As readers might be aware, some public sector employees have a “property interest” in their position. A property interest is generally gained through a contract, statute or ordinance. An employee with a property interest in their job cannot be removed from it without notice of the reasons for the removal and an opportunity to respond to those reasons (due process). But what if the employee was never rightfully in the job to begin with?
Cleveland Hardy, a Chicago Police Officer, applied for and received a promotion to the rank of sergeant. The qualifications for promotion to sergeant include that a successful candidate had to have passed the exam for the position, which had been administered a few years prior to Hardy’s promotion. After Hardy was officially promoted, went through training, spent about $3,000 buying sergeant’s uniforms, and worked as a sergeant for about a week, it was discovered that he had not passed the sergeant exam as required for the promotion. Hardy did not dispute that fact. The Department immediately removed him from the position.
Hardy sued the City and the Department alleging that his due process rights were violated when he was summarily removed from the sergeant position, because the minute he was placed in it (erroneously or not) he acquired a property interest in the job. The court held that Hardy never acquired a property interest in the sergeant position because he was never qualified for the position. The fact that he was mistakenly placed in the job did not supersede the Department’s right to enforce the qualifications for the job. In other words, the promotion was essentially void.
Failure to provide due process when removing an employee from a position where he or she has acquired a property right can result in reinstatement even when the reasons for removal are beyond question. When an employee was never qualified for the position in the first place, no property interest has attached and therefore no process is due.