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It is well-established law that government employees, who have due process rights, have the right to a pre-termination hearing where they can hear the charges against them. As the Supreme Court said in Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), “The essential requirements of due process . . . are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement.” 

A recent case is a reminder to follow the Loudermill rules. 

Diane Lawless was the treasurer in Freetown, Massachusetts. She was told that her job was in jeopardy, and, in accordance with Loudermill, she was provided a pre-termination hearing. According to the U.S. District Court judge who first heard the case, Lawless was represented by counsel at her pre-termination hearing, where “she questioned the Board’s two witnesses, and addressed the Board on her own behalf.” This met the requirements under the law.  

Lawless complained that it was clear the town board members attending the hearing were already convinced that she should be terminated from her employment. Lawless argued that the fact that the decision-makers had already made up their minds was grounds for overturning the decision. The reason, she argued, was that board members’ personal bias was illegal.  

In Lawless v. Town of Freetown, the Court of Appeals for the First Circuit did not agree. In its March 22, 2023, ruling, the court found that simply because the decision-makers were predisposed to terminate Lawless, it was not per se illegal. There was no requirement for an absence of bias at a pre-termination hearing. Instead, all that was required was a notice of the proposed termination and an opportunity to respond. The court couldn’t find any legal requirement for an impartial hearing. The court seemed frustrated when it explained that the bias of a decision-maker can be constitutionally intolerable, but the “threshold for disqualifying personal bias . . . is about as clear as mud.” 

As mentioned earlier, the case is a reminder to follow the Loudermill rules, helping government employers that provide due process to employees meet legal requirements. If you have questions about pre- or post-termination hearing procedures at your organization, please email Employers Council.