Termination of town official not violation of due process

A Rhode Island town’s termination of its finance director did not violate his right to due process, the 1st U.S. Circuit Court of Appeals has held.

The terminated plaintiff contended that both his pre- and post-termination proceedings were a sham.

But Judge David J. Barron, writing for the unanimous three-judge panel, said the plaintiff did not point to any evidence in the record suggesting that the relevant decision-maker “had decided in advance of the pre-termination hearing that nothing he heard there would have changed his mind.”

The 12-page decision is West v. Hoover, et al.

Timothy A. Williamson of Warwick, Rhode Island, was plaintiff’s counsel. The town of Coventry was defended by North Scituate attorneys Nicholas Gorham and Dianne L. Izzo.

Ouster

Plaintiff Warren West served as finance director of Coventry from 2005 until his termination in 2011.

In 2010, he was suspended from the position because of allegations that he failed to ensure that the town comply with Rhode Island’s “maintenance of effort” law by “provid[ing] at least the same amount of local funds to [its] school system[] from year to year.”

The town provided the plaintiff with the opportunity to participate in a pre-termination hearing. Before the hearing, held on Aug. 20, 2010, the plaintiff received a copy of a report that had been prepared by a private auditor, Ernest Almonte, who was charged with investigating the allegations against West.

During the hearing, the plaintiff, with the assistance of counsel, was given the opportunity to rebut the report’s findings and conclusions. Later that day, the plaintiff received notice that his employment had been terminated.

The plaintiff also received an opportunity to participate in a five-day post-termination hearing before the town’s three-member personnel board. Two attorneys — town solicitors Patrick Rogers and Frederick Tobin — served as hearing officers.

The board’s responsibility was to advise Town Manager Thomas Hoover as to whether the plaintiff had been wrongfully terminated. Hoover retained ultimate authority over the decision.

During that post-termination hearing, the plaintiff had the opportunity to cross-examine the town’s two witnesses, auditor Almonte and Hoover, and to call two witnesses of his own. The plaintiff was not permitted to subpoena witnesses, but he was able to enter documents into evidence.

The plaintiff eventually brought suit in Superior Court under 42 U.S.C. §1983, alleging that the town and certain of its officials had violated his 14th Amendment right to procedural due process.

After the defendants removed the case to U.S. District Court, Chief Judge William E. Smith granted summary judgment to the defendants.

“[O]ur case law is clear that even where a decision-maker makes the termination decision before the pre-termination hearing, and drafts a corresponding termination letter, ‘[t]here is no constitutional infirmity’ as long as ‘the planned termination was subject to revision.’”

— 1st Circuit Judge David J. Barron

No ‘sham’

On appeal, the plaintiff argued that Smith erred in holding that, as a matter of law, the process he received both before and after his termination as finance director for the town was constitutionally adequate. Claiming that his pre- and post-termination proceedings were a sham, he emphasized that his termination letter was prepared “well in advance” of his pre-termination hearing.

“[O]ur case law is clear that even where a decision-maker makes the termination decision before the pre-termination hearing, and drafts a corresponding termination letter, ‘[t]here is no constitutional infirmity’ as long as ‘the planned termination was subject to revision,’” Barron stated.

The plaintiff asserted that one of the members of the personnel board was appointed in violation of the town’s Home Rule Charter and therefore should have been removed.

“The mere fact, however, that a state law may have been violated provides no basis for finding a federal constitutional violation,” Barron said.

The plaintiff also claimed that he was not able to confront adverse witnesses during his pre-termination hearing.

“[W]e have emphasized that a ‘termination hearing is not a court of law, and the same level of process is not required,’” Barron pointed out, adding that the plaintiff acknowledged he was able to provide a line by line response to the report summarizing the allegations against him.

The plaintiff contended that “new, politically motivated appointments” to the personnel board presiding over his post-termination hearing were made in the month prior to the pre-termination hearing. According to the plaintiff, the appointments deprived him of a meaningful opportunity at his post-termination hearing before the board to rebut the charges against him.

The 1st Circuit panel was not persuaded, noting that “West’s evidence in this regard is merely that the Board’s members — two Republicans and one politically unaffiliated holdover member — were ‘hand-picked’ by Town Council Vice President Laura Flanagan.”

The panel found that the trial judge “supportably concluded, on the basis of the summary judgment record before it, that West had shown nothing either suggesting that ‘Flanagan sought to create a politically oriented personnel board’ or ‘connect[ing] the political makeup of the Council to his termination.’”

The plaintiff argued that he did not receive a meaningful post-termination hearing because the hearing officer, Patrick Rogers, who presided over the first two days of his post-termination hearing, was also the town solicitor and therefore had a role in the town’s investigation of the plaintiff’s alleged misconduct as finance director.

However, as the District Court judge emphasized and the plaintiff did not dispute, Rogers was not a decision-maker at either of the hearings, Barron noted. Instead, it was Hoover and the personnel board, not Rogers, who ultimately decided the plaintiff’s fate.

Finally, the plaintiff claimed that his right to due process was violated when Rogers, as hearing officer, failed to execute subpoenas that the plaintiff contended should have been issued. The 1st Circuit found, however, that the plaintiff was not entitled to subpoena witnesses.

“West did have the opportunity to ‘confront[] each of the witnesses the Town presented against him, call[] to his defense individuals who would willingly testify for him, and present[] documentary evidence to the Board in support of his case,’” Barron wrote. “

“He was due no more,” the judge said.