Sometimes an employee simply doesn’t measure up. Poor performance is a common basis for dismissal. Under the personnel privacy laws, when a “disciplinary action” is a dismissal, a copy of the final notice of dismissal “setting forth the specific acts or omissions that are the basis of the dismissal” is a public record. Does this requirement apply when dismissal is based on poor performance? If so, does the release of this information trigger a requirement for a “name clearing” hearing?
This post discusses three specific questions that might arise when an employee is dismissed for poor performance: 1) Is the public agency required to create a written notice of dismissal? 2) If the agency does create a written notice, is the notice subject to public access under the revised personnel privacy laws? 3) If a notice of dismissal for poor performance is made public, could it give rise to a claim under the constitutionally-protected “liberty interest,” triggering the right to a name-clearing hearing?
1) Is the public agency required to create a written notice of dismissal?
There is no definitive answer to this question, but it may depend upon what kind of agency is involved, and the extent to which that agency adopts the Attorney General’s interpretation of the personnel privacy statutes. Under earlier versions of these statutes, the answer would mostly turn on whether a particular employee of a particular public agency is terminable at will, or may be terminated only for cause. For employees terminable at will, there would be no legal requirement to provide written notice to the employee setting forth the basis for the dismissal. The AG’s opinion interpreting the 2010 changes in the personnel privacy laws indicates that all public employers are required to create notices of dismissal (for dismissals that occur on or after the effective date of October 1, 2010) setting forth the reasons for dismissal for any employee (including at will employees), if the dismissal is considered a “disciplinary” action. As I noted in a post summarizing the AG opinion, this conclusion relies primarily on an analysis of the statute that governs state agencies, which contains language different from the statutes that apply to cities, counties, and most other local governments. The AG opinion does not include any direct analysis of the local government statutes. So local officials will have to decide whether they consider the AG’s conclusion to be applicable under the laws that govern their jurisdictions, and should rely on advice of local counsel in determining whether, and to what extent, current policies and procedures should be modified.
2) If the agency does create a written notice, is the notice subject to public access under the revised personnel privacy laws?
The answer to this question is probably “yes.” Under the new statutes, when a public employer creates a notice of dismissal, the requirement of public access only applies to disciplinary actions that are dismissals. (It is important to remember that there is no requirement to make public the reasons for disciplinary actions that do not result in dismissal – only the date and type of these actions is public information.) So the specific question here is whether a dismissal for poor performance is considered a disciplinary action.
A lay person’s understanding of a “disciplinary action” might be that it involves some sort of personal misconduct, dishonesty, criminal activity, or other breach of moral or ethical standards, but not necessarily poor performance. It appears, however, that the term has a broader meaning in the human resources and personnel context. Since the term isn’t defined in the statute, it’s possible that a court would look to common practice in the profession, as well as any definitions that exist in an agency’s policies and ordinances. For example, under personnel regulations applicable to state agencies, “just cause for disciplinary actions” may include “discipline imposed on the basis of unsatisfactory job performance including gross inefficiency” and “discipline imposed on the basis of unacceptable personal conduct.” (State Personnel Manual: Disciplinary Action, Suspension and Dismissal, Section 7.)
If this formulation is typical, it seems likely that dismissals for poor performance will be considered to be “disciplinary actions” under the statute and that notices of such dismissals, when created by a public agency, would be subject to public access.
3) If a notice of dismissal for poor performance is made public, could it give rise to a claim under the constitutionally-protected “liberty interest,” triggering the right to a name-clearing hearing?
The answer to this question is “no.” The concern about liberty interest claims has arisen because of the new requirement to provide public access to notices of dismissal that set out the reasons for dismissal. By way of brief summary, the legal rights at issue are based in state and federal constitutional law, specifically the procedural due process rights that attach when the government deprives a person of a liberty interest. In this context, cases have held that when the government makes stigmatizing public statements about an employee in connection with a personnel action, it can affect the employee’s liberty interest in pursuing future employment. As stated in a recent case, “To state this type of liberty interest claim under the Due Process Clause, a plaintiff must allege that the charges against him: (1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false.” Sciolino v. City of Newport News, 480 F.3d 642, 646 (4th Cir. 2007) (the main holding in this case was that the plaintiff need only demonstrate that the information has a likelihood of being made public).
This right is different from the due process rights that attach when employees have a property interest in their continued employment. The protection is not against the termination, or even the release of the information, but instead triggers a right to a “name clearing hearing” – an opportunity to refute the allegedly false information to avoid the stigmatizing effect of its release. It applies to any employee, including probationary and other at-will employees whose reputation might be damaged by the government’s release of false information in connection with a dismissal. Sciolino, at 645; see also, Harrell v. City of Gastonia, 2010 WL 3314567 (4th Cir.2010).
As noted above, an essential element of a liberty interest claim is that information that the government makes public places a “stigma” on the employee’s reputation. Cases have repeatedly held that in order to state a claim, the information must involve some sort of dishonesty or immorality – something that reflects negatively on a person’s character, not just their ability to perform the job. Cases have held that the release of information amounting to poor performance is simply not sufficiently stigmatizing to trigger the liberty interest protections. An example of this type of holding is Dunn v. Town of Emerald Isle, 918 F.2d 955 (4th Cir. 1990), in which the court noted: “charges which do not include allegations of serious character defects such as dishonesty or immorality as a matter of law do not foreclose future employment opportunities.” (citing Robertson v. Rogers, 679 F.2d 1090, 1092 (4th Cir.1982); and Sigmon v. Poe, 564 F.2d 1093, 1096 (4th Cir.1977)). In Dunn, “The Board’s report alleged that Dunn had failed to perform required duties, had demonstrated a lack of cooperation and discourteous treatment towards others, and had displayed an insubordinate attitude.” The court concluded that, “Because those comments do not allege serious character defects, we find as a matter of law that defendants’ release of the Board’s findings did not jeopardize Dunn’s future employment opportunities.” Similarly, in Robertson, cited in the Dunn opinion, the Fourth Circuit Court of Appeals held that even if “the superintendent told prospective employers that Robertson was terminated for ‘incompetence and outside activities,’ this does not amount to the type of communication which gives rise to a protected liberty interest…Allegations of incompetence do not imply the existence of serious character defects such as dishonesty or immorality, contemplated by Roth, [U.S. Supreme Court case recognizing the liberty interest]… and are not the sort of accusations that require a hearing.”
In summary, it seems likely that a dismissal based on poor performance that doesn’t involve any allegation of personal misconduct, dishonesty, or immorality may be considered a disciplinary action such that a notice of dismissal, if one exists, will be subject to public access. It’s still quite an open question as to whether local governments are required to create such notices for at-will employees, but whenever they do create them, they will likely fall within the new provisions as public information. Under the current case law, however, the release of a notice of dismissal for poor performance can’t form the basis of a liberty interest claim and therefore would not trigger a right to a name clearing hearing.