holding that a city “may demand of its police officers a more exacting standard of conduct than it could validly impose by criminal statute on citizens in general”
How later courts described this case
- holding that a city “may demand of its police officers a more exacting standard of conduct than it could validly impose by criminal statute on citizens in general”
- describing the strength of such state employer interests, particularly in the context of law enforcement departments
- "More so than the typical government employer, the [Missouri Highway] Patrol has a significant government interest in regulating the speech activities of its officers in order to promote efficiency, foster loyalty and obedience to superior officers, maintain morale, and instill public confidence in the law enforcement institution." (alteration in original) (quotation omitted)
- alleging racial discrimination by a -4- superior officer is a matter of public concern
Written by the judges who cited it.
The opinion
JOHN R. GIBSON, Circuit Judge,
concurring in part and dissenting in part.
I concur in most of the court’s opinion, but dissent from part IV of the opinion, holding that Crain’s due process rights under the fourteenth amendment were not violated by failure to provide a hearing on the extent of discipline. I have no quarrel with the propriety of the board’s determination that Crain violated the rules and should be disciplined. My concern is with whether the procedure for setting his punishment was constitutionally adequate. Crain was allowed no participation in the proceedings to determine his punishment, and on this issue Crain was faced with a stacked deck.
The hearing officer filed recommended findings of fact and conclusions of law concerning guilt of the infraction, but made no recommendation concerning the appropriate punishment. When the board met, Captain Harmon distributed a background sheet concerning Crain’s disciplinary record that contained all of the negative comments, but no information concerning the commendations. The majority states that the police board was not “constitutionally required to consider an officer’s entire personnel file,” at 1413, but the fact is that the board was required by agency procedures to review Crain’s overall record. The police department’s manual provided that “in assessing discipline the Board may review and take into consideration the accused’s service record ... and the Board shall make said service record a part of the official record and transcript of the hearing and shall certify to same.” 8 Police Manual at 68 (J.A. at 144). Significantly, members of the board testified in depositions that they thought the material provided by Captain Harmon would have included meritorious behavior, had it existed. Dep. of James Mosbacher at 36-37 (J.A. 174-75); Dep. of William Henry Young at 20 (J.A. 182).
In spite of the marked tilting of the playing field at this point, Crain had no opportunity to appear before the board and present his argument concerning the extent of discipline that should be imposed upon him.
The proceedings in this case were bifurcated into guilt and punishment phases, and Crain was given no opportunity to argue his case on the punishment phase. The Supreme Court recognized in Louder-mill that a public employee has an interest in being heard on the subject of his punishment as well as that of his guilt: “Even where the facts are clear, the appropriateness or necessity of the discharge may not be; in such cases, the only meaningful opportunity to invoke the discretion of the decisionmaker is likely to be before the termination takes effect.” 470 U.S. at 543, 105 S.Ct. at 1494. The importance of an employee’s participation in determining his punishment was also recognized in Kelly v. Smith, 764 F.2d 1412 (11th Cir.1985), in which the court held a public employee’s right to a post-termination hearing was not satisfied, in part because he had not been allowed “to present witnesses to support his claim that termination was too severe a punishment.” Id. at 1415 . 9
*1415 Here, the decisionmakers were permitted to see only a truncated, misleading service record, an omission which Crain would certainly have corrected, had he been allowed to participate. Though there is no evidence of improper motive, the department's actions skewed the evidence against Crain, and I consider this analogous to a case in which the agency purposefully suppressed evidence. Cf. Detweiler v. Virginia Dep’t of Rehabilitative Services, 705 F.2d 557, 561-62 (4th Cir.1983) (witnesses intimidated). In light of the fact that Crain had no opportunity to respond to the proposed penalty of discharge, I conclude that Cram’s due process rights were violated. I would reverse and remand on this issue.
. Mo.Rev.Stat. § 536.080 (1986) provides:
In contested cases, each official of an agency who renders or joins in rendering a final decision shall', prior to such decision, either hear all the evidence, read the full record including all the evidence, or personally consider the portions of the record cited or referred to in the arguments or briefs. The parties to a contested case may by written stipulation or by oral stipulation in the record at a hearing waive compliance with the provisions of this section.
. Though Crain complains of deficiencies in a pre-termination hearing rather than a post-termination hearing, the Board’s decision at the pre-termination hearing was final, Police Manual at 69 (J.A. 145), and therefore Crain had no further opportunity to present evidence at the administrative level. Mo.Rev.Stat. § 536.100 (1988) entitled him to judicial review "limited to a determination of whether the [administrative decision] is supported by competent and substantial evidence upon the whole record, whether it was arbitrary, capricious or unreasonable, or whether the [agency] abused its discretion." Jarrett v. Hill, 648 S.W.2d 170, 172 (Mo.Ct.App.1983) (citations omitted), quoted in Curry v. St. Louis County, 773 S.W.2d 499, 501 (Mo.Ct.App.1989) (policeman termination case). Thus, like *1415 the employee in Kelly v. Smith, Crain had no opportunity to be heard on the punishment issue.