By: Loyd Willaford and Clive Pontusson
In Nagel v. City of Jamestown, a Federal Court held that even though an officer was not given complete notice of the charges against him before he was terminated, the fact that he received a full post-termination hearing meant that he received due process under the law.
Thomas Nagel was a Police Officer in Jamestown, North Dakota. Per Department policy, Nagel used Facebook under a false name. In 2013, Nagel saw a picture on Facebook of a County Deputy riding a jet ski. Nagel made an anonymous tip to a local news station, claiming that the jet ski belonged to the County and the Deputy was misusing County property. The news station interviewed him, but he claimed not to know where the anonymous tip had come from. The Jamestown Police Department occupies an office across the hallway from the office of the Stutsman County Sheriff, and following Nagel’s TV interview, relations between the two offices became tense. The incident was investigated by the City, and it came to light that the County did not in fact own the jet ski. Nagel was interviewed as part of the investigation, and he stated again that he did not know who had made the anonymous tip. The investigators determined that Nagel was lying about this, and told him so in a meeting where his attorney was present. The investigators recommended that Nagel be fired, and his termination was approved by a review board and the City Administrator. Nagel was granted a post-termination hearing before the Civil Service Commission where both he and the City presented extensive evidence. The Civil Service Commission affirmed his termination.
Officer Nagel sued the City, argued that his First Amendment right to free speech had been violated. He argued that in the TV interview he was speaking out about misuse of County property, a matter of concern to the public. He argued that his firing was retaliation for exercising his freedom of speech. Nagel also argued that he was denied due process under the Fourteenth Amendment, because he was not given adequate notice of the charges against him and not given an opportunity to properly respond before he was fired.
The City of Jamestown argued that Nagel’s TV interview was not protected by the First Amendment because it was not about a matter of public concern. They also argued that the true reason Nagel was fired was his later dishonesty in the investigation, not the TV interview itself. Finally, the City argued that Nagel had been informed three different times of the charges against him, and that he and his lawyer were well aware of how the situation was developing.
The court determined that Nagel’s free speech rights had not been violated, and by the end of the post-termination hearing, he had received adequate due process. The Court determined that Nagel was speaking on a matter “of his own concern,” during the interview. The Court also noted that when it comes to the First Amendment rights of state employees, a balance needs to be struck:
The court must consider whether the interest of the employee, as a citizen, in commenting on matters of public concern outweighs the interest of the state, as an employer, in promoting the efficiency of the public service it performs.
Here, it was quite clear to the court that the City’s interests outweighed Nagel’s. The City’s interest in its efficiency (Nagel’s interview had caused serious tension between the police and the Sheriff) outweighed Nagel’s interest as an employee (he had no protected right to the speech).
The Court also found that Nagel was denied due process before he was fired. The charges against him were not completely explained and he did not receive a pre-termination hearing. However, this violation was “cured” by the fact that Nagel was granted a complete post-termination hearing where he was able to present evidence. The Court summarized the law by saying,
We have consistently held that, where post-termination proceedings are available, informal meetings with supervisors may be sufficient pre-termination hearings.
While this rule does not mean a post-termination hearing can solve all problems with pre-termination discipline, in this case the Court was satisfied that Nagel received enough notice before he was fired. As a result, the court dismissed his lawsuit against the city.
This is a case demonstrating how the right of employees to a pre-termination hearing have become more limited over time. This hearing is called a Loudermill hearing after Supreme Court case which established the right. In Loudermill, the Court held public employee have a right to notice and an opportunity to be heard before a termination takes effect. Over the years, federal courts, including the Ninth Circuit, which covers Washington State, have held that even if the pre-termination hearing is not fair, so long as there is a fair process post-termination, no constitutional rights are violated. This seriously curtails the Loudermill right. It has the potential to be abused by employers who may issue summary letters of termination and then seek to justify their action after the fact. Fortunately, in many union contracts there is more robust version of Loudermill rights that arbitrators will enforce.
**Please visit our Premium Website, for more information on Speech That Occurs in the Workplace**
