Key Statutes Affecting Public Employees

Keith L. Hunt Hunt & Associates P.C. 55 West Monroe Suite 3600 Chicago, IL 60602 312-558-1300khunt@huntassoclaw.com

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Garrity v. New Jersey

Supreme Court of the United States

March 21, 1966.

No Number in Original

Reporter1966 U.S. LEXIS 2024 *; 383 U.S. 941; 86 S. Ct. 1194; 16 L. Ed. 2d 205

No. 386. GARRITY ET AL. v. NEW JERSEY.

Prior History: [*1] Appeal from Sup. Ct. N.J. Reported below: 44 N.J. 209, 207 A. 2d 689; 44 N.J. 259, 208 A. 2d 146, 1965 N.J. LEXIS 222.

Counsel: Daniel L. O'Connor for appellants. Norman Heine and James G. Aiken for appellee.

Opinion

Further consideration of the question of jurisdiction postponed to the hearing of the case on the merits.

End of Document

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Cleveland Bd. of Educ. v. Loudermill

Supreme Court of the United States

December 3, 1984, Argued ; March 19, 1985, Decided *

No. 83-1362

* Together with No. 83-1363, Parma Board of Education v. Donnelly et al., and No. 83-6392, Loudermill v. Cleveland Board of Education etal., also on certiorari to the same court. 2018 Employment Law Seminar

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Reporter470 U.S. 532 *; 105 S. Ct. 1487 **; 84 L. Ed. 2d 494 ***; 1985 U.S. LEXIS 68 ****; 53 U.S.L.W. 4306; 118 L.R.R.M. 3041; 1 I.E.R. Cas. (BNA) 424

CLEVELAND BOARD OF EDUCATION v. LOUDERMILL ET AL.

Prior History: [****1] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

Disposition: 721 F.2d 550, affirmed and remanded.

Core Terms

days, procedures, termination, cases, deprivation, wages, pretermination, Appeals, requires, due process, proceedings, employees, disputes, removal, opportunity to respond, post-termination, reinstatement, discharged, conferred, tenure, property interest, public employee, reasons, notice, final decision, entitlement, balancing, hearings, provides, charges

Case Summary

Procedural PosturePetitioner sought certiorari from decision of United States Court of Appeals for Sixth Circuit, which found that respondents had been deprived of due process, and concluded that a compelling private interest in retaining employment, coupled with value of presenting evidence prior to dismissal, outweighed the added administrative burden of a pre-termination hearing.

Overview

Respondents, classified civil servants pursuant to Ohio Rev. Code Ann. § 124.11 (1984), were dismissed from employment without hearing. Respondents claimed that § 124.34 was unconstitutional on its face because it did not provide an employee an opportunity to respond to the charges against him prior to removal, and, as a result discharged employees were deprived of liberty and property without due process. On certiorari, the Court stated that the Due Process Clause of the United States Constitution provided that certain substantive rights, such as life, liberty, and property, could not be deprived except pursuant to constitutionally adequate procedures. The Court held that all the process that was due was provided by a pretermination opportunity to respond, coupled with post-termination administrative proceedings as provided by Ohio statute. As respondents alleged that they had no chance to respond, the district court erred in

dismissing for failure to state a claim.

OutcomeThe judgment was affirmed and the case was remanded for further proceedings consistent with the Court's opinion, on grounds that respondents, as classified civil servants, had to be afforded due process in form of pre-termination opportunity to respond, coupled with post-termination administrative proceedings as provided by Ohio statute.

LexisNexis® Headnotes

Civil Procedure > Judicial Officers > References

Governments > State & Territorial Governments > Employees & Officials

HN1[ ] Judicial Officers, References

A "classified civil servant," under Ohio Rev. Code Ann. § 124.11 (1984), can be terminated only for cause, and may obtain administrative review if discharged. Ohio Rev. Code Ann. § 124.34.

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

HN2[ ] Procedural Due Process, Scope of Protection

If a party has a property right in continued employment, the State cannot not deprive him or her of this property without due process.

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

HN3[ ] Procedural Due Process, Scope of Protection

Property interests are not created by the United States Constitution, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.

470 U.S. 532, *532; 105 S. Ct. 1487, **1487; 84 L. Ed. 2d 494, ***494; 1985 U.S. LEXIS 68, ****68

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Governments > State & Territorial Governments > Employees & Officials

HN4[ ] State & Territorial Governments, Employees & Officials

"Classified civil service employees," pursuant to Ohio Rev. Code Ann. § 124.11 (1984), are entitled to retain their positions during good behavior and efficient service, and can not be dismissed except for misfeasance, malfeasance, or nonfeasance in office. Ohio Rev. Code Ann. § 124.34.

Constitutional Law > Substantive Due Process > Scope

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > General Overview

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

HN5[ ] Constitutional Law, Substantive Due Process

The Due Process Clause of the United States Constitution provides that certain substantive rights such as life, liberty, and property, cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. "Property" cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to due process is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in public employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > General Overview

HN6[ ] Procedural Due Process, Scope of Protection

Once it is determined that the Due Process Clause of the United States Constitution applies, the question remains what process is due.

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

HN7[ ] Procedural Due Process, Scope of Protection

An essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case. An individual be given an opportunity for a hearing before he is deprived of any significant property interest. This principle requires some kind of a hearing prior to the discharge of an employee who has a constitutionally protected property interest in his employment.

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

HN8[ ] Procedural Due Process, Scope of Protection

The need for some form of pretermination hearing is evident from a balancing of the competing interests at stake. First, the significance of the private interest in retaining employment cannot be gainsaid. The court recognizes the severity of depriving a person of the means of livelihood. Second, some opportunity for the employee to present his side of the case is recurringly of obvious value in reaching an accurate decision. Dismissals for cause will often involve factual disputes. 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 decision maker is likely to be before the termination takes effect. The governmental interest in immediate termination does not outweigh these interests. Affording the employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays.

Administrative Law > ... > Hearings > Right to Hearing > General Overview

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

Administrative Law > Agency Adjudication > Hearings > General Overview

HN9[ ] Hearings, Right to Hearing

The pretermination "hearing," though necessary, need not be elaborate. The formality and procedural requisites for the

470 U.S. 532, *532; 105 S. Ct. 1487, **1487; 84 L. Ed. 2d 494, ***494; 1985 U.S. LEXIS 68, ****1

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hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings. In general, "something less" than a full evidentiary hearing is sufficient prior to adverse administrative action.

Business & Corporate Compliance > ... > Enforcement > Duties & Liabilities of Parties > Forgery, Fraud & Mistake

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

HN10[ ] Duties & Liabilities of Parties, Forgery, Fraud & Mistake

The pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions; essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

HN11[ ] Procedural Due Process, Scope of Protection

The essential requirements of due process are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.

Administrative Law > ... > Hearings > Right to Hearing > Due Process

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > Scope of Protection

Constitutional Law > ... > Fundamental Rights > Procedural Due Process > General Overview

HN12[ ] Right to Hearing, Due Process

The Due Process Clause of United States Constitution requires provision of a hearing at a meaningful time.

Lawyers' Edition Display

Decision

Tenured public employees held entitled to pretermination hearing.

Summary

In the first of two consolidated cases, a security guard employed by a board of education was dismissed on grounds that he had failed to disclose a prior felony conviction on his job application. In the second case, a school bus mechanic was discharged because he failed an eye examination. Both employees were classified civil servants who could be terminated only for cause and both were entitled to posttermination administrative review of the decisions. However, neither employee was afforded a pretermination opportunity to respond to the charges. Subsequent complaints in the United States District Court for the Northern District of Ohio were dismissed, the District Courts concluding that the statutory procedures for dismissal satisfied due process. The United States Court of Appeals for the Sixth Circuit reversed, finding that the discharged employees were entitled to a pretermination hearing and thus had been deprived of due process (721 F2d 550).

On certiorari, the United States Supreme Court affirmed and remanded. In an opinion by White, J., joined by Burger, Ch. J., and Blackmun, Powell, Stevens, and O'Connor, JJ., by Brennan, J., as to Parts I, II, III, and IV, and by Marshall, J., as to Part II, it was held: (1) that the employees had a property interest in continued employment which could not be defined by the procedures provided for its deprivation (Part II); (2) that the employees were entitled to a pretermination opportunity to respond but not to a full evidentiary hearing (Parts III & IV); and (3) that a 9-month delay in the security guard's posttermination hearing did not constitute a separate due process violation (Part V).

