Police Officer Property Right
Was a court case decided in 2002 changing the law on terminating police officers?
Yes. On June 18, 2002 the Oklahoma Supreme Court held that all municipal police officers that participate in the Oklahoma Police Pension System may not be terminated “except for cause." The Court also ruled that these municipalities must establish a review board to hear “appeals concerning the discharge of members.” That law can be found at 11 O.S. Section 50-123.
Does this law only apply to officers who are members of the police pension system?
Yes. This case of City of Durant v. Cicio, 2002 OK 52 is an interpretation of 11 O.S. Section 50-123 of the Police Pension System. Therefore, the trigger for this legislative exception to the employment-at-will doctrine is membership in the Oklahoma Police Pension system.
So, if my municipality does not participate in the State Police Pension System, this doesn’t apply?
Correct
Is there a population limit in Section 50-123?
No. It doesn’t matter whether your municipality is large or small. For each of your police officers that are members of the Pension System, state law supersedes your local ordinances, personnel policies or contracts.
Does this also cover the chief?
Yes. See Allen v. City of Henryetta, 2003 WL 380707 (10th Cir. 2003).
Are there any exceptions in the pension statute?
Yes. This provision doesn’t apply if your officers have a civil service board or review board or a negotiated contract covering discharge appeals. Therefore, if you fall into one of these categories, you would not be required to create the Board of Review.
Isnt there a quirk in the Fire and Police Arbitration Act (FPAA) involving probationary employees?
Yes. Under FOP v. City of Ardmore, 2002 OK 19 probationary employees do not have full rights under the FPAA to go to grievance arbitration. Therefore, it may be that probationary police officers, even in a unionized workforce, have coverage under the Police Pension’s Section 50-123.
What action can this Board of Review take after hearing an appeal?
This review process can reverse the termination decision and put the officer back to work.
Who is on this Board of Review?
This Board of Review “shall consist of the mayor, ex officio, who shall be a voting member, and four members appointed by the governing body of the participating municipality, as follows: 1. Two police officers retired or active from the police department of the municipality; and 2. One attorney and one licensed physician residing in the municipality . . . .” Section 50-123(B).
What if persons meeting these qualifications are unavailable for appointment?
The Mayor shall make appointments from the governing body of the municipality. However, neither the Chief of Police nor any person having direct appointive authority for police personnel shall be eligible for appointment.
Does Section 50-123 give these police officers a constitutional property interest in their job?
Yes. Under the 14th Amendment of the U.S. Constitution, the U.S. Supreme Court held a property right exists if a municipal employee cannot be terminated “except for cause.” See, Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir. 1989).
What does this constitutional property right mean?
This means a Due Process hearing must precede deprivation of a property right such as termination, demotion or the like.
What are the legal components of Due Process?
Due Process has been defined as a notice and opportunity to be heard.
What are the consequences if this Due Process Hearing isn’t completed prior to deprivation?
Failure to protect this property right can result in a federal civil rights lawsuit filed against you and your municipality.
Are there some court cases I can show my attorney?
Yes. Important cases are Powell v. Mikulecky, 891 F.2d 1454 (10th Cir. 1989), Hennigh v. City of Shawnee, 155 F.3d 1249 (10th Cir. 1998), and Goudeau v. Independent School District No. 37 of Oklahoma County, Oklahoma, 823 F.2d 1429 (10th Cir. 1987).
Isn’t this legally risky?
Indeed. There is potentially both federal and state liability if police officer employment actions are undertaken against officers who participate in the State Police Pension System. You should immediately contact both your municipal attorney and the insurance company who carries your city or town’s tort liability insurance and follow their legal advice.