The Murky World of Due Process in Disciplining Public Employees: The Supreme Court's Ruling in Gilbert v. Homar

Abstract

The Supreme Court ruled in Gilbert v. Homar (1997) that a public employer need not give an employee notice and hearing before suspending that employee without pay. The Court held three factors were to be considered in determining what due process was to be afforded: the employee's interest, government's interest, and the risk of erroneous deprivation through the procedures used. The Homar case raises issues of what constitutes procedural due process and substantive due process as pertaining to property rights and due process as it relates to the right of liberty. The implications of the Homar decision are explored. A s a result o f a Supreme Court decision in 1985, public employers have been required to afford their employees some due process when taking the first steps toward terminating the employees. A t the time o f the decision in Cleveland Board of Education v. Loudermill [ 1 ] , employers were concerned that the Court was tilting unfairly in the direction o f employees , that employers could not take decisive action when needed for fear that the action would be regarded by the courts as violating employees ' due process rights. In 1997, the Supreme Court handed down a major decision in this area, the first since 1985. In Gilbert v. Homar, the Court held unanimously that a public employer need not g i v e an employee notice and hearing before suspending that employee without pay [ 2 ] . The Court provided important guidance as to what due process is required in disciplinary action [ 2 ] . This article considers due process requirements when disciplining public employees . The discussion begins with a summary o f the events surrounding the 247 © 1998, Baywood Publishing Co., Inc. doi: 10.2190/2K68-VHB3-5D8F-2F60 http://baywood.com