Marshall, J., concurred in Part II and in the judgment, stating that before a decision is made to terminate an employee's wages, the employee should be entitled to confront and cross-examine adverse witnesses and to present witnesses on his own behalf whenever there are substantial disputes in testimonial evidence.

Brennan, J., concurred in part and dissented in part, expressing the view that the record was insufficiently

470 U.S. 532, *532; 105 S. Ct. 1487, **1487; 84 L. Ed. 2d 494, ***494; 1985 U.S. LEXIS 68, ****1

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developed to permit an informed judgment on the issue of administrative delay and that the security guard's case should be remanded for further evidentiary proceedings.

Rehnquist, J., dissented, expressing the view that the Fourteenth Amendment does not support the conclusion that the state's effort to confer a limited form of tenure upon the employees resulted in the creation of a "property right" in their employment.

Headnotes

CONSTITUTIONAL LAW §800.3 > due process -- right to

pretermination opportunity to respond -- > Headnote:

LEdHN[1A][ ] [1A]LEdHN[1B][ ] [1B]LEdHN[1C][ ] [1C]LEdHN[1D][ ] [1D]LEdHN[1E][ ] [1E]LEdHN[1F][ ] [1F]

A public employee who can be discharged only for cause and who is entitled to a posttermination administrative hearing under state law must also be given a pretermination opportunity to respond to the charges as a matter of due process; the governmental interest in immediate termination does not outweigh the private interest in retaining employment and the risk of an erroneous termination. (Marshall, J., dissented in part from this holding; Rehnquist, J., dissented from this holding.)

CIVIL SERVICE §2 > CONSTITUTIONAL LAW §717 > due

process -- property interest in continued employment -- > Headnote:

LEdHN[2A][ ] [2A]LEdHN[2B][ ] [2B]

A state statute providing that classified civil service employees are entitled to retain their positions during good behavior and efficient service and prohibiting dismissal except for misfeasance, malfeasance, or nonfeasance in office creates a property interest in continued employment which such employees may not be deprived of without due process. (Rehnquist, J., dissented from this holding.)

CONSTITUTIONAL LAW §529 > due process -- substantive and

procedural rights -- > Headnote:

LEdHN[3A][ ] [3A]LEdHN[3B][ ] [3B]

A substantive due process right in property cannot be defined by the procedures provided for its deprivation, since the categories of substance and procedure provided by the due process clause of the Fourteenth Amendment are distinct. (Rehnquist, J., dissented from this holding.)

CONSTITUTIONAL LAW §800.3 > due process -- administrative

delay -- > Headnote:

LEdHN[4][ ] [4]

A complaint by a discharged public employee alleging a violation of due process on grounds that his posttermination administrative proceedings took too long does not state a claim of a constitutional deprivation, where the employee offers no indication that his wait was unreasonably prolonged other than the fact that it took 9 months. (Brennan, J., dissented from this holding.)

CONSTITUTIONAL LAW §528.5 > deprivation of liberty --

accusation of dishonesty against public employee -- > Headnote:

LEdHN[5A][ ] [5A]LEdHN[5B][ ] [5B]

A discharged public employee does not state a claim for an unconstitutional deprivation of liberty on grounds that an accusation of dishonesty hung over his head during posttermination administrative proceedings, where the employee fails to allege that the reasons for his dismissal were published.

Syllabus

In No. 83-1362, petitioner Board of Education hired respondent Loudermill as a security guard. On his job application Loudermill stated that he had never been convicted of a felony. Subsequently, upon discovering that he had in fact been convicted of grand larceny, the Board dismissed him for dishonesty in filling out the job application. He was not afforded an opportunity to respond to the dishonesty charge or to challenge the dismissal. Under Ohio law, Loudermill was a "classified civil servant," and by statute, as such an employee, could be terminated only for cause and was entitled to administrative review of the dismissal. He filed an appeal with the Civil Service Commission, which, after hearings before a referee and the Commission, upheld the dismissal some nine months after the

470 U.S. 532, *532; 105 S. Ct. 1487, **1487; 84 L. Ed. 2d 494, ***494; 1985 U.S. LEXIS 68, ****1

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appeal had been filed. Although the Commission's decision was subject to review in the state courts, Loudermill instead filed suit in Federal District Court, alleging that the Ohio statute providing for administrative review was unconstitutional on its face because it [****2] provided no opportunity for a discharged employee to respond to charges against him prior to removal, thus depriving him of liberty and property without due process. It was also alleged that the statute was unconstitutional as applied because discharged employees were not given sufficiently prompt postremoval hearings. The District Court dismissed the suit for failure to state a claim on which relief could be granted, holding that because the very statute that created the property right in continued employment also specified the procedures for discharge, and because those procedures were followed, Loudermill was, by definition, afforded all the process due; that the post-termination hearings also adequately protected Loudermill's property interest; and that in light of the Commission's crowded docket the delay in processing his appeal was constitutionally acceptable. In No. 83-1363, petitioner Board of Education fired respondent Donnelly from his job as a bus mechanic because he had failed an eye examination. He appealed to the Civil Service Commission, which ordered him reinstated, but without backpay. He then filed a complaint in Federal District Court essentially identical [****3] to Loudermill's, and the court dismissed for failure to state a claim. On a consolidated appeal, the Court of Appeals reversed in part and remanded, holding that both respondents had been deprived of due process and that the compelling private interest in retaining employment, combined with the value of presenting evidence prior to dismissal, outweighed the added administrative burden of a pretermination hearing. But with regard to the alleged deprivation of liberty and Loudermill's 9-month wait for an administrative decision, the court affirmed the District Court, finding no constitutional violation.

Held: All the process that is due is provided by a pretermination opportunity to respond, coupled with post-termination administrative procedures as provided by the Ohio statute; since respondents alleged that they had no chance to respond, the District Court erred in dismissing their complaints for failure to state a claim. Pp. 538-548.

(a) The Ohio statute plainly supports the conclusion that respondents possess property rights in continued employment. The Due Process Clause provides that the substantive rights of life, liberty, and property cannot be deprived except pursuant [****4] to constitutionally adequate procedures. The categories of substance and procedure are distinct. "Property" cannot be defined by the procedures provided for its deprivation. Pp. 538-541.

(b) The principle that under the Due Process Clause an individual must be given an opportunity for a hearing before he is deprived of any significant property interest, requires "some kind of hearing" prior to the discharge of an employee who has a constitutionally protected property interest in his employment. The need for some form of pretermination hearing is evident from a balancing of the competing interests at stake: the private interest in retaining employment, the governmental interests in expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination. Pp. 542-545.

(c) The pretermination hearing need not definitively resolve the propriety of the discharge, but should be an initial check against mistaken decisions -- essentially a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. The essential requirements of due process [****5] are notice and an opportunity to respond. Pp. 545-546.

(d) The delay in Loudermill's administrative proceedings did not constitute a separate constitutional violation. The Due Process Clause requires provision of a hearing "at a meaningful time," and here the delay stemmed in part from the thoroughness of the procedures. Pp. 546-547.

Counsel: James G. Wyman argued the cause for petitioners in Nos. 83-1362 and 83-1363 and respondents in No. 83-6392. With him on the brief for petitioner in No. 83-1362 was Thomas C. Simiele. John F. Lewis and John T. Meredith filed a brief for petitioner in No. 83-1363. John D. Maddox and Stuart A. Freidman filed a brief for respondents Cleveland Civil Service Commission et al. in No. 83-6392.

Robert M. Fertel, by appointment of the Court, 468 U.S. 1203, argued the cause and filed briefs for respondents in Nos. 83-1362 and 83-1363 and petitioner in No. 83-6392. +

+ Briefs of amici curiae urging reversal in Nos. 83-1362 and 83-1363 were filed for the State of Ohio et al. by Anthony J. Celebrezze, Jr., Attorney General of Ohio, Gene W. Holliker and Christine Manuelian, Assistant Attorneys General, Charles A. Graddick, Attorney General of Alabama, Robert K. Corbin, Attorney General of Arizona, Tany S. Hong, Attorney General of Hawaii, Lindley E. Pearson, Attorney General of Indiana, Robert T. Stephen, Attorney General of Kansas, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, William A. Allain, Attorney General of Mississippi, Michael T. Greely, Attorney General of Montana, Brian McKay, Attorney General of Nevada, Gregory H. Smith, Attorney General of New Hampshire, Irwin I. Kimmelman, Attorney General of New Jersey, Robert WeFald, Attorney General of North Dakota, Michael Turpen,

470 U.S. 532, *532; 105 S. Ct. 1487, **1487; 84 L. Ed. 2d 494, ***494; 1985 U.S. LEXIS 68, ****1

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[****6]

Judges: WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, STEVENS, and O'CONNOR, JJ., joined, in Parts I, II, III, and IV of which BRENNAN, J., joined, and in Part II of which MARSHALL, J., joined. MARSHALL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 548. BRENNAN, J., filed an opinion concurring in part anddissenting in part, post, p. 551. REHNQUIST, J., filed adissenting opinion, post, p. 559.

