What is due process?

Public servants have specific employment rights, and violating them can result in lawsuits, attorneys say

gavel tile court tile jury tile judge tile
gavel tile court tile jury tile judge tile

Some people may have heard the phrase "due process" on TV courtroom dramas or in human resource offices. But a 1985 U.S. Supreme Court case gives more insight into what it really means and how it applies to Hamilton County Sheriff Jim Hammond and a detective at the center of a arrest that went viral.

Public employees facing termination possess legal protections that employees in the private sector don't, partly as a result of Cleveland Board of Education v. Loudermill, a case that started in one of Ohio's federal courts in the 1970s, and other civil service laws. If governments don't follow those protections, public employees can sue them for monetary relief. And in Hamilton County, former employees have done just that, and received settlements, in two high-profile cases in recent years.

"It's a powerful section of constitutional law, and if [government entities] don't follow the process properly, you can get in some legal trouble," said Chattanooga attorney Robin Flores, who represented a former local firefighter in one of those cases.

The discussion about due process comes amid a disagreement among some community members who want detective Blake Kilpatrick to be fired immediately for his role in the viral Dec. 3 arrest of Charles Toney Jr. and others who want the appropriate legal process to play out.

"What's clear, from the very first day I talked to the sheriff, is we want him fired," said Elenora Woods, president of the Hamilton County-Chattanooga NAACP. "But there is a thing called due process."

Hamilton County Commissioner Warren Mackey made similar comments during a meeting last month. A day later, Hammond suspended Kilpatrick with pay amid a Department of Justice investigation into the arrest. Hammond said he believed a video capturing part of the encounter was horrendous, but added all evidence should be considered and that due process is "extremely important."

An update from the Justice Department is expected in the next 30 days or so, and more information about the full circumstances surrounding Toney's arrest is expected soon.


What is due process? And how does it factor into a public employees' suspension or termination?

The words "due process" come from the 14th Amendment to the U.S. Constitution, and the phrase means the government cannot deprive a citizen of their property or liberty without first providing them an opportunity to be heard and defend themselves. The Loudermill case, which worked its way to the U.S. Supreme Court in 1985, helped give public employees more due process rights by linking their employment with property.

"The idea behind [Loudermill] is an employee who has worked for a government entity has a property interest in their job, and that's what gives it a constitutional protection," said Chattanooga attorney Lee Davis. "A private employee, they don't have that, especially in Tennessee, which is an at-will state."

What it also means is, if a government entity wants to fire one of its employees, it first needs to give them an opportunity to explain their side of the story. The government doesn't need to hold a trial beforehand, but it needs to tell the employee in a letter what they're accused of doing wrong and arrange a hearing for them.

At the Hamilton County Sheriff's Office, Hammond often will have discussions with employees facing possible termination with a court reporter and county attorney present, according to a lawyer who has frequently represented people in that situation. The county also has a civil service board that oversees the rules and procedures of hearings and investigations, which is common in bigger cities across the state.

Sheriff's spokesman Matt Lea said no hearing notification has been sent to Kilpatrick, and administrators are waiting on an internal affairs investigation to finish before taking any action.

"In most cases, the [sheriff's office] waits till the results of the investigation are made known," Lea wrote in an email.

This process is designed to give public employees a fair shake and to insulate governments from liability, attorneys said. And though nothing prevents an administrator from quickly firing a public employee, attorneys said, the government tries to operate with caution because mistakes can lead to lawsuits.

Davis said there are a few common errors: "If the [administrator] says you're being accused of unbecoming conduct of an employee, that may not be enough notice because that's very subjective. That could be anything from cussing to someone seeing you in a bar. So vagueness is a problem. And sufficient time is another problem. It doesn't have to be a lot of time, but it has to be meaningful time. You can't give [an employee] a notice at 9 a.m. and say the hearing is at 10 a.m."

If the government made one of those mistakes with a public employee who was suspended without pay, that also could result in a legal claim, since it affected their property, Davis said.


Other issues can arise, too.

When Marvin Nicholson Jr. was arrested in 2006 in a murder case in which he was later acquitted, the senior firefighter couldn't post a $450,000 bail. In a lawsuit filed in 2007 in Chattanooga's U.S. District Court, Nicholson accused the city of Chattanooga of violating his due process rights because superiors wouldn't let his wife conduct the hearing on his behalf or move the hearing to the Hamilton County Jail. Instead, superiors fired Nicholson and denied him the hearing, said his attorney, Flores, who cited Loudermill in court briefs.

After it couldn't get the case dismissed, the city settled by paying Nicholson a years' worth of his old salary, Flores said.

In 2013, then-Chattanooga officers Sean Emmer and Adam Cooley also cited Loudermill when they sued the city in U.S. District Court, alleging that now-retired Chief Bobby Dodd violated their due process rights when he fired them over the 2012 arrest of Adam Tatum. An administrative judge gave both officers their jobs back after three days of hearings, while Tatum sued the city and eventually received $125,000 related to his injuries, including a broken tibia.

Among other things, Emmer and Cooley's attorneys argued Dodd referenced an excessive force policy violation that internal affairs investigators cleared them of. They said Dodd wrote that the officers faced suspension without pay when ultimately they were fired, and withheld from Emmer and Cooley a critical report that a Chattanooga police captain used against them during a later hearing.

According to court documents, Dodd countered that his policy violation claim was based on one of the officers kicking Tatum once the arrest was finished. The federal case ultimately was dismissed after the city agreed to pay $88,000 total to the two officers, the Times Free Press previously reported.

Contact staff writer Zack Peterson at zpeterson@timesfreepress.com or 423-757-6347. Follow him on Twitter @zackpeterson918.

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