A random and unauthorized manner of terminating an employee does not automatically mean that an employee who is the victim of such treatment has a valid claim under federal law for a violation of his rights.

Ronald Michalowicz had worked for the village of Bedford Park, Ill., as a firefighter for 17 years and as a fire inspector for 11 more when he was diagnosed with tongue cancer. While he was on a leave of absence for treatment from March 2004 to January 2005, two of his coworkers began soliciting donations from local individuals and businesses to assist him with his medical expenses; they did this with the mayor's approval. The campaign was quite successful, raising approximately $25,000, which was put into a special fund dedicated to paying Michalowicz's medical bills.

Shortly after Michalowicz's return to work, he received a letter from Fire Chief Sean Maloy informing him that he was under investigation on suspicion of having “accepted gifts of cash and/or property from businesses or individuals associated with businesses that are subject to fire inspection” and having “failed to appropriately and adequately inspect facilities and properties.” On Aug. 20, 2005, he received another letter, this time informing him that Maloy planned to recommend his termination at an upcoming village board of trustees meeting five days later. This notice was accompanied by a document listing the charges against Michalowicz and the statute and ordinances he was alleged to have violated.

Michalowicz attended the board meeting with his attorney, who was allowed to make a statement on Michalowicz's behalf but was not allowed to present any witnesses or evidence. Neither Maloy nor the village attorney presented any evidence or witnesses against Michalowicz. The meeting was simply adjourned after the statement by Michalowicz's attorney. The board reconvened on Sept. 1, 2005, and summarily terminated Michalowicz.

Shortly thereafter, Michalowicz received notice that he was entitled to a post-termination hearing in accordance with Section 1-18-8 of the village's municipal code. That hearing was held on April 5, 2006. Although section 1-18-8 required the hearing to be held before an independent employee relations committee, it was instead conducted — over Michalowicz's objection — by the village board of trustees. At this hearing, Michalowicz was permitted to present evidence and witnesses contradicting the village's allegations and to cross examine the witnesses against him. Nonetheless, the board upheld Michalowicz's termination.

Michalowicz sued in federal court under 42 U.S.C Section 1983, alleging violations of his right to due process under the 14th Amendment. First, he argued that his pre-termination hearing was inadequate because it failed to comply with constitutional requirements of notice and opportunity to respond. Second, he claimed that his post-termination hearing was inadequate because it was held before the same biased village board as his pre-termination hearing. In his pre-termination claim, he specifically alleged that he “was not permitted to present evidence or to call witnesses; was not provided with any indication of the specific evidence against him, nor given a list of the village's witnesses nor the names of any complainants; was not permitted to conduct any discovery [before, during or after]; nor was [he] provided with any other procedural safeguard to which he was otherwise entitled.”

The U.S. District Court dismissed his complaint for failure to state a claim for which relief could be granted. In doing so, it characterized his case as challenging only the failure to follow governing ordinances and statutes, rather than challenging the constitutionality of the procedures provided in the ordinances or statutes themselves. This result may seem surprising, since the court said that the village's alleged failure to follow the applicable law was “random and unauthorized.” However, the court pointed out that since such conduct is inherently unpredictable, the state's obligation under the due-process clause is only to provide sufficient remedies after its occurrence, rather than to prevent it from happening. Since the court concluded that the remedies found in the Illinois Administrative Review Act were adequate to deal with such random and unauthorized acts in his state court action, it held that no due-process violation had been stated. Michalowicz then appealed this decision to the U.S. Court of Appeals in a case entitled Michalowicz v. Village of Bedford Park, et al., No. 06-3857, U.S. Court of Appeals for the Seventh Circuit (2008).

The appeals court began its review by stating that a procedural due-process claim must include:

1. The deprivation of a protected interest and

2. Insufficient procedural protections surrounding that deprivation.

The court went on to say that because the relevant constitutional question is whether sufficient state law protections exist, not whether sufficient protections were afforded, a complaint does not state a valid procedural due-process objection if it does not include a challenge to the fundamental fairness of the state procedures.

The court said that it was undisputed that Michalowicz had a protected property interest in his continued employment as a tenured village fire inspector, therefore the first requirement was met. Rather, the court's concern focused on the second consideration, whether Michalowicz was afforded the procedural protections he was due — both pre- and post-deprivation — when he was terminated. The court first addressed Michalowicz's claim that his post-termination hearing did not afford him with due process.