Opinion by: WHITE

Opinion

[*535] [***499] [**1489] JUSTICE WHITE delivered the opinion of the Court.

LEdHN[1A][ ] [1A]In these cases we consider what pretermination process must be accorded a public employee who can be discharged only for cause.

I

In 1979 the Cleveland Board of Education, petitioner in No. 83-1362, hired respondent James Loudermill as a securityguard. On his job application, Loudermill stated that he hadnever been convicted of a felony. Eleven months later, as partof a routine examination of his employment records, theBoard discovered that in fact Loudermill had been convictedof grand larceny in 1968. By letter dated November 3, 1980,the Board's Business Manager informed Loudermill that hehad been dismissed because of [****7] his dishonesty infilling out the employment application. Loudermill was notafforded an opportunity to respond to the charge of dishonesty

Attorney General of Oklahoma, David Frohnmayer, Attorney General of Oregon, LeRoy S. Zimmerman, Attorney General of Pennsylvania, Mark V. Meierhenry, Attorney General of South Dakota, Bronson C. La Follette, Attorney General of Wisconsin, and Archie G. McClintock, Attorney General of Wyoming; and for the National School Boards Association by Gwendolyn H. Gregory and August W. Steinhilber.

Briefs of amici curiae urging affirmance in Nos. 83-1362 and 83-1363 were filed for the American Civil Liberties Union of Cleveland Foundation by Gordon J. Beggs, Edward R. Stege, Jr., and Charles S. Sims; for the American Federation of State, County, and Municipal Employees, AFL-CIO, by Richard Kirschner; and for the National Educational Association by Robert H. Chanin and Michael H. Gottesman.

or to [**1490] challenge his dismissal. On November 13, the Board adopted a resolution officially approving the discharge.

Under Ohio law, Loudermill was a "classified HN1[ ] civil servant." Ohio Rev. Code Ann. § 124.11 (1984). Such employees can be terminated only for cause, and may obtain administrative review if discharged. § 124.34. Pursuant to this provision, Loudermill filed an appeal with the Cleveland Civil Service Commission on November 12. The Commission appointed a referee, who held a hearing on January 29, 1981. Loudermill argued that he had thought that his 1968 larceny conviction was for a misdemeanor rather than a felony. The referee recommended reinstatement. On July 20, 1981, the [*536] full Commission heard argument and orally announced that it would uphold the dismissal. Proposed findings of fact and conclusions of law followed on August 10, and Loudermill's attorneys were advised of the result by mail on August 21.

[***500] Although the Commission's decision was subject to judicial review in the state courts, Loudermill [****8] instead brought the present suit in the Federal District Court for the Northern District of Ohio. The complaint alleged that § 124.34 was unconstitutional on its face because it did notprovide the employee an opportunity to respond to thecharges against him prior to removal. As a result, dischargedemployees were deprived of liberty and property without dueprocess. The complaint also alleged that the provision wasunconstitutional as applied because discharged employeeswere not given sufficiently prompt postremoval hearings.

Before a responsive pleading was filed, the District Court dismissed for failure to state a claim on which relief could be granted. See Fed. Rule Civ. Proc. 12(b)(6). It held that because the very statute that created the property right in continued employment also specified the procedures for discharge, and because those procedures were followed, Loudermill was, by definition, afforded all the process due. The post-termination hearing also adequately protected Loudermill's liberty interests. Finally, the District Court concluded that, in light of the Commission's crowded docket, the delay in processing Loudermill's administrative appeal was constitutionally [****9] acceptable. App. to Pet. for Cert. in No. 83-1362, pp. A36-A42.

The other case before us arises on similar facts and followed a similar course. Respondent Richard Donnelly was a bus mechanic for the Parma Board of Education. In August 1977, Donnelly was fired because he had failed an eye examination. He was offered a chance to retake the examination but did not do so. Like Loudermill, Donnelly appealed to the Civil Service Commission. After a year of wrangling about the

470 U.S. 532, *532; 105 S. Ct. 1487, **1487; 84 L. Ed. 2d 494, ***494; 1985 U.S. LEXIS 68, ****5

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timeliness of his appeal, the Commission heard [*537] the case. It ordered Donnelly reinstated, though without backpay. 1 In a complaint essentially identical to Loudermill's, Donnelly challenged the constitutionality of the dismissal procedures. The District Court dismissed for failure to state a claim, relying on its opinion in Loudermill.

[****10] The District Court denied a joint motion to alter or amend its judgment, 2 and the [**1491] cases were consolidated for appeal. A divided panel of the Court of Appeals for the Sixth Circuit reversed in part and remanded. 721 F.2d 550 (1983). After rejecting arguments that the actions were barred by failure to exhaust administrative remedies and by res [***501] judicata -- arguments that are not renewed here -- the Court of Appeals found that both respondents had been deprived of due process. It disagreed with the District Court's original rationale. Instead, it concluded that the compelling private interest in retaining employment, combined with the value of presenting evidence prior to dismissal, outweighed the added administrative burden of a pretermination hearing. Id., at 561-562. With regard to the alleged deprivation of liberty, and Loudermill's 9-month wait for an administrative decision, the court affirmed the District Court, finding no constitutional violation. Id., at 563-564.

[****11] [*538] The dissenting judge argued that respondents' property interests were conditioned by the procedural limitations accompanying the grant thereof. He considered constitutional requirements satisfied because there was a reliable pretermination finding of "cause," coupled with a due process hearing at a meaningful time and in a meaningful manner. Id., at 566.

1 The statute authorizes the Commission to "affirm, disaffirm, or modify the judgment of the appointing authority." Ohio Rev. Code Ann. § 124.34 (1984). Petitioner Parma Board of Education interprets this as authority to reinstate with or without backpay and views the Commission's decision as a compromise. Brief for Petitioner in No. 83-1363, p. 6, n. 3; Tr. of Oral. Arg. 14. The Court of Appeals, however, stated that the Commission lacked the power to award backpay. 721 F.2d 550, 554, n. 3 (1983). As the decision of the Commission is not in the record, we are unable to determine the reasoning behind it.

2 In denying the motion, the District Court no longer relied on the principle that the state legislature could define the necessary procedures in the course of creating the property right. Instead, it reached the same result under a balancing test based on JUSTICE POWELL's concurring opinion in Arnett v. Kennedy, 416 U.S. 134, 168-169 (1974), and the Court's opinion in Mathews v. Eldridge, 424 U.S. 319 (1976). App. to Pet. for Cert. in No. 83-1362, pp. A54-A57.

Both employers petitioned for certiorari. Nos. 83-1362 and 83-1363. In a cross-petition, Loudermill sought review of the rulings adverse to him. No. 83-6392. We granted all three petitions, 467 U.S. 1204 (1984), and now affirm in all respects.

II

LEdHN[2A][ ] [2A]Respondents' federal constitutional claim depends on their having had a HN2[ ] property right in continued employment. 3 Board of Regents v. Roth, 408 U.S. 564, 576-578 (1972); Reagan v. United States, 182 U.S. 419, 425 (1901). If they did, the State could not deprive them of this property without due process. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 11-12 (1978); Goss v. Lopez, 419 U.S. 565, 573-574 (1975).

[****12] LEdHN[2B][ ] [2B]HN3[ ] Property interests are not created by the Constitution, "they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . . " Board of Regents v. Roth, supra, at 577. See also Paul v. Davis, 424 U.S. 693, 709 (1976). The Ohio statute plainly creates such an interest. HN4[ ] Respondents were "classified civil service employees," Ohio Rev. Code Ann. § 124.11 (1984), entitled to retain their positions "during good behavior and efficient service," who could not be dismissed "except . . . for . . . misfeasance, [*539] malfeasance, or nonfeasance in office," § 124.34. 4 [****13] The statute plainly supports the conclusion, reached by both lower courts, that respondents possessed property rights in continued employment. Indeed, [***502] this question does not seem to have been disputed below. 5

3 Of course, the Due Process Clause also protects interests of life and liberty. The Court of Appeals' finding of a constitutional violation was based solely on the deprivation of a property interest. We address below Loudermill's contention that he has been unconstitutionally deprived of liberty. See n. 13, infra.

