876 F.2d 392, 396 n.6 (5th Cir. 1989), reh’g en banc granted, 889 F.2d 174 (5th Cir. 1989), opin. reinstated as modified, 901 F.2d 61 (5th Cir. 1990), cert. denied 111 S. Ct. 153 (1990), (citing Campos v. Guillot, 743 F.2d 1123, 1125-26 (5th Cir. 1984) (where employee demanded that hearing be open to public, there was no implication of liberty interest)); Thomason v. McDaniel, 793 F.2d 1247, 1250 (11th Cir. 1986) (newspaper coverage and town conversations concerning police officer’s termination occurred not from town’s disclosure, but from plaintiff’s filing of a complaint with the Florida Commissioner on Ethics and in federal court).

B. Elements of a Name-Clearing Hearing

Where an employee proves that his liberty interest in his good name and reputation has been stigmatized by his public employer, as outlined above, he is entitled to an opportunity to refute the charge. The purpose of the notice and hearing in such cases is “to provide the person with an opportunity to clear his name.” Codd v. Velger, 429 U.S. 624, 627 (1977), quoting Bd. of Regents v. Roth, 408 U.S. 564, 573 and 573 n.12 (1972). 

A “name-clearing hearing” serves a different purpose from a hearing designed to protect a property interest in employment. A property interest hearing is designed to serve as a check on an erroneous deprivation of one’s job. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).

1. The employee must request the hearing.
Patterson v. City of Utica, 370 F.3d 322 (2d Cir. 2004); Quinn v. Shirey, 293 F.3d 315 (6th Cir. 2002), cert. denied, 123 S.Ct. 538 (2002).

2. The hearing need not be conducted before the employee is discharged.  Id.

3. No elaborate procedures required. A name-clearing hearing (in the employment context), as the name implies, serves only to provide the employee an opportunity to clear his name. Unlike a property interest hearing, a name-clearing hearing is not conducted to review the merits of the decision to discharge the employee. Rosenstein v. City of Dallas, Texas, 876 F.2d 392, 395-96 (5th Cir. 1989), aff’d, as modified, on petition for rehearing en banc, 901 F.2d 61 (5th Cir. 1990). Consequently, numerous courts have held that a liberty interest hearing “need not comply with formal procedures to be valid.” Chilingirian v. Boris, 882 F.2d 200 (6th Cir. 1989). The employee is only entitled to an opportunity to respond to the charges and to state his case. Badon v. Koch, 779 F.2d 825, 830-33 (2d Cir. 1988); Boston v. Webb, 783 F.2d 1163, 1166-67 (4th Cir. 1986); Lyons v. Barrett, 851 F.2d 406 (D.C. 1988).

Courts have not required elaborate notice and hearing procedures for name-clearing hearings. In Rosenstein v. City of Dallas, Texas, the Fifth Circuit held that a probationary police officer’s name-clearing hearing did not include a right of review pursuant to the department’s established appeal procedures for employee grievances. Rather, the city could provide “an alternative procedure, or even an ad hoc hearing, solely for the purpose of allowing the employee to clear his name . . .” Id. at 396. In Chilingirian v. Boris, 882 F.2d 200 (6th Cir. 1989), the plaintiff’s appearance before the same city council that had attacked his professional reputation, with the right to speak at length and introduce favorable statements, was enough to satisfy the requirements for a name-clearing hearing. In Badon v. Koch, 799 F.2d 825, 830-33 (2d Cir. 1986), the court held that the Chief Medical Examiner of the City of New York was afforded an adequate name-clearing when he was given the opportunity to respond in writing to the letters that had been written attacking his professional competence, and was given the opportunity to state his case to the public in a press conference. No formal “hearing” of any type was actually conducted.

In Boston v. Webb, 783 F.2d 1163, 1166-67 (4th Cir. 1986), the plaintiff, a police officer, argued that his name-clearing hearing violated due process because he was not allowed to confront and cross-examine the witnesses against him, and the hearing officer, the city manager, was biased because he had been involved in the investigation of the charges against the plaintiff. The court rejected the claim, holding that the plaintiff was afforded all the process he was due because he was allowed to testify and present witnesses to refute the charges, and there was no evidence that the city manager was biased.