Discipline of Public Employees — Applicable Laws
A. State Statutes
Know the applicable laws before taking certain actions to discipline public employees. Because Maine is an employment-at-will state, people sometimes forget that some protections are available for workers in the public sector that private sector employees don’t have. Title 30-A M.R.S.A. § 2601 states that, except as otherwise provided by law, charter, or ordinance, the municipal officers shall appoint “all municipal officials and employees required by general law, charter or ordinance and may remove those officials and employees for cause, after notice and hearing.” (Emphasis added)
Certain categories of public employees also have separate protections from being fired except for cause. See, e.g., 30-A 2601-A (Code Enforcement Officers), 30-A M.R.S.A. § 2671(1) (Police). There is no obvious explanation for affording extra protection to these municipal employees except perhaps more effective lobbying at the state level by their employee organizations.
Protection against being discharged except “for cause” means that the reason for termination must be substantial. Except in the most egregious cases, a municipality should follow some kind of progressive discipline procedure before terminating an employee so that it is obvious that the employee in question failed to meet his or her employer’s expectations.
In cases in which the employee is charged with serious misconduct, the employer may be reluctant to allow him or her to remain in the workplace while the allegations are being investigated. In such a case, administrative leave may be appropriate so that the employee in question is, in effect, suspended with pay until the employer is ready to make a final decision and, if necessary, conduct a hearing based on evidence collected while the employee was out of the workplace. If the employee’s pay is discontinued while the investigation is ongoing, he or she can argue that they have been fired without notice and hearing.
If staff is available, it is desirable for the employer to conduct an investigation of the charges through a Human Resources Director or a supervisor at a higher level than the one who has recommended termination. In cases in which a discharge is likely to result in litigation, the expense of hiring someone from outside the workplace to do the investigation may be warranted. The investigator should make notes regarding statements from witnesses and others who have knowledge of the circumstances so a record can be preserved for a hearing or a trial which may not take place any time soon.
Before a hearing can be held, the employee who has been threatened with discharge should be given notice of the charges against him or her. This means, at a minimum, being advised of the reasons that discharge is being proposed, as well as some indication of the evidence which would justify termination. One measure of whether the notice is adequate is whether it is sufficient to enable the employee to prepare a defense at the hearing. If evidence is presented at the hearing that the employee had no reason to anticipate, the employee would be justified in requesting that the hearing be cancelled or, at the very least, suspended until another day to allow time to muster a defense to the new evidence.
The hearing contemplated by the statute need not be a formal trial. However, it should include the presentation of evidence through live witnesses who can be questioned by the employee or their attorney and an opportunity for the employee to present evidence of his or her own which would disprove or undermine the municipality’s case.
A critical question in determining the fairness of the hearing will be the impartiality of the decision-maker. This can be difficult if it is the Town Manager who is recommending termination. However, a Town Manager can usually delegate the responsibility for making the termination decision to the municipal officers and instead act as the prosecutor. See, e.g., Quintal v. City of Hallowell, 2008 ME 155, 956 A.2d 88.
A more difficult question is presented when it is the Selectmen or Town Council who are recommending termination. Indeed, they may be the ones who will be offering evidence regarding the employee’s alleged misconduct at the hearing. In such a case, the municipal officers should consider retaining an outsider to act as a hearing officer and render a decision which they have committed themselves in advance to adopt. Hopefully, the employee in question will not object to such a procedure. Even if the employee does object, but fails to present a better alternative, it is likely that a court would uphold such a process, if otherwise fair, though it is nowhere to be found in the state statutes.
The hearing should be tape-recorded so that, if there is an appeal, a transcript can be prepared. The hearing officer should issue a written decision so that a reviewing court can determine what his or her reasoning was and whether the evidence was sufficient to support the conclusions reached. If this is done, the Superior Court Judge will make his or her decision on appeal based on the transcript and the written decision and will not take any additional evidence.
B. The U.S. Constitution
Whether or not a municipal employee is entitled to a “for cause” hearing under state law, he or she may be entitled to a less formal hearing based on a right to due process under the federal Constitution. In the case of Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 539 (1985), the U.S. Supreme Court ruled that, in any case in which a public employee has a property interest in their job, he or she is entitled to some kind of hearing before they can be fired, suspended, or otherwise disciplined in a manner which deprives him or her of substantial benefits from their employment. An employee would be considered to have a property interest in a job if a statute, ordinance, or contract protected a person from being dismissed or suspended without being given at least an informal for-cause hearing.
The due process hearing to which a public employee is entitled can be quite informal. It can consist of a statement by the employer of the reasons for the proposed discipline and an opportunity for the employee involved to tell their side of the story. See Loudermill, supra. By satisfying its obligation to provide the employee with due process, the employer will also have avoided the possibility of firing an innocent employee who could have demonstrated, if given the opportunity, that the charges were based on mistaken identity or that the proposed discipline would otherwise result in a substantial miscarriage of justice.
C. Union Grievance Procedures
In addition to their remedies under state law or the U.S. Constitution, public sector employees, if represented by a union, will ordinarily have the right to file a grievance complaining that there was no good cause for the discipline or that the discipline imposed was unfair or excessive. Virtually all union contracts include language barring discipline that is not based on good cause.
If a union employee files a grievance, he or she will usually be considered to have turned over the handling of the grievance to his union representatives. However, a municipal employee may not be precluded from pursuing a separate proceeding in state court to vindicate their rights regardless of the outcome of the proceedings under the contract. The cases are not entirely clear about when a union member will be allowed to file a complaint in state court which is also the subject of a separate grievance proceeding being pursued under the contract. In order to minimize the risk of having to fight the same case simultaneously in court and in arbitration with possibly inconsistent results, a municipal employer should try to reach an understanding with the grievant and the union early in the proceedings that the matter will proceed to a final resolution exclusively in one forum or the other. An even better solution would be to include language in the union contract that will prohibit proceeding to arbitration in any case which has also been made the subject of a court complaint.
 In the case of Farley v. Town of Washburn, 704 A.2d 347 (Me. 1997), the Law Court held that a highway maintenance worker was not entitled to notice and hearing since his position was not created by charter or ordinance. This means that every discharge case involving a municipal employee has to start with a determination of whether the employee’s position was created by local ordinance. Many are not. However, employees who are appointed by a Town Manager are entitled to notice and hearing by virtue of 30-A M.R.S.A. § 2636(14). It is puzzling that the legislature has created this disparity (perhaps inadvertently) in the protections afforded to employees appointed by Selectmen and those appointed by a Town Manager. If the municipality is in doubt about what protections the employee is entitled to under state law, the safest course is to provide notice and a hearing.
 In a surprising case decided by the U.S. District Court in January, the court ruled that a Town Manager could be the decision-maker in a case in which he had recommended termination even though he also testified as a witness. See Farris v. Poore, decided Jan. 23, 2012.
 It should be noted that a Loudermill type hearing, although sufficient for due process purposes, will not ordinarily satisfy an employer’s duty under an ordinance, charter, or state law to provide a more formal hearing on the issue of whether there is good cause to fire or otherwise discipline the employee in question.
 In the case of Quintal v. City of Hallowell, 2008 ME 155, 956 A.2d 88, the Law Court held that Quintal was barred by having filed a grievance from getting a “second bite of the apple” in state court since the case turned on procedural rather than substantive issues.
This article does not cover every legal issue that a municipality might encounter in going through employee discipline proceedings. If you are unsure about how to proceed in such a matter, you can call us at 207-784-4563.