4 The relevant portion of § 124.34 provides that no classified civil servant may be removed except "for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the director of administrative services or the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance, or nonfeasance in office."

5 The Cleveland Board of Education now asserts that Loudermill had no property right under state law because he obtained his

470 U.S. 532, *536; 105 S. Ct. 1487, **1490; 84 L. Ed. 2d 494, ***500; 1985 U.S. LEXIS 68, ****9

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[**1492] LEdHN[3A][ ] [3A]The Parma Board argues, however, [****14] that the property right is defined by, and conditioned on, the legislature's choice of procedures for its deprivation. Brief for Petitioner in No. 83-1363, pp. 26-27. The Board stresses that in addition to specifying the grounds for termination, the statute sets out procedures by which termination may take place. 6 The [*540] procedures were adhered to in these cases. According to petitioner, "[to] require additional procedures would in effect expand the scope of the property interest itself." Id., at 27. See also Brief for State of Ohio et al. as Amici Curiae 5-10.

[****15] This argument, which was accepted by the District Court, has its genesis in the plurality opinion in Arnett v. Kennedy, 416 U.S. 134 (1974). Arnett involved a challenge by a former federal employee to the procedures by which he was dismissed. The plurality reasoned that where the legislation conferring the substantive right also sets out the procedural mechanism for enforcing that right, the two cannot be separated:

"The employee's statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which Congress has designated for the determination of cause.

employment by lying on the application. It argues that had Loudermill answered truthfully he would not have been hired. He therefore lacked a "legitimate claim of entitlement" to the position. Brief for Petitioner in No. 83-1362, pp. 14-15.

For several reasons, we must reject this submission. First, it was not raised below. Second, it makes factual assumptions -- that Loudermill lied, and that he would not have been hired had he not done so -- that are inconsistent with the allegations of the complaint and inappropriate at this stage of the litigation, which has not proceeded past the initial pleadings stage. Finally, the argument relies on a retrospective fiction inconsistent with the undisputed fact that Loudermill was hired and did hold the security guard job. The Board cannot escape its constitutional obligations by rephrasing the basis for termination as a reason why Loudermill should not have been hired in the first place.

6 After providing for dismissal only for cause, see n. 4, supra, § 124.34 states that the dismissed employee is to be provided with a copy of the order of removal giving the reasons therefor. Within 10 days of the filing of the order with the Director of Administrative Services, the employee may file a written appeal with the State Personnel Board of Review or the Commission. "In the event such an appeal is filed, the board or commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the board or commission, and it may affirm, disaffirm, or modify the judgment of the appointing authority." Either side may obtain review of the Commission's decision in the State Court of Common Pleas.

. . . . .

"[Where] the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in determining that right, a litigant in the position of appellee must take the bitter with the sweet." Id., at 152-154.

This view garnered three votes in Arnett, but was specifically rejected by the other six Justices. See id., at 166-167 (POWELL, J., joined by BLACKMUN, J.,); [***503] id., at 177-178, 185 (WHITE, [****16] J.,); id., at 211(MARSHALL, J., joined by Douglas and BRENNAN, JJ.).Since then, this theory has at times seemed to gather someadditional support. See Bishop v. Wood, 426 U.S. 341, 355-361 (1976) (WHITE, J., dissenting); Goss v. Lopez, 419 U.S.,at 586-587 (POWELL, J., joined [*541] by BURGER, C. J.,and BLACKMUN and REHNQUIST, JJ., dissenting). Morerecently, however, the Court has clearly rejected it. In Vitekv. Jones, 445 U.S. 480, 491 (1980), we pointed out that"minimum [procedural] requirements [are] a matter of federallaw, they are not diminished by the fact that the State mayhave specified its own procedures that it may deem adequatefor determining the preconditions to adverse official action."This conclusion was reiterated in Logan v. Zimmerman BrushCo., 455 U.S. 422, 432 (1982), where we reversed the lowercourt's holding that because the entitlement arose from a statestatute, the legislature had [**1493] the prerogative to definethe procedures to be followed to protect that entitlement.

LEdHN[3B][ ] [3B]In light of these holdings, it is settled that the [****17] "bitter with the sweet" approach misconceives the constitutional guarantee. If a clearer holding is needed, we provide it today. The point is straightforward: HN5[ ] the Due Process Clause provides that certain substantive rights -- life, liberty, and property -- cannot be deprived except pursuant to constitutionally adequate procedures. The categories of substance and procedure are distinct. Were the rule otherwise, the Clause would be reduced to a mere tautology. "Property" cannot be defined by the procedures provided for its deprivation any more than can life or liberty. The right to due process "is conferred, not by legislative grace, but by constitutional guarantee. While the legislature may elect not to confer a property interest in [public] employment, it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards." Arnett v. Kennedy, supra, at 167 (POWELL, J., concurring in part and concurring in result in part); see id., at 185 (WHITE, J., concurring in part and dissenting in part).

In short, HN6[ ] once it is determined that the Due Process

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Clause applies, "the question [****18] remains what process is due." Morrissey v. Brewer, 408 U.S. 471, 481 (1972). The answer to that question is not to be found in the Ohio statute.

[*542] III

HN7[ ] An essential principle of due process is that a deprivation of life, liberty, or property "be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). We have described "the root requirement" of the Due Process Clause as being "that an individual be given an opportunity for a hearing before he is deprived of any significant [***504] property interest." 7 Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis in original); see Bell v. Burson, 402 U.S. 535, 542 (1971). This principle requires "some kind of a hearing" prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Board of Regents v. Roth, 408 U.S., at 569-570; Perry v. Sindermann, 408 U.S. 593, 599 (1972). As we pointed out last Term, this rule has been settled [****19] for some time now. Davis v. Scherer, 468 U.S. 183, 192, n. 10 (1984); id., at 200-203 (BRENNAN, J., concurring in part and dissenting in part). Even decisions finding no constitutional violation in termination procedures have relied on the existence of some pretermination opportunity to respond. For example, in Arnett six Justices found constitutional minima satisfied where the employee had access to the material upon which the charge was based and could respond orally and in writing and present rebuttal affidavits. See also Barry v. Barchi, 443 U.S. 55, 65 (1979) (no due process violation where horse trainer whose license was suspended "was given more than one opportunity to present his side of the story").

[****20] LEdHN[1B][ ] [1B]HN8[ ] The need for some form of pretermination hearing, recognized in these cases, is evident from a balancing of the competing interests at stake. These are the private interest in [*543] retaining employment, the governmental interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens, and the risk of an erroneous termination. [**1494] See Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

7 There are, of course, some situations in which a postdeprivation hearing will satisfy due process requirements. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594 (1950); North American Cold Storage Co. v. Chicago, 211 U.S. 306 (1908).

First, the significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood. See Fusari v. Steinberg, 419 U.S. 379, 389 (1975); Bell v. Burson, supra, at 539; Goldberg v. Kelly, 397 U.S. 254, 264 (1970); Sniadach v. Family Finance Corp., 395 U.S. 337, 340 (1969). While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job. See Lefkowitz v. Turley, 414 U.S. 70, 83-84 (1973).

Second, [****21] some opportunity for the employee to present his side of the case is recurringly of obvious value in reaching an accurate decision. Dismissals for cause will often involve factual disputes. Cf. Califano v. Yamasaki, 442 U.S. 682, 686 (1979). 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 decision maker [***505] is likely to be before the termination takes effect. See Goss v. Lopez, 419 U.S., at 583-584; Gagnon v. Scarpelli, 411 U.S. 778, 784-786 (1973). 8

[****22]

[*544] LEdHN[1C][ ] [1C]The cases before us illustrate these considerations. Both respondents had plausible arguments to make that might have prevented their discharge. The fact that the Commission saw fit to reinstate Donnelly suggests that an error might have been avoided had he been provided an opportunity to make his case to the Board. As for Loudermill, given the Commission's ruling we cannot say that the discharge was mistaken. Nonetheless, in light of the referee's recommendation, neither can we say that a fully informed decision-maker might not have exercised its discretion and decided not to dismiss him, notwithstanding its

8 This is not to say that where state conduct is entirely discretionary the Due Process Clause is brought into play. See Meachum v. Fano, 427 U.S. 215, 228 (1976). Nor is it to say that a person can insist on a hearing in order to argue that the decisionmaker should be lenient and depart from legal requirements. See Dixon v. Love, 431 U.S. 105, 114 (1977). The point is that where there is an entitlement, a prior hearing facilitates the consideration of whether a permissible course of action is also an appropriate one. This is one way in which providing "effective notice and informal hearing permitting the [employee] to give his version of the events will provide a meaningful hedge against erroneous action. At least the [employer] will be alerted to the existence of disputes about facts and arguments about cause and effect. . . . [His] discretion will be more informed and we think the risk of error substantially reduced." Goss v. Lopez, 419 U.S., at 583-584.