Michalowicz did not allege any inadequacy in the procedures set out in the village's municipal code which governed his post-termination hearing. Instead, he claimed that he was denied due process because the village allowed the board of trustees — which he maintained was biased against him — to conduct his hearing instead of an independent employee relations committee as the municipal code required.

The court concluded that the relief that Michalowicz sought — an independent review of his termination and whether the village board was biased or failed to follow the prescribed procedure in connection with his termination — fell squarely within the ambit of the act, both through the state court's own review of the administrative record and through its authority to remand for rehearing. Because the act provided adequate remedies under state law for the alleged violation of existing procedural requirements, Michalowicz had not stated a federal due-process claim arising from his post-termination hearing.

The court then went on to review Michalowicz's claim regarding his pre-termination hearing. The court said that although the scope of the right to a pre-termination hearing is dependent on the adequacy of post-termination remedies, an independent right to a pre-termination proceeding does not exist in this context. In other words, when adequate post-termination proceedings exist, a pre-termination hearing need only provide “an initial check against mistaken decisions — essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” If there is the opportunity for full administrative review once a termination decision has been reached, the pre-termination hearing can be somewhat truncated.

Michalowicz first argued that he was entitled to a full panoply of protections pre-termination because the post-termination process guaranteed by the village municipal code was not available to union members like himself. He said that the code provided that a post-termination hearing before an independent employee relations committee was available “only to non-union employees,” and further stated that “the terms and conditions of a collective bargaining agreement shall govern all disciplinary matters involving union employees.” The court said that it was only on account of alternative protections in his union contract that Michalowicz might have opted out of the village code procedure. However, Michalowicz never suggested any collective-bargaining procedure governed or should have governed his termination, and he acknowledged that the village consistently maintained he was entitled to a hearing under the municipal code despite his union status. The court went on to point out that Michalowicz in fact received such a hearing and that it had already determined that Illinois law provided adequate remedies for the alleged procedural violations attendant to that hearing. Accordingly, the court concluded that sufficient post-termination protections existed to justify a truncated pre-termination hearing.

The court went on to say that in its truncated form, pre-termination process need only include oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity for the employee to tell his side of the story. Michalowicz conceded that he had notice of his Aug. 25, 2005, pre-termination hearing and of the charges that he would face, but argued that he was not presented with any of the evidence supporting the village's allegations against him and was not given an adequate opportunity to develop and present his version of the story. The court, however, ruled that Michalowicz was not entitled to conduct discovery, present evidence or witnesses or confront witnesses against him in a truncated pre-termination hearing. It said that due process does not require an employer to provide full “trial-type rights” such as the right to present or cross-examine witnesses, and their absence is not valid grounds for a due-process claim.

Michalowicz also argued that his pre-termination hearing was governed by a state law called the Firemen's Disciplinary Act, which required that a firefighter be “informed [prior to any administrative proceeding] of the names of all complainants and all information necessary to reasonably apprise [him] of the nature of the charges and the preparation of a defense.”

The court agreed that the law clearly entitled Michalowicz to what he maintained he did not receive, namely, “an explanation of the employer's evidence.” However, it went on to say that because Michalowicz admitted in his complaint that this state law afforded him the constitutional protection he alleged he was denied, any violation of that law by the village must once again be considered to be random and unauthorized. The court then pointed out that it had already determined that adequate legal remedies for such random and unauthorized violations existed in Illinois law. It thus held that Michalowicz had not stated a pre-termination claim on which relief could be granted.

The court concluded by saying that as alleged in Michalowicz's complaint, the scenario surrounding his termination struck the court as troubling, but because state law provided adequate remedies for the procedural violations which Michalowicz alleged, he had failed to state a federal due-process claim and dismissal of his complaint was appropriate.

This case illustrates the following:

• Not all alleged violations of a person's rights result in a valid federal due-process claim.
• Pre-termination hearings can be abbreviated. However, be alert for state statutes or collective bargaining agreements that may require more process.
• An aggrieved party's remedies may lie in more that one court in certain cases.

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Philip C. Stittleburg, MIFireE, is a Wisconsin attorney who has been chief of the La Farge (Wis.) Fire Department since 1977. He is legal counsel for the Wisconsin state Firefighters Association and the National Volunteer Fire Council. Stittleburg is also currently the chairman of the NVFC and a director of the National Fallen Firefighters Foundation.