By: Attorney Benjamin Taylor, Attorney at Law

The protections that the civil service workers within the City of Cleveland enjoy are not great in number. However, where a right does it exist, it is quite definite in its meaning. Civil service is not a developing area of law, still in flux within the courts, and considered open to interpretation on the broader points. It is mostly very settled, and not what you would call a greatly changing body of law at all. One of the bedrock principles of a civil servant’s rights is the concept of “due process”.

Broadly, the idea of due process with respect to civil servants is that a civil servant is deemed to have a property right in their continued employment. This property right may not be deprived unless adequate procedures are first observed. The obvious question then becomes, knowing now that public employees do have this constitutionally guaranteed property right, what exactly would amount to an adequate procedure that the government must observe?

A core tenet of due process is that the aggrieved must receive notice and an opportunity to respond. Although the language may not make it obvious, this is the source of your right to have a pre-disciplinary hearing. The United States Supreme Court made it clear in a landmark decision over 30 years ago (Cleveland Board of Education v. Loudermill, et al.) what exactly the due process guarantees of notice and an opportunity to respond involve. The “notice” requirement means that a public employee has the right to specific written notice of the allegations against them, and an explanation of the evidence. The reason for this is that the notice must be effective to the extent that it permits the employee to compose a meaningful response. The notice involved in step one is in place for the purpose of facilitating an effective step two, the opportunity to respond.

The phrase “an opportunity to respond” amounts to a public employee’s right to a hearing where they are able to present their side of the story, correct any factual mistakes, and address the type of discipline being considered. Based on this, it should also be clear why the notice component is so crucial, and why it must first be fully provided. The opportunity to respond can only be as meaningful as the notice given prior to the hearing. Without a fully effective notice, containing all of the requirements listed above, an employee is walking blind into an still unknown meeting with no ability to prepare a defense or functionally respond at all.

Imagine you play for the Cleveland Cavaliers. The season has 82 games, then the playoffs. You know all the rules being emphasized before the season starts, you know your team’s schedule and when the playoffs start, and everything else that goes along with being a pro basketball player. Then, on some random Wednesday morning when you walk into the practice facility, the Golden State Warriors and the NBA commissioner are standing at center court, and tell you that this season’s championship is happening right then, on the spot. The commissioner tells you that he’s very sorry you just played another team the night before and haven’t had a chance to prepare at all, but he has decided to hold the championship contest right now. The Warriors have been watching film, studying your team, and are ready to bring their best against you. When the game is played, the commissioner informs you, the Warriors also get to take twice the normal number of free throws. Even though the Warriors are a tragically inferior team, they stand a much better chance of prevailing in this game.

This demonstration shows exactly how catastrophic it would be for either you or the Cavs to get blindsided by not being provided effective notice. The notice requirement guarantees that you are not roped into a kangaroo court, where you stand no real chance of providing an effective response. The Cavs get to know what team they’re playing, how they play and what their weaknesses are. You get to know what the City thinks you did, what the facts that back it up are, and an explanation of how that conclusion is being reached.

In addition, the Cavaliers wouldn’t really get a meaningful chance to play against the Warriors in this game. The Warriors being granted extra free throws almost makes playing the game pointless. Why bother holding the game, if it’s not really going to provide a meaningful chance for the better side to win? On the contrary, for NBA Finals games only the most experienced and skilled referees get to call the games. The games are called evenly and fairly, so that the players’ skills decide who is the champion. In that exact same way, you are guaranteed the right to provide a meaningful response to the allegations the City has notified you about. You may address the facts the City is mistaken about, comment on the fairness and type of discipline being considered, and state your side of the story in whole.

All of this taken together takes a public employee from the charging letter/notice of pre-disciplinary hearing, and through the pre-disciplinary hearing itself. If you have been through this process before, perhaps now you understand the answer to why everything happened in the way and order that it did. It’s my hope that with this letter, you are a more empowered public employee. The more public employees that know their rights, the more the City has to actually listen and respect those rights.

Sadly, these requirements are poorly followed by the City. No amount of my protesting and arguing otherwise has compelled the City to follow the strictures as outlined by the law. Surely, if City managers, HR, and labor relations workers persist in their failure to abide these rights, justice will eventually be reached. But the road to that justice can sometimes be long, and it forces good public employees to suffer in the meantime. So read this letter, pass it along to co-workers, and leave it by the coffee machine. If you are reading this and are not a member of the Cleveland Civil Service Employees Association, we need your voice along with ours to make the City listen.