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authority to do so. In any event, the termination involved arguable issues, 9 and the right to a hearing does not depend on a demonstration of certain success. Carey v. Piphus, 435 U.S. 247, 266 (1978).

[****23] The governmental interest in immediate termination does not outweight these interests. As we shall explain, affording the employee an opportunity to respond prior to termination would impose neither a significant administrative burden nor intolerable delays. Furthermore, the employer shares the employee's interest in avoiding disruption and erroneous decisions; and until the matter is settled, the employer would continue to receive the benefit of the employee's labors. It is preferable to keep [**1495] a qualified employee on than to train a new one. A governmental employer also has an interest in keeping citizens usefully employed rather than taking the possibly erroneous and counterproductive step of forcing its employees onto the welfare rolls. Finally, in those situations where the employer perceives a significant hazard in [*545] keeping the employee on the job, 10 it [***506] can avoid the problem by suspending with pay.

[****24] IV

LEdHN[1D][ ] [1D]The foregoing considerations indicate that HN9[ ] the pretermination "hearing," though necessary, need not be elaborate. We have pointed out that "[the] formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." Boddie v. Connecticut, 401 U.S., at 378.See Cafeteria Workers v.

9 Loudermill's dismissal turned not on the objective fact that he was an ex-felon or the inaccuracy of his statement to the contrary, but on the subjective question whether he had lied on his application form. His explanation for the false statement is plausible in light of the fact that he received only a suspended 6-month sentence and a fine on the grand larceny conviction. Tr. of Oral Arg. 35.

10 In the cases before us, no such danger seems to have existed. The examination Donnelly failed was related to driving school buses, not repairing them. Id., at 39-40. As the Court of Appeals stated, "[no] emergency was even conceivable with respect to Donnelly." 721 F.2d, at 562. As for Loudermill, petitioner states that "to find that wehave a person who is an ex-felon as our security guard is verydistressful to us." Tr. of Oral Arg. 19. But the termination was basedon the presumed misrepresentation on the employment form, not onthe felony conviction. In fact, Ohio law provides that an employee"shall not be disciplined for acts," including criminal convictions,occurring more than two years previously. See Ohio Admin. Code §124-3-04 (1979). Petitioner concedes that Loudermill's job performance was fully satisfactory.

McElroy, 367 U.S. 886, 894-N95 (1961). In general, "something less" than a full evidentiary hearing is sufficient prior to adverse administrative action. Mathews v. Eldridge, 424 U.S., at 343. Under state law, respondents were later entitled to a full administrative hearing and judicial review. The only question is what steps were required before the termination took effect.

In only one case, Goldberg v. Kelly, 397 U.S. 254 (1970), has the Court required a full adversarial evidentiary hearing prior to adverse governmental action. However, as the Goldberg Court itself pointed out, see id., at 264, that case presented significantly different considerations than are present in the context [****25] of public employment. Here, HN10[ ] the pretermination hearing need not definitively resolve the propriety of the discharge. It should be an initial check against mistaken decisions -- essentially, a determination of whether [*546] there are reasonable grounds to believe that the charges against the employee are true and support the proposed action. See Bell v. Burson, 402 U.S., at 540.

LEdHN[1E][ ] [1E]HN11[ ] The essential requirements of due process, and all that respondents seek or the Court of Appeals required, are notice and an opportunity to respond. The opportunity to present reasons, either in person or in writing, why proposed action should not be taken is a fundamental due process requirement. See Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1281 (1975). The tenured public employee is entitled to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. See Arnett v. Kennedy, 416 U.S., at 170-171 (opinion of POWELL, J.); id., at 195-196 (opinion of WHITE, J.); see also Goss v. Lopez, 419 U.S., at 581. [****26] To require more than this prior to termination would intrude to an unwarranted extent on the government's interest in quickly removing an unsatisfactory employee.

V

LEdHN[4][ ] [4]LEdHN[5A][ ] [5A]Our holding rests in part on the provisions in Ohio law for a full post-termination hearing. In his cross-petition Loudermill asserts, as [***507] a separate constitutional violation, that his administrative proceedings took too long. 11 The Court of

11 Loudermill's hearing before the referee occurred two and one-half months after he filed his appeal. The Commission issued its written decision six and one-half months after that. Administrative proceedings in Donnelly's case, once it was determined that they could proceed at all, were swifter. A writ of mandamus requiring the

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[*547] [**1496] Appeals held otherwise, and we agree. 12 HN12[ ] The Due Process Clause requires provision of a hearing "at a meaningful time." E. g., Armstrong v. Manzo, 380 U.S. 545, 552 (1965). At some point, a delay in the post-termination hearing would become a constitutional violation. See Barry v. Barchi, 443 U.S., at 66. In the present case, however, the complaint merely recites the course of proceedings and concludes that the denial of a "speedy resolution" violated due process. App. 10. This reveals nothing about the delay except that it stemmed in part from the thoroughness of the procedures. A 9-month adjudication is not, of course, unconstitutionally lengthy per se. Yet Loudermill offers no indication [****27] that his wait was unreasonably prolonged other than the fact that it took nine months. The chronology of the proceedings set out in the complaint, coupled with the assertion that nine months is too long to wait, does not state a claim of a constitutional deprivation. 13

[****28] LEdHN[5B][ ] [5B]

VI

LEdHN[1F][ ] [1F]We conclude that all the process that is due is provided by a pretermination opportunity to respond,

Commission to hold a hearing was issued on May 9, 1978; the hearing took place on May 30; the order of reinstatement was issued on July 6.

Section 124.34 provides that a hearing is to be held within 30 days of the appeal, though the Ohio courts have ruled that the time limit is not mandatory. E. g., In re Bronkar, 53 Ohio Misc. 13, 17, 372 N. E. 2d 1345, 1347 (Com. Pl. 1977). The statute does not provide a time limit for the actual decision.

12 It might be argued that once we find a due process violation in the denial of a pretermination hearing we need not and should not consider whether the post-termination procedures were adequate. See Barry v. Barchi, 443 U.S. 55, 72-74 (1979) (BRENNAN, J., concurring in part). We conclude that it is appropriate to consider this issue, however, for three reasons. First, the allegation of a distinct due process violation in the administrative delay is not an alternative theory supporting the same relief, but a separate claim altogether. Second, it was decided by the court below and is raised in the cross-petition. Finally, the existence of post-termination procedures is relevant to the necessary scope of pretermination procedures.

13 The cross-petition also argues that Loudermill was unconstitutionally deprived of liberty because of the accusation of dishonesty that hung over his head during the administrative proceedings. As the Court of Appeals found, 721 F.2d, at 563, n. 18, the failure to allege that the reasons for the dismissal were published dooms this claim. See Bishop v. Wood, 426 U.S. 341, 348 (1976).

coupled with post-termination [*548] administrative procedures as provided by the Ohio statute. Because respondents allege in their complaints that they had no chance to respond, the District Court erred in dismissing for failure to state a claim. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

[***508] So ordered.

Concur by: MARSHALL (In Part); BRENNAN (In Part)

Concur

JUSTICE MARSHALL, concurring in part and concurring in the judgment.

I agree wholeheartedly with the Court's express rejection of [****29] the theory of due process, urged upon us by the petitioner Boards of Education, that a public employee who may be discharged only for cause may be discharged by whatever procedures the legislature chooses. I therefore join Part II of the opinion for the Court. I also agree that, before discharge, the respondent employees were entitled to the opportunity to respond to the charges against them (which is all they requested), and that the failure to accord them that opportunity was a violation of their constitutional rights. Because the Court holds that the respondents were due all the process they requested, I concur in the judgment of the Court.

