Many, perhaps most, law enforcement officers in North Carolina are at will employees. As the saying goes, they may be fired for any reason or for no reason. But when such an officer is fired for malfeasance, and that reason is made public such that potential future employers may be aware of it, the officer may be entitled to a “name clearing hearing” at which he or she can dispute the basis for the termination.
A key Supreme Court precedent in this area is Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972). That case involved a professor, not a police officer. The professor was hired by a public university in Wisconsin for a one-year term. When the term expired, it was not renewed. The university offered no reason for the non-renewal, and the professor was given no opportunity to contest it. He sued, alleging that due process required that he be given a hearing at which he could rebut whatever concerns led to his nonrenewal. The lower courts agreed, but the Supreme Court reversed. The professor wasn’t tenured, and he wasn’t fired in the middle of his term. He just wasn’t renewed, and he had neither a liberty nor a property interest under the Due Process Clause in future employment with the university. However, the Court said, things would be different if the university had made a “charge against him that might seriously damage his standing and associations in his community,” such as an allegation of “dishonesty or immorality.” In such a case, “due process would accord an opportunity to refute the charge,” i.e., would require that the employee be given an opportunity to clear his name. See also Codd v. Velger, 429 U.S. 624 (1977) (referencing “the hearing required where a nontenured employee has been stigmatized in the course of a decision to terminate his employment”).
Subsequent cases have made clear that what is at stake in such a case is the employee’s liberty interest in future employment. Fourth Circuit law provides a right to a name clearing hearing when a government employer:
- Makes statements available to the public and/or future employers
- That stigmatize an employee’s good name and reputation
- In connection with the employee’s termination or demotion
- That the employee contends were false
See generally Sciolino v. City of Newport News, Va., 480 F.3d 642 (4th Cir. 2007).
It is not uncommon for a law enforcement officer to be fired under circumstances that at least arguably meet these criteria. A recent illustrative case is Cannon v. Village of Bald Head Island, North Carolina, 891 F.3d 489 (4th Cir. 2018). In that case, a city fired four officers who exchanged text messages that city officials viewed as at least disrespectful and perhaps insubordinate or even sexually harassing. The reasons for the firings were set forth, somewhat inconsistently, in (1) termination letters given to the officers and subsequently released to local media as public records, (2) an email sent to all city employees explaining the situation, and (3) paperwork submitted to the North Carolina Criminal Justice Education and Training Standards Commission, the state entity that certifies police officers. The officers sued, contending among other things that they were entitled to a name clearing hearing. The defendants sought summary judgment on the basis of qualified immunity, but the district court and the Fourth Circuit disagreed. Notably, the Fourth Circuit appeared to conclude that simply placing the termination letters in the officers’ personnel files rendered them potentially available to future employers and so satisfied the first criterion listed above.
As Cannon shows, when an officer is fired for malfeasance, that will often be memorialized in some way. At a minimum, when a police officer is fired, the agency must submit a form to the Criminal Justice Standards Commission setting out the reason for the termination. See 12 NCAC 09C .0208. The form (numbered F-5B and entitled Affidavit of Separation) asks the agency whether the officer has recently been investigated for criminal activity or misconduct, and if so, to describe the circumstances in detail. Future employers may be able to access the form, either with the officer’s consent or under G.S. 160A-168(b)(11) (making certain information regarding disciplinary dismissals public) or G.S. 160A-168(c)(5) (allowing public officials to inspect personnel files when “necessary and essential to the pursuance of a proper function of the inspecting agency”). This situation at least raises the question whether a name clearing hearing must be provided when the contents of the form, or other information placed in the officer’s file, call into question the officer’s integrity.
There is a substantial body of case law concerning name clearing hearings, with significant nuance and complexity. Among the wrinkles to be aware of are the following:
- Not every negative evaluation of an officer’s performance entitles the officer to a name clearing hearing. Generally, such hearings are required when an officer’s honesty and integrity are impugned. Merely finding that an employee is incompetent is not enough to require a name clearing hearing. See Robertson v. Rogers, 679 F.2d 1090 (4th Cir. 1982).
- The format of the name clearing hearing is flexible and it need not have the level of formality associated with a court proceeding. See generally Chilingirian v. Boris, 882 F.2d 200 (6th Cir. 1989) (stating that a hearing “need not comply with formal procedures to be valid”). Thus, in Miller v. Metrocare Services, 809 F.3d 827 (5th 2016), the court ruled that a terminated employee was not entitled to confront and cross-examine the witnesses against him at a name clearing hearing, though other courts have found otherwise in some circumstances. Some agencies allow an officer to submit a written statement detailing any objections the officer has to the basis for his or her termination. It is not likely that such a procedure would be an adequate substitute for a name clearing hearing, but if used in conjunction with a hearing it may provide a useful means of memorializing the officer’s contentions.
- A name clearing hearing is typically conducted by a representative of the employer. For example, in Harrell v. City of Gastonia, 392 Fed. Appx. 197 (4th 2010) (unpublished), the Fourth Circuit ruled that a police officer received sufficient due process when the city manager held a hearing to address the officer’s claims that the reasons for his termination were false.
- Some courts have held that a name clearing hearing must be public, at least if the employee so requests. See Gunasekera v. Irwin, 551 F.3d 461 (6th 2009) (“[W]here, as here, the employer has inflicted a public stigma on an employee, the only way that an employee can clear his name of the public stigma is through publicity.”).
- A majority of the federal courts require that an employee demand a name clearing hearing before he or she can sue for lack of one. In other words, the initial burden is on the employee to ask for a hearing, not necessarily on the employer to provide one. See, e.g., Winskowski v. City of Stephen, 442 F.3d 1107 (8th 2006) (“Nothing in our jurisprudence suggests that a government employee can legitimately sue for deprivation of the right to a post-termination hearing where he never asserted the right before suing for damages.”); Bledsoe v. City of Horn Lake, Miss., 449 F.3d 650 (5th Cir. 2006) (concluding that the plaintiff’s “undisputed failure to request a hearing defeats his liberty interest claim”); Quinn v. Shirey, 293 F.3d 315 (6th Cir. 2002) (stating that “Plaintiff was required to show that he requested a name-clearing hearing and was denied that hearing”).
- The terminated officer has no right to be reinstated regardless of how the hearing unfolds. It is the nature of at will employment that the employee has no protectible interest in continued employment. It is not even clear that the employee has a right to a revision or correction of the stated reasons for termination. It may be that the hearing itself – the opportunity to tell the employee’s side of the story – is the extent of the employee’s entitlement.
My colleagues who are experts in employment law regularly advise public employers that if a terminated employee wants a name clearing hearing, an employer should err on the side of providing it. Given how little a name clearing hearing seems to require, and the litigation risk of not providing one, that seems like sound counsel.
Finally, a frequently-asked question is whether an officer who is the subject of a Giglio letter – for example, a letter from a prosecutor stating that the prosecutor believes that the officer is dishonest and advising the officer and his or her agency that the prosecutor will decline to call the officer as a witness in future cases – has a right to a name clearing hearing. I’ll offer some thoughts on that in my next post.