EMPLOYEE RIGHTS

Due Process 101

A recent decision from the Vermont Supreme Court on a professional licensing issue initially appears to be of limited applicability. But a closer look serves as a reminder that in deciding employment-related cases, the court almost always comes back to the fundamentals of due process: notice and an opportunity to be heard.

Not your average trip to the principal's office

JH (as she is referred to in the court's opinion) was the principal of an elementary school in St. Johnsbury. Informed that one of her eighth-grade students had been receiving anonymous death threats, she apparently surmised that a seventh- grade student, identified as MT, was responsible for the threats. She therefore called MT into her office for questioning.

Not satisfied with an old-fashioned admonition about the importance of telling the truth to the principal, JH invited several uniformed police officers to join her for a two-hour interrogation session with MT. (There's no mention in the opinion that the student's parents were ever invited to attend the meeting.) But MT didn't own up to making the threats.

The next day, when JH learned of a "suicide note" MT had written several months earlier, she called the girl in for another interview and said she wanted her to undergo a mental health evaluation. Although the police apparently weren't present during this interview, JH was overheard yelling at MT and using profanity. MT eventually confessed to the death threats (but later recanted her confession).

That sounds like reasonable grounds for a license suspension, doesn't it? Vermont statutes prohibit conduct by a licensed educator that potentially places a student "in physical or emotional jeopardy." The school superintendent apparently thought so when she notified the state Department of Education about the incident. And the department apparently thought so when it notified JH that it was commencing an investigation.

The commissioner subsequently notified JH that he was recommending a five-month suspension of her license and imposing certain conditions for reinstatement, including a mental health assessment. Since JH's license was also up for renewal, the commissioner indicated that the renewal would be held in abeyance until the conditions were met. JH challenged the license suspension and the conditions.

Labyrinthine appeal

Without getting into the administrative (bureaucratic?) complexity of the appeals process through investigative fact-finding, recommendations, evidentiary hearings, and cross-appeals by both parties, suffice it to say that the process took many months and extended well beyond the recommended five-month license suspension. During that time, the state board responsible for licensing educators declined to issue JH a renewed license, even though the governing statute mandates that when it's up for renewal, a license continues in effect until the licensing board makes a final determination about whether the renewal will be granted.

Nearly a year after the incident that led to the complaint, the state Board of Education finally held an evidentiary hearing. It then determined ― 14 months after she was notified that a license suspension was being recommended ― that JH had engaged in professionally incompetent conduct that had the potential to put a student in emotional jeopardy. Concluding that a five-month license suspension was an appropriate sanction, the board imposed the suspension retroactively to a date approximately five months before its decision was issued. JH appealed to the Vermont Supreme Court.

Supreme court's decision

Without ever addressing the question of whether a school principal who interrogates and intimidates a seventh grader in the presence of uniformed police officers should, in the abstract, be licensed as an administrator, the supreme court overturned the Board of Education's decision. The court didn't find fault with the factual findings, but in the administrative missteps that occurred along the way.

The statutes applicable in this case provide that a professional license cannot be suspended or revoked without a hearing at which the license holder has an opportunity to present evidence and arguments on her own behalf. While the Board of Education held such a hearing in this case, the principal's license was in limbo for the 14 months it took the matter to reach the board and result in a decision. In the meantime, the Department of Education had declined to issue a paper license, although it acknowledged that JH was still listed in its database as "licensed." The court said that wasn't enough.

By now, the law considers a professional license to be a "property right" that cannot be taken away by the state without due process of law ― and due process, in the end, always comes down to "notice and an opportunity to be heard." Notice means advance notice of the charges or the reasons the license is in jeopardy. An opportunity to be heard means a forum ― usually a hearing ― in which the person facing sanctions can present her side of the story to an impartial arbiter before adverse action is taken.

While the Department of Education has a procedure for immediate temporary suspension of a license in emergency circumstances, that procedure wasn't invoked in this case until many months after JH's requests for renewal or reissuance of her license had gone unanswered. The court found the request for emergency suspension inadequate because JH's license had effectively been suspended for a year before the attempt to invoke the emergency procedure.

Remind me how this applies to other employment cases

OK, the state Board of Education messed up in a licensing matter when it delayed consideration of a recommended license suspension. But how does that relate to the situation faced by a private employer dealing with an employee's less-than- professional conduct? Simply put, when jobs are at stake ― and a professional license is, after all, one form of a ticket to employment ― Vermont courts are heavily invested in ensuring that employees are given a fair shake. And a fair shake, in most circumstances, amounts to nothing more than notice and an opportunity to be heard, or "due process" in its most basic form.

The process due any particular employee will depend on the nature of the relationship between the parties. State employees are covered by statutes that define hearing procedures and avenues of appeal. Employees of private companies may have employee handbooks or collective bargaining agreements that lay out their disciplinary procedures. And as we've discussed in past issues, even employees who are theoretically "at will" may be protected against employer "bad faith" to the extent that decisions made without discernable reason, or an opportunity for them to be heard, will be questioned as pretext for unlawful discrimination of one sort or another. In re Licensing Appeal of J.H., 2008 VT 97 (July 18, 2008).

Bottom line

The best defense is almost always a good offense. If you intend to take disciplinary or other employment action against an employee, make sure you've laid out your expectations and criticisms in advance, and give her an opportunity to defend herself ― to try to persuade you that the outcome should be different. You won't lose anything by doing that, and you'll gain an advantage by acting in a manner that will later be perceived as fair. And fundamental fairness is, after all, the driving principle underlying all of our notions of due process.