I write separately, however, to reaffirm my belief that public employees who may be discharged only for cause are entitled, under the Due Process Clause of the Fourteenth Amendment, to more than respondents [**1497] sought in this case. I continue to believe that before the decision is made to terminate an employee's wages, the employee is entitled to an opportunity to test the strength of the evidence "by confronting and cross-examining adverse witnesses and by presenting witnesses on his own behalf, whenever there are substantial [****30] disputes in testimonial evidence," Arnett v. Kennedy, 416 U.S. 134, 214 (1974) (MARSHALL, J.,dissenting). Because the Court suggests that even in thissituation due process requires no more than notice and anopportunity to be heard before wages are cut off, I am notable to join the Court's opinion in its entirety.

[*549] To my mind, the disruption caused by a loss of wages may be so devastating to an employee that, whenever there are substantial disputes about the evidence, additional predeprivation procedures are necessary to minimize the risk of an erroneous termination. That is, I place significantly greater weight than does the Court on the public employee's

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substantial interest in the accuracy of the pretermination proceeding. After wage termination, the employee often must wait months before his case is finally resolved, during which time he is without wages from his public employment. By limiting the procedures due prior to termination of wages, the Court accepts an impermissibly high risk that a wrongfully discharged employee will be subjected to this often lengthy wait for vindication, and to the attendant and often traumatic disruptions [****31] to his personal and economic life.

Considerable amounts of time may pass between the termination of wages and the decision in a post-termination evidentiary hearing -- indeed, in this case nine months passed before Loudermill received a decision from his postdeprivation hearing. During this period the employee is left in limbo, deprived of his livelihood and of wages on which he may well depend for basic sustenance. In that time, his ability to secure another job might be hindered, either because of the nature of the charges against him, or because of the prospect that he will return to his prior public employment if permitted. Similarly, his access to unemployment benefits might [***509] seriously be constrained, because many States deny unemployment compensation to workers discharged for cause. * Absent an interim source of wages, the employee might be unable to meet his basic, fixed costs, such as food, rent or mortgage payments. He would be forced to spend his savings, if he had any, and to convert his possessions to [*550] cash before becoming eligible for public assistance. Even in that instance

"[the] substitution of a meager welfare grant for a regular paycheck [****32] may bring with it painful and irremediable personal as well as financial dislocations. A child's education may be interrupted, a family's home lost, a person's relationship with his friends and even his family may be irrevocably affected. The costs of being forced, even temporarily, onto the welfare rolls because of a wrongful discharge from tenured Government employment cannot be so easily discounted," id., at 221.

Moreover, it is in no respect certain that a prompt postdeprivation hearing will make the employee economically whole again, and the wrongfully discharged employee will almost inevitably suffer irreparable injury. Even if

* See U.S. Dept. of Labor, Comparison of State Unemployment Insurance Laws §§ 425, 435 (1984); see also id., at 4-33 to 4-36 (table of state rules governing disqualification from benefits for discharge for misconduct).

reinstatement is forthcoming, the same might not be true of backpay -- as it was not to respondent Donnelly in this case -- and the delay in receipt [****33] of wages would thereby be transformed into a permanent deprivation. Of perhaps equal concern, the personal trauma experienced during the long months in which the employee awaits decision, during which he suffers doubt, humiliation, and the loss of an opportunity to perform work, will never be recompensed, and indeed probably could not be with dollars alone.

[**1498] That these disruptions might fall upon a justifiably discharged employee is unfortunate; that they might fall upon a wrongfully discharged employee is simply unacceptable. Yet in requiring only that the employee have an opportunity to respond before his wages are cut off, without affording him any meaningful chance to present a defense, the Court is willing to accept an impermissibly high risk of error with respect to a deprivation that is substantial.

Were there any guarantee that the postdeprivation hearing and ruling would occur promptly, such as within a few days of the termination of wages, then this minimal predeprivation [*551] process might suffice. But there is no such guarantee. On a practical level, if the employer had to pay the employee until the end of the proceeding, the employer obviously would [****34] have an incentive to resolve the issue expeditiously. The employer loses this incentive if the only suffering as a result of the delay is borne by the wage earner, who eagerly awaits the decision on his livelihood. Nor has this Court grounded any guarantee of this kind in the Constitution. Indeed, this Court has in the past approved, at least implicitly, an average 10- or 11-month delay in the receipt of a decision on Social Security benefits, Mathews v. Eldridge, 424 U.S. 319, 341-342 [***510] (1976), and, in the case of respondent Loudermill, the Court gives a stamp of approval to a process that took nine months. The hardship inevitably increases as the days go by, but nevertheless the Court countenances such delay. The adequacy of the predeprivation and postdeprivation procedures are inevitably intertwined, and only a constitutional guarantee that the latter will be immediate and complete might alleviate my concern about the possibility of a wrongful termination of wages.

The opinion for the Court does not confront this reality. I cannot and will not close my eyes today -- as I could not 10 years ago -- to the economic situation of great numbers [****35] of public employees, and to the potentially traumatic effect of a wrongful discharge on a working person. Given that so very much is at stake, I am unable to accept the Court's narrow view of the process due to a public employee before his wages are terminated, and before he begins the long wait for a public agency to issue a final decision in his case.

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Dissent by: BRENNAN (In Part); REHNQUIST

Dissent

JUSTICE BRENNAN, concurring in part and dissenting in part.

Today the Court puts to rest any remaining debate over whether public employers must provide meaningful notice and hearing procedures before discharging an employee for [*552] cause. As the Court convincingly demonstrates, the employee's right to fair notice and an opportunity to "present his side of the story" before discharge is not a matter of legislative grace, but of "constitutional guarantee." Ante, at 541, 546. This principle, reaffirmed by the Court today, has been clearly discernible in our "repeated pronouncements" for many years. See Davis v. Scherer, 468 U.S. 183, 203 (1984) (BRENNAN, J., concurring in part and dissenting in part).

Accordingly, I concur in Parts I-IV of the Court's opinion. I write [****36] separately to comment on two issues the Court does not resolve today, and to explain my dissent from the result in Part V of the Court's opinion.

I

First, the Court today does not prescribe the precise form of required pretermination procedures in cases where an employee disputes the facts proffered to support his discharge. The cases at hand involve, as the Court recognizes, employees who did not dispute the facts but had "plausible arguments to make that might have prevented their discharge." Ante, at 544. In such cases, notice and an "opportunity to present reasons," ante, at 546, are sufficient to protect the important interests at stake.

[**1499] As the Court also correctly notes, other cases "will often involve factual disputes," ante, at 543, such as allegedly erroneous records or false accusations. As JUSTICE MARSHALL has previously noted and stresses again today, ante, at 548, where there exist not just plausible arguments to be made, but also "substantial disputes in testimonial evidence," due process may well require more than a simple opportunity to argue or deny. Arnett v. Kennedy, 416 U.S. 134, 214 [***511] (1974) (MARSHALL, [****37] J., dissenting). The Court acknowledges that what the Constitution requires prior to discharge, in general terms, is pretermination procedures sufficient to provide "an initial check against mistaken decisions -- essentially, a determination of whether there are reasonable grounds to believe [*553] that the charges against the employee are true and support the proposed action." Ante, at 545-546 (emphasis

added). When factual disputes are involved, therefore, an employee may deserve a fair opportunity before discharge to produce contrary records or testimony, or even to confront an accuser in front of the decisionmaker. Such an opportunity might not necessitate "elaborate" procedures, see ante, at 545, but the fact remains that in some cases only such an opportunity to challenge the source or produce contrary evidence will suffice to support a finding that there are "reasonable grounds" to believe accusations are "true."

Factual disputes are not involved in these cases, however, and the "very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). [****38] I do not understand Part IV to foreclose the views expressed above or by JUSTICE MARSHALL, ante, p. 548, with respect to discharges based on disputed evidence or testimony. I therefore join Parts I-IV of the Court's opinion.

II

The second issue not resolved today is that of administrative delay. In holding that Loudermill's administrative proceedings did not take too long, the Court plainly does not state a flat rule that 9-month delays in deciding discharge appeals will pass constitutional scrutiny as a matter of course. To the contrary, the Court notes that a full post-termination hearing and decision must be provided at "a meaningful time" and that "[at] some point, a delay in the post-termination hearing would become a constitutional violation." Ante, at 547. For example, in Barry v. Barchi, 443 U.S. 55 (1979), we disapproved as "constitutionally infirm" the shorter administrative delays that resulted under a statute that required "prompt" postsuspension hearings for suspended racehorse trainers with decision to follow within 30 days of the hearing. Id., at 61, 66. As JUSTICE MARSHALL demonstrates, when an employee's [****39] wages are terminated pending [*554] administrative decision, "hardship inevitably increases as the days go by." Ante, at 551; see also Arnett v. Kennedy, supra, at 194 (WHITE, J., concurring in part and dissenting in part) ("The impact on the employee of being without a job pending a full hearing is likely to be considerable because '[more] than 75 percent of actions contested within employing agencies require longer to decide than the 60 days required by . . . regulations'") (citation omitted). In such cases the Constitution itself draws a line, as the Court declares, "at some point" beyond which the State may not continue a deprivation [***512] absent decision. 1

1 Post-termination administrative procedures designed to determine fully and accurately the correctness of discharge actions are to be

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The holding in Part V is merely that, in this particular case, Loudermill failed to allege facts sufficient [**1500] to state a cause of action, and not that nine months can never exceed constitutional limits.

