By: Tommy Eden
Terry Freeze was
hired by the
City of Decherd Tennessee Police Department and later promoted
to Chief of
Police in
August of 2007.
Earnest Colvin, Freeze’s brother-in-law, was hired by Freeze as a patrolman
in November
of 2007.
In a
City Board meeting held on February 25, 2009, a group of Board members met
with Freeze to discuss the
proper procedure for
buying dog food
for the
City’s police canine. During the meeting Freeze was
told that
the Mayor did not
care for Freeze’s wife.
According to
Freeze’s testimony, he was
told that they
“might need
to just let
him resign
as the
Chief and put
him in as
a sergeant
at $15 an
hour.” Freeze accepted the
demotion rather that contest the issue with the Mayor “who said she thought it
was a mistake to hire him in the first place.”
A
month later at a regular City Board meeting, another police officer for the
City nearly came to blows with a City employee over his suspension. Both Colvin
and Freeze stood by and observed and did not intervene to subdue the enraged
police officer that was escorted from the meeting and then fired. At this same meeting, the Board
voted to terminate
the employment
of Colvin and
Freeze for failure to
intervene in the dispute and because
“Decherd needed to
move on” as well as other grounds for “betterment”
of the
City. The City did
not provide Freeze and
Colvin with
written notice that
their terminations would be
considered at the meeting, the opportunity to
present witnesses or evidence, there was no hearing on the
merits of their discharges and there was no finding supporting a “just cause”
termination.
Discovery
revealed that in January of
2000 the Board
had adopted a Police Resolution that
“discipline
shall be
for cause and
shall follow
the basic concepts of
due process,” including a five
step “progressive system
when practicable whenever disciplinary action is used,” and that an
employee must be informed in writing of
the “exact offense violated.” Typical steps followed in a
for cause termination.
Freeze and
Colvin then filed suit
against the
City, Mayor and Board members alleging
that they were
terminated without due process in violation of 42
U.S.C. Section 1983. The 6th Circuit of
Appeals last week agreed that the Police Resolution handbook language grant to
them a constitutionally protected property right in their City jobs. Case is
Freeze v. City of Decherd.
Common
Sense Counsel: words do matter and a badly worded employment handbook can create
a contract of employment or, in the case of a public entity employee, a
constitutionally protected property interest in continued employment that can
only be extinguished by following just cause termination steps. An employment
handbook can be an employer's best reduction tool or a litigation landmine.
Having yours professionally reviewed is the only ways to spot and defuse those
landmines.
Tommy Eden is a partner
working out of the Constangy,
Brooks & Smith, LLP offices in Opelika, AL and West Point, GA and a member
of the ABA Section of Labor and Employment Law and serves on the Board of
Directors for the East Alabama SHRM Chapter. He can be contacted at teden@constangy.com or 334-246-2901. Blog
at alabamaatwork.com.
