Where Protected Property Rights in Employment Are Created by Contract, Constitutional Due Process Must Be Provided before Depriving Employee of Those Rights

The following summary is based on an opinion of the U.S. Court of Appeals for the First Circuit, which is the appellate court for decisions of the U.S. District Court for the District of New Hampshire. Opinions of the First Circuit are binding on issues of federal law in New Hampshire.
 
This case, arising in Maine, involved a municipal employee who claimed that his federal constitutional rights under a collective bargaining agreement had been violated.  This case is of interest to New Hampshire municipalities because (a) the rights at issue are a matter of state law, but New Hampshire’s law is very similar to Maine’s regarding property rights under a collective bargaining agreement (CBA), and (b) the federal §1983 action for constitutional violations operates exactly the same way in New Hampshire.
 
The employee in this case was the most senior employee in his branch of the police department when the branch was eliminated and he was laid off.  Under the CBA between the police and the town, employees who were laid off “shall be recalled from lay-off according to their seniority provided they are qualified to fill the position.”  This right of recall lasted for 12 months from the date of layoff.  In the 12 months following his layoff, at least 2 positions opened with the police department for which the plaintiff was qualified.  The town did not recall him to either position; instead, it filled both positions with new hires and never notified the plaintiff about the positions, the new hires, or his appeal rights under the CBA.
 
Clukey filed a §1983 civil rights violation lawsuit in the federal district court, alleging that the town had violated his right to procedural due process under the 14th Amendment to the U.S. Constitution.  Under federal law (42 U.S.C. §1983, passed just after the Civil War), a citizen may be awarded money damages if the government violations his or civil rights.  In this context, “civil rights” means any right protected by the U.S. Constitution or any federal law.  This case involved the plaintiff’s civil rights under the 14th Amendment.  The heart of the claim was that the plaintiff had a protected property right in being recalled to employment under the CBA, and the town had deprived him of this right without the due process of law required by the Constitution.  The district court dismissed his claims, and he appealed to the Circuit Court of Appeals for the 1st Circuit (which includes New Hampshire).
 
The Due Process Clause of the 14th Amendment guarantees individuals procedural protections from governmental actions that deprive those individuals of their property interests in certain entitlements and benefits.  The first question, not surprisingly, is whether the individual has a protected property interest.  When the case involves a right of employment, the critical question is whether the plaintiff has a legitimate claim of entitlement to employment under state law.  Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748 (2005).  Under Maine law, a constitutionally protected property interest can be created in a public employment contract when the contract removes the government’s discretion regarding recall of laid-off employees.  That is exactly what the CBA in this case did.  (Similarly, in New Hampshire, although public employment alone does not create a protected property right, a provision in an employment contract can create such a right.  Appeal of Alexander, 163 N.H. 397 (2012); Appeal of Parker, 121 N.H. 986 (1981).)
 
In every case where a protected property interest is at stake, the U.S. Constitution requires, at a minimum, some kind of notice and an opportunity to be heard before the property right is taken away.  Dusenbery v. U.S., 534 U.S. 161 (2002).  Exactly what sort of notice and what sort of hearing the Constitution requires, however, vary with the particulars of the case.  This means that eventually, a court will need to assess the sufficiency of the process that was provided.  However, the Court in this case was not required to determine exactly what sort of process was due because the town provided absolutely no process at all.  The plaintiff did not receive “any notice of any kind whatsoever.”  (Emphasis in the original.)  Without suitable notice, the ‘opportunity’ for a plaintiff to be heard is a ‘charade.’
 
As a result of these findings, the Court remanded the case back to the district court for trial.  If the town ultimately is found to have violated the plaintiff’s 14th Amendment procedural due process rights, the possible remedies could include reinstatement of the plaintiff to employment, municipal liability for back pay and benefits, payment of the attorneys’ fees and costs for both sides, and possible punitive damages to the employee under §1983.
 
The gist of this case is that if a CBA is in place, or if an employee has a contract creating rights of recall, continued employment or other specific employment rights, it is critical for the employing municipality to recognize that fact.  Where these protected property interests exist, employees have a constitutional right to some kind of meaningful notice and opportunity for a hearing before being deprived of those rights.