[****40] III

Recognizing the limited scope of the holding in Part V, I must still dissent from its result, because the record in this case is insufficiently developed to permit an informed judgment on the issue of overlong delay. Loudermill's complaint was dismissed without answer from the respondent Cleveland Civil Service Commission. Allegations at this early stage are to be liberally construed, and "[it] is axiomatic that a complaint should not be dismissed unless 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246 (1980) (citation omitted). Loudermill alleged that it took the Commission over two and one-half months simply to hold [*555] a hearing in his case, over two months more to issue a nonbinding interim decision, and more than three and one-half months after that to deliver a final decision. Complaint paras. 20, 21, App. 10. 2 [****42] The Commission provided no explanation for these significant gaps in the administrative process; we do not know if they were due to an overabundance of appeals, Loudermill's [****41] own foot-dragging, bad faith on the part of the Commission, or any

encouraged. Multiple layers of administrative procedure, however, may not be created merely to smother a discharged employee with "thoroughness," effectively destroying his constitutionally protected interests by overextension. Cf. ante, at 547 ("thoroughness" of procedures partially explains delay in this case).

2 The interim decision, issued by a hearing examiner, was in Loudermill's favor and recommended his reinstatement. But Loudermill was not reinstated nor were his wages even temporarily restored; in fact, there apparently exists no provision for such interim relief or restoration of backpay under Ohio's statutory scheme. See ante, at 537, n. 1; cf. Arnett v. Kennedy, 416 U.S. 134, 196 (1974) (WHITE, J., concurring in part and dissenting in part) (under federal civil service law, discharged employee's wages are only "provisionally cut off" pending appeal); id., at 146 (opinion of REHNQUIST, J.) (under federal system, backpay is automatically refunded "if the [discharged] employee is reinstated on appeal"). See also N. Y. Civ. Serv. Law § 75(3) (McKinney 1983) (suspension without pay pending determination of removal charges may not exceed 30 days). Moreover, the final decision of the Commission to reverse the hearing examiner apparently was arrived at without any additional evidentiary development; only further argument was had before the Commission. 721 F.2d 550, 553 (CA6 1983). These undisputed facts lead me at least to question the administrative value of, and justification for, the 9-month period it took to decide Loudermill's case.

other of a variety of reasons that might affect our analysis. We do know, however, that under Ohio law the Commission is obligated to hear appeals like Loudermill's "within thirty days." Ohio Rev. Code Ann. § 124.34 (1984). 3 Although this [**1501] statutory [***513] limit has been [*556] viewed only as "directory" by Ohio courts, those courts have also made it clear that when the limit is exceeded, "[the] burden of proof [is] placed on the [Commission] to illustrate to the court that the failure to comply with the 30-day requirement . . . was reasonable." In re Bronkar, 53 Ohio Misc. 13, 17, 372 N.

3 A number of other States similarly have specified time limits for hearings and decisions on discharge appeals taken by tenured public employees, indicating legislative consensus that a month or two normally is sufficient time to resolve such actions. No state statutes permit administrative delays of the length alleged by Loudermill. See, e. g., Ariz. Rev. Stat. Ann. § 41-785(A), (C) (Supp. 1984-1985) (hearing within 30 days, decision within 30 days of hearing); Colo. Rev. Stat. § 24-50-125(4) (Supp. 1984) (hearing within 45 days, decision within 45 days of hearing); Conn. Gen. Stat. Ann. § 5-202(b) (Supp. 1984) (decision within 60 days of hearing); Ill. Rev. Stat. ch. 24 1/2, para. 38b14 (1983) (hearing within 45 days); Ind. Code § 4-15-2-35 (1982) (decision within 30 days of hearing); Iowa Code § 19A.14 (1983) (hearing within 30 days); Kan. Stat. Ann. § 75-2949(f) (Supp. 1983) (hearing within 45 days); Ky. Rev. Stat. § 18A.095(3) (1984) (hearing within 60 days of filing, decision within 90 days of filing); Maine Rev. Stat. Ann., Tit. 5, § 753(5) (1979) (decision within 30 days of hearing); Md. Ann. Code, Art. 64A, §§ 33(b)(2), (e) (Supp. 1984) (salary suspension hearing within 5 days and decision within 5 more days; discharge hearing within 90 days and decision within 45 days of hearing); Mass. Gen. Laws Ann., ch. 31, § 43 (Supp. 1984-1985) (hearing within 10 days, findings "forthwith," decision within 30 days of findings); Minn. Stat. § 44.08 (1970) (hearing within 10 days, decision within 3 days of hearing); Nev. Rev. Stat. § 284.390(2) (1983) (hearing within 20 days); N. J. Stat. Ann. §§ 11:15-4, 11:15-6 (West 1976) (hearing within 30 days, decision within 15 days of hearing); Okla. Stat., Tit. 74, §§ 841.13, 841.13A (Supp. 1984) (hearing within 35 days, decision within 15 days of hearing); R. I. Gen. Laws §§ 36-4-40, 36-4-40.2, 36-4-41 (1984) (initial hearing within 14 days, interim decision within 20 days of hearing, appeal decision within 30 more days, final decision of Governor within 15 more days); S. C. Code §§ 8-17-330, 8-17-340 (Supp. 1984) (interim decision within 45 days of filing, final decision within 20 days of hearing); Utah Code Ann. § 67-19-25 (Supp. 1983) (interim decision within 5-20 days, final hearing within 30 days of filing final appeal, final decision within 40 days of hearing); Wash. Rev. Code § 41.64.100 (1983) (final decision within 90 days of filing); Wis. Stat. § 230.44(4)(f) (Supp. 1984-1985) (decision within 90 days of hearing); see also Ala. Code § 36-26-27(b) (Supp. 1984) (hearings on citizen removal petitions within 20 days of service); D. C. Code § 1-617.3(a)(1)(D) (1981) ("Career and Educational Services" employees "entitled" to decision within 45 days); Ga. Code Ann. § 45-20-9(e)(1) (1982) (hearing officer's decision required within 30 days of hearing); Miss. Code Ann. § 21-31-23 (Supp. 1984) (hearing required within 20 days of termination

470 U.S. 532, *554; 105 S. Ct. 1487, **1499; 84 L. Ed. 2d 494, ***512; 1985 U.S. LEXIS 68, ****39

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E. 2d 1345, 1347 (Com. Pl. 1977). I cannot conclude on this record that Loudermill could prove "no set of facts" that might have entitled him to relief after nine months of waiting.

[****43] [*557] The Court previously has recognized that constitutional restraints on the timing, no less than the form, of a hearing and decision "will depend on appropriate accommodation of the competing interests involved." Goss v. Lopez, 419 U.S. 565, 579 (1975). The relevant interests have generally been recognized as threefold: "the importance of the private interest and the length or finality of the deprivation, the likelihood of governmental error, and the magnitude of the governmental interests involved." Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982) (citations omitted); accord, Mathews v. Eldridge, 424 U.S. 319, 334-335 (1976); cf. United States v. $ 8,850, 461 U.S. 555, 564 (1983) (four-factor test for evaluating constitutionality of delay between time of property seizure and initiation of forfeiture action). "Little can be said on when a delay becomes presumptively improper, for the determination necessarily depends on the facts of the particular case." Id., at 565.

Thus the constitutional analysis of delay requires some development of [***514] the [****44] relevant factual context when a plaintiff alleges, as Loudermill has, that the administrative process has taken longer than some minimal amount of time. Indeed, all of our precedents that have considered administrative delays under the Due Process Clause, either explicitly or sub silentio, have been decided only after more complete proceedings in the District Courts. See, e. g., $ 8,850, supra; Barry v. Barchi, 443 U.S. 55 (1979); Arnett v. Kennedy, 416 U.S. 134 (1974); Mathews v. Eldridge, supra. 4 Yet in Part V, the Court summarily holds Loudermill's allegations [*558] insufficient, without adverting to any considered balancing of interests. Disposal of Loudermill's complaint without examining the competing interests involved marks an unexplained departure from the careful multifaceted analysis of the facts we consistently have employed in the past.

