The Rights of Police
Officers Threatened with Termination:
Loudermill's Neglected Protection

by Mike Leibig, MCOPS General Counsel

In 1985, the United States Supreme Court decided Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487(1985). The decision was heralded as a major advance in the job security rights of police officers and other public employees.

Loudermill affirms the principle that a non-probationary police officer may not be terminated; or, otherwise disciplined so as to lose significant pay or reputation, Without certain procedural steps.
These include a pre-termination notice of the charges on which the discipline is based, an opportunity to review the evidence, and a chance to respond to the charges all coupled with post-termination procedures which provide for a due process review.

Failed Promise

In practice however, things have not worked out as heralded. Most police departments do provide for a pre-termination/Loudermill procedure. They will not place an officer on disciplinary non pay status without first notifying the officer of the charges and asking, in one way or another, what the officer has to say about the charges. The courts have been clear, though, that the pre-discipline hearing need not definitely resolve the propriety of the discipline but may be only an initial determination of whether there are reasonable grounds to believe that the charges are true and support the proposed action. By assuming that all Loudermill requires is notice and an opportunity to respond, the police departments have thus generated a system in policing in which the "Loudermill hearing" is used more often as a sword against the charged officer than a shield protecting the officer's rights.

Loudermill in Practice

Here is what usually happens. The police internal affairs division prepares charges against an officer. The division does an investigation in which the charged individual is ordered to take part under threat of discipline and is required to give a statement. The internal affairs investigation results in a report sustaining or discounting the charges. If the charges are sustained, internal affairs prepares a report for the Chief of Police recommending discipline. The Chiefs office or the personnel division then notifies the officer of the charges and offers an "opportunity to respond."  The officer is informed that this is the Loudermill hearing, or its local equivalent and is a chance to give the officer's side of the story. The officer explains what happened. In later hearings, that statement is used as evidence. Often, in the final step of this process, the charges are reviewed only by the Chief.

Defects in the Process

There are two serious problems with this application of Loudermill: (1) lack of officer access to evidence, and (2) curtailment of due process rights in the post-termination process. The major defect at the post-discipline hearings in policing is that an accused officer lacks access to the evidence used to support the discipline. What too often happens in the pre-discipline stage is that the officer's exercise of this right to respond becomes the sole evidence. One method of dealing with this problem comes at the beginning of the process when an officer is informed of charges that could result in discipline, told of the right to respond, and informed of the entitlement to a
pre-discipline Loudermill hearing. . The officer should ask for a specific description of the grounds and the charges, as well as for a summary of the evidence on which they are based The officer should insist that the information is necessary to make an informed response to the charges. Also, the officer should preserve a record of any refusal to provide this evidence.  Furthermore, the officer should condition any response on a clear understanding that it will not be used as the evidence on which charges will be based in the future.

If the officer cannot gain such assurance, if the charges are serious, and if the officer wants to protect the possibility of challenging any discipline, the officer should consider refusing to respond.

Alternatively, if a summary of the charges is provided along with a summary of the evidence on which the charges are based, the charges must be reviewed on the basis of the outlined evidence -- not on evidence subsequently developed from the officer as part of the response.

Due Process Shortcomings

The second major defect in the Loudermill procedures is a due process problem. The pre-discipline rights outlined in Loudermill were limited on the basis that full due process rights would be forthcoming during the post-termination period. Yet, many departments do not implement procedural protections.

The due process rights in Loudermill included:

Notice of charges. Nearly all departmental discipline systems provide such notice.

A statement of the grounds for the charges and the supporting evidence. Some systems provide a description of the grounds, but many do not give the charged officer access to the supporting evidence. Few give the officer access to the evidence prior to demanding that the officer give evidence. In most cases of serious discipline, the evidence on which charges are
sustained is based on the officers own statements given prior to that officer's access to the evidence.

Right to respond. This right is usually given, but as mentioned, the response is required prior to gaining access to evidence of the charges and then often becomes the central basis of the evidence against the officer.

The right to call witnesses. This right is usually allowed at least in part in the post-hearing stage. Typically, however, the officer's right to call witnesses - and finance or compel their testimony - is more limited than that of the department.

Right to Counsel. Representation by counsel is usually, but not always, allowed.

Unbiased trier of fact. This is often given in states with collective bargaining but denied elsewhere. In too many departments, the same person who must initially approve the decision is also the authority of final review.

Record. A record is not always made of such proceedings.

Judicial review. This is not always available. In many jurisdictions, the law is unclear on this point. The implications of this review are important. When full due process is not available in the post-discipline stage, the Supreme Court's decision in Loudermill would indicate that more than  notice, a right to review the evidence, and a right to respond is due in the pre-discipline stage. A serious Loudermill issues arises when one or more elements of full due process is denied at both stages of the discipline review.

Conclusion:

If used properly, Loudermill could still become the tool of increased due process and job protection it was originally thought to be.