In a dispute with the backdrop of a modern-day soap opera – a police chief, a superintendent with a "personal vendetta," an indictment, and, of course, a lawsuit – the Southern District of Texas in Washington v. Burley et al. has provided a friendly reminder that you cannot undo the hands of time when it comes to pre-termination hearings.
Washington joined the LaMarque ISD police force in 1992 and was promoted to chief three years later. Washington alleged that all was well until a new superintendent arrived on the scene in 2006. Per Washington, the new superintendent was on the lookout for any excuse to kick him to the curb.
The Indictment
Disagreements continued for years between the chief and the superintendent. Then, the Galveston County District Attorney's Office became involved after the superintendent made a report that Washington gave false information on an application for a mechanic's lien on a vehicle. Washington was subsequently placed on paid administrative leave, and (some two months later) a felony indictment was returned against him. Months later, the assistant superintendent notified Washington that he was being recommended for termination to the Board of Trustees due to the indictment and invited him to contact his legal counsel to discuss his options before the official recommendation was made.
As promised, the assistant superintendent did indeed recommended Washington's termination. The Board meeting was open to the public per Washington's request. But then came the kicker – Washington was not allowed to speak at the Board meeting. Thus, without hearing from Washington, the Board voted 4-3 in favor of not only of accepting the recommendation to terminate Washington's employment but actually terminating Washington's employment without any opportunity for him to be heard.
The Post-Termination Hearing
After the Board's vote, the assistant superintendent informed Washington that he could request a hearing before the Board, which he did. Voting along the same lines as before, a motion to reinstate Washington failed, and his termination remained. Washington did not appeal the decision to the Commissioner of Education or to state district court. Notably, all criminal charges against Washington were dismissed after a new district attorney took office.
The Lawsuit
Washington subsequently filed suit against the district and district personnel for, among other things, violating his procedural due process rights under the Fourteenth Amendment. Both the district and Washington subsequently filed motions for summary judgment. With respect to pre-termination due process, Washington contended his rights were violated when the district failed to provide him an opportunity to defend himself prior the Board's vote to terminate him.
In a "turn back the clock" argument, the district contended that had Washington merely appealed to the Commissioner, he may have won an order vacating the termination and remanding the case back to the Board, where his employment may have been reinstated. Thus, had he exhausted his administrative remedies, the district argued that any inadequacy in the process could have been remedied post-termination, and, in essence, would have resulted in a no harm, no foul situation.
Rejecting the could've-would've-should've scenario, the court explained that "the only meaningful opportunity to invoke the discretion of the decision maker is likely to be before the termination takes effect." The court explained that simply because post-termination appeals were available, the fundamental right to pre-termination due process does not become a mere option. The court denied summary judgment, leaving for a jury to decide if the opportunity to provide a written response prior to the board meeting provided sufficient due process.
The Washington case serves as a friendly reminder that governmental entities must provide an employee with an adequate opportunity to present his side of the story to the final decision maker before termination. While teachers are given these rights through the procedures outlined in Chapter 21 of the Texas Education Code, districts may be wise to enact similar procedures for other employees, whether on a different type of contract or at-will. Even a short, informal opportunity to present his side of the story may be enough to avoid a lengthy and expensive trial.
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