[****45] I previously have stated my view that

for "extraordinary circumstances").

4 After giving careful consideration to well-developed factual contexts, the Court has reached results that might be viewed as inconsistent in the abstract. Compare Barchi, 443 U.S., at 66 (disapproving statute requiring decision within 30 days of hearing), with Arnett, 416 U.S., at 194 (WHITE, J., concurring in part and dissenting in part) (approving statutory scheme under which over 50 percent of discharge appeals "take more than three months"). Rather than inconsistency, however, these differing results demonstrate the impossibility of drawing firm lines and the importance of factual development in such cases.

"[to] be meaningful, an opportunity for a full hearing and determination must be afforded at least at a time when the potentially irreparable and substantial harm caused by a suspension can still be avoided -- i. e., either before or immediately after suspension." Barry v. Barchi, supra, at 74 (BRENNAN, J., concurring in part).

[**1502] Loudermill's allegations of months-long administrative delay, taken together with the facially divergent results regarding length of administrative delay found in Barchi as compared to Arnett, see n. 4, supra, are sufficient in my mind to require further factual development. In no other way can the third Mathews factor -- "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement [in this case, a speedier hearing and decision] would entail," 424 U.S., at 335 -- sensibly be evaluated in this case. 5 I therefore would remand the delay issue to the District Court for further evidentiary proceedings consistent with the Mathews approach. I respectfully [****46] dissent from the Court's contrary decision in Part V.

[*559] JUSTICE REHNQUIST, dissenting.

In Arnett v. Kennedy, 416 U.S. 134 (1974), six Members of this Court agreed [***515] that a public employee could be dismissed for misconduct without a full hearing prior to termination. A plurality of Justices agreed that [****47] the employee was entitled to exactly what Congress gave him, and no more. THE CHIEF JUSTICE, Justice Stewart, and I said:

"Here appellee did have a statutory expectancy that he not be removed other than for 'such cause as will promote the efficiency of [the] service.' But the very section of the statute which granted him that right, a right which had previously existed only by virtue of administrative regulation, expressly

5 In light of the complete absence of record evidence, it is perhaps unsurprising that the Court of Appeals below was forced to speculate that "[the] delays in the instant cases in all likelihood were inadvertent." 721 F.2d, at 564, n. 19. Similarly, the Cleveland Board of Education and Civil Service Commission assert only that "[no] authority is necessary to support the proposition" that administrative resolution of a case like Loudermill's in less than nine months is "almost impossible." Brief for Respondents in No. 83-6392, p. 8, n. 4. To the contrary, however, I believe our precedents clearly require demonstration of some "authority" in these circumstances.

470 U.S. 532, *556; 105 S. Ct. 1487, **1501; 84 L. Ed. 2d 494, ***513; 1985 U.S. LEXIS 68, ****41

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provided also for the procedure by which 'cause' was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. In the area of federal regulation of government employees, where in the absence of statutory limitation the governmental employer has had virtually uncontrolled latitude in decisions as to hiring and firing, Cafeteria Workers v. McElroy, 367 U.S. 886, 896-897 (1961), we do not believe that a statutory [****48] enactment such as the Lloyd-La Follette Act may be parsed as discretely as appellee urges. Congress was obviously intent on according a measure of statutory job security to governmental employees which they had not previously enjoyed, but was likewise intent on excluding more elaborate procedural requirements which it felt would make the operation of the new scheme unnecessarily burdensome in practice. Where the focus of legislation was thus strongly on the procedural mechanism for enforcing the substantive [*560] right which was simultaneously conferred, we decline to conclude that the substantive right may be viewed wholly apart from the procedure provided for its enforcement. The employee's statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which Congress has designated for the determination of cause." Id., at 151-152.

In these cases, the relevant Ohio statute provides in its first paragraph that

"[the] tenure of every officer or employee in the classified service of the state [**1503] and the counties, civil service townships, cities, city health districts, general health [****49] districts, and city school districts thereof, holding a position under this chapter of the Revised Code, shall be during good behavior and efficient service and no such officer or employee shall be reduced in pay or position, suspended, or removed, except . . . for incompetency, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of such sections or the rules of the director of administrative services or the commission, or any other failure of good behavior, or any other acts of misfeasance, [***516] malfeasance, or nonfeasance in office." Ohio Rev. Code Ann. § 124.34 (1984).

The very next paragraph of this section of the Ohio Revised Code provides that in the event of suspension of more than three days or removal the appointing authority shall furnish the employee with the stated reasons for his removal. The

next paragraph provides that within 10 days following the receipt of such a statement, the employee may appeal in writing to the State Personnel Board of Review or the Commission, such appeal shall be heard within 30 days from the time of its filing, and the Board may affirm, disaffirm, [****50] or modify the judgment of the appointing authority.

[*561] Thus in one legislative breath Ohio has conferred upon civil service employees such as respondents in these cases a limited form of tenure during good behavior, and prescribed the procedures by which that tenure may be terminated. Here, as in Arnett, "[the] employee's statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which [the Ohio Legislature] has designated for the determination of cause." 416 U.S., at 152 (opinion of REHNQUIST, J.). We stated in Board of Regents v. Roth, 408 U.S. 564, 577 (1972):

"Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits."

We ought to recognize the totality of the State's definition of the property right in question, and not merely seize upon one of several paragraphs in a unitary [****51] statute to proclaim that in that paragraph the State has inexorably conferred upon a civil service employee something which it is powerless under the United States Constitution to qualify in the next paragraph of the statute. This practice ignores our duty under Roth to rely on state law as the source of property interests for purposes of applying the Due Process Clause of the Fourteenth Amendment. While it does not impose a federal definition of property, the Court departs from the full breadth of the holding in Roth by its selective choice from among the sentences the Ohio Legislature chooses to use in establishing and qualifying a right.

Having concluded by this somewhat tortured reasoning that Ohio has created a property right in the respondents in these cases, the Court naturally proceeds to inquire what process is "due" before the respondents may be divested of [*562] that right. This customary "balancing" inquiry conducted by the Court in these cases reaches a result that is quite unobjectionable, but it seems to me that it is devoid of any principles which will either instruct or endure. The balance is simply an ad hoc weighing which depends to a great extent [****52] upon how the Court subjectively views the underlying interests at stake. The results in previous cases

470 U.S. 532, *559; 105 S. Ct. 1487, **1502; 84 L. Ed. 2d 494, ***515; 1985 U.S. LEXIS 68, ****47

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and in these cases have been quite unpredictable. To paraphrase Justice Black, today's balancing act [***517] requires a "pretermination opportunity to respond [**1504] " but there is nothing that indicates what tomorrow's will be. Goldberg v. Kelly, 397 U.S. 254, 276 (1970) (Black, J., dissenting). The results from today's balance certainly do not jibe with the result in Goldberg or Mathews v. Eldridge, 424 U.S. 319 (1976). * The lack of [*563] any principled standards in this area means that these procedural due process cases will recur time and again. Every different set of facts will present a new issue on what process was due and when. One way to avoid this subjective and varying interpretation of the Due Process Clause in cases such as these is to hold that one who avails himself of government entitlements accepts the grant of tenure along with its inherent limitations.

[****53] Because I believe that the Fourteenth Amendment of the United States Constitution does not support the conclusion that Ohio's effort to confer a limited form of tenure upon respondents resulted in the creation of a "property right" in their employment, I dissent.

References

* Today the balancing test requires a pretermination opportunity to respond. In Goldberg we required a full-fledged trial-type hearing, and in Mathews we declined to require any pretermination process other than those required by the statute. At times this balancing process may look as if it were undertaken with a thumb on the scale, depending upon the result the Court desired. For example, in Mathews we minimized the importance of the benefit to the recipient, stating that after termination he could always go on welfare to survive. 424 U.S., at 340-343; see also id., at 350 (BRENNAN, J., dissenting). Today, however, the Court exalts the recipient's interest in retaining employment; not a word is said about going on welfare. Conversely, in Mathews we stressed the interests of the State, while today, in a footnote, the Court goes so far as to denigrate the State's interest in firing a school security guard who had lied about a prior felony conviction. Ante, at 545, n. 10.

Today the Court purports to describe the State's interest, ante, at 544-545, but does so in a way that is contrary to what petitioner Boