May 19, 1998
Merit System District Required To Provide Hearing Prior To Placing Employee On Unpaid Leave Due To Physical Disability
[Bostean v. Los Angeles Unified School District (98 C.D.O.S. 2810)]
George Bostean was employed by the Los Angeles Unified School District as an environmental health technician. He suffered from diabetes and epilepsy. As a result, certain restrictions were placed on the performance of his duties by his physician. It does not appear that the essential duties of the job were identified nor that possible accommodations were explored.
In accordance with the district's merit system rules, Bostean was placed on involuntary illness leave. He was informed that he could appeal the decision if he could "provide evidence that (1) the decision was based on race, national origin, handicap, sex, age, or health impairment related to cancer for which a person has been cured or rehabilitated; (2) there was an abuse of discretion; (3) reasons given for the action are not in accordance with the facts; and (4) the disqualification was not in accordance with health standards set forth in the rules of the Board of Education." Bostean was not given any notice of the allegations on which the district decided to place him on unpaid leave. He was also not afforded any opportunity to be heard on the matter. The District rules also provided that the employee bears the burden of proof in any appeal and that a medical examiner will be appointed to investigate the matter.
Bostean appealed, and a medical examiner was appointed. Ultimately, the medical examiner recommended Bostean's re-employment. The Personnel Commission adopted the recommendation.
Subsequently Bostean sought back pay. The request was denied. He filed a lawsuit claiming denial of his constitutional rights. The case was predicated on his contention that as a permanent classified employee he held a property interest in his position and was denied the benefits of his position for seven months without due process of law. The Court agreed that Bostean had a property interest in his position. This conclusion was based, in part, on Education Code Section 45302 which provides that "no person in the permanent classified service shall be demoted or removed except for reasonable cause designated by rule of the commission as detrimental to the efficiency of the service."
The Court then considered what due process is required. It explained:"The purpose of any presuspension hearing would be to assure that there are reasonable grounds to support the suspension without pay. [Citation omitted] In determining what process is due, account must be taken of the length and finality of the deprivation; as long as the suspended employee receives a sufficiently prompt post-suspension hearing, the lost income is relatively insubstantial, compared with termination, and fringe benefits such as health and life insurance are often not affected at all. [Citation omitted] Moreover, the employee has an interest in seeing that a decision concerning his continued suspension is not made with excessive haste, for if the state is forced to act too quickly, the decision maker may give greater weight to the public interest and leave the suspension in place."
The Court also explained that:" Under the particular circumstance presented on this record, we can only conclude that a predeprivation hearing would have assured whether or not there were reasonable grounds to support imposition of the leave of absence without pay . . . Had District afforded Bostean notice of its allegations and an opportunity to respond prior to imposing an involuntary leave of absence, it is likely that the matter would have been resolved more quickly, because it would have been clear to District that [the Doctor who made the initial report] was not qualified to provide the information District sought. Under the procedures employed here, District only learned after it had taken adverse action against Bostean that [the Doctor], upon whom District had apparently relied, was not qualified to provide District with information it deemed pertinent. Thus, the procedures followed by District herein cannot be said to afford a reliable method for developing reasonable grounds to support the imposition of an involuntary illness leave of absence without prior notice and hearing."
The Court was also concerned that the post- deprivation appeal procedures "do not afford the successful employee in Bostean's position the right to be made whole."
The Court declined to specify the nature or extent of the required deprivation hearing noting, " We also need not here detail the different forms of predeprivation notice and hearing procedures which would have complied with due process principles, and do not intend to suggest that Bostean should have been afforded a full evidentiary hearing. Inasmuch as appellant was denied any form of predeprivation notice and opportunity to be heard, even the most informal, he was wrongfully deprived of a property interest, ..." [Emphasis in original]
One Justice dissented stating that a predeprivation hearing is not required. However this Justice joined in the decision to reverse explaining that Bostean was entitled to a reinstatement of his pay and benefits for the period of his suspension except for thirty-days. This conclusion is based on Education Code Section 45304 (a) which allows classified employees in merit system districts to be suspended for up to thirty days.
Two questions remain unanswered by this case. The first is whether it applies to nonmerit system districts which have no authority to suspend employees under the circumstances of this case. The closest authority given to such districts is to place the employee on a thirty-nine month reemployment list following the exhaustion of all paid leaves of absence including differential sick leave. The second unanswered question is the nature of any required hearing. It may well be that a proceeding as informal as Skelly type hearing would suffice.
It remains to be seen whether the District will seek review by the California Supreme Court and how other cases will interpret this decision.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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