Vol. 26 No. 18- Public Employees are Entitled to Pre-Disciplinary Due Process

                                                             CLIENT ALERT MEMORANDUM

To:                 All Police Chiefs and Sheriffs

From:             Martin J. Mayer, Esq.


August 9, 2011

The Ninth Circuit U.S. Court of Appeals held, in the case of Walls v. Central Contra Costa Transit Authority (CCCTA), that a permanent public sector employee must be provided with procedural due process before being terminated from employment.

Walls was a bus driver for the CCCTA and was terminated from employment. Subsequently, he was reinstated, pursuant to a settlement entered into during the grievance process, which included a Last Chance Agreement. However, the very next day he incurred an unexcused absence which violated the Last Chance Agreement and he was terminated without any further hearing.

He sued claiming, among other things, that CCCTA violated his due process right to a pre-termination hearing under the California and United States Constitutions. The trial court held that Walls had waived his right to a post-termination hearing because the Last Chance Agreement concludes that non-compliance with the stipulations [of the Last Chance Agreement] will result in [his] immediate and final termination.

Rights of Public Sector Employees

The Ninth Circuit stated that, in California, at-will employees are those who can be fired with or without cause, subject only to limits imposed by public policy. However, public employees who may be dismissed only for cause possess a property interest in their continued employment. Since Walls was not an at-will employee, he had a property interest in his job, and it could not be taken absent providing due process procedures.

Due process requires that any deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case. In California, this is referred to as aSkelly hearing or conference, after the California Supreme Court decision in Skelly v. State Personnel Board, 15 Cal. 3d 194 (1975).

The Ninth Circuit held that, at a minimum, these pre-removal safeguards must include notice of the proposed action, the reasons therefore, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline. Skelly expressly notes that post-removal safeguards alone do not satisfy due process requirements . . . . (Emphasis added.)

CCCTA argued that Walls became an at-will employee as a result of signing the Last Chance Agreement, however, the Ninth Circuit disagreed. Nowhere does the Agreement expressly state that Wells was relegated to at-will employment status, nor does it allow CCCTA to terminate him without any cause.

Waiver of Due Process

CCCTA argued that Walls had waived his right to a pre-termination hearing by entering into the Last Chance Agreement, but the Court said that the Last Chance Agreement contains no express waiver of a pre-termination hearing or of the right to due process pursuant to a termination decision.

Additionally, because the Agreement requires him to waive the post-termination grievance process, it is logical for Walls to have assumed that, absent an analogous waiver, he would be afforded pre-termination safeguards. (Emphasis in original.)

The Court also held that federal courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights. Such a waiver should not be implied and should not be lightly found. Waiver of a constitutional right must be knowing and voluntary.


This case reinforces what has been law for many years namely, that a permanent, as opposed to an at-will, public sector employee has a property right to his or her job, and property cannot be taken by the government without first providing due process. Both state and federal courts have held that such persons must, at a minimum, have the opportunity to be heard before being deprived of his property interest.

The instant case involved the taking of Walls employment, but the law applies to the taking of any property from the permanent employee. As such, a term of suspension, which involves the loss of salary, would require pre-deprivation due process, as well.

A written reprimand, on the other hand, which does not involve the taking of property, does not require those due process protections be applied before issuing the reprimand.

It is important to confer with your agencys attorney to seek legal advice and guidance when confronted with legal issues.

If you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 1400 or via e-mail at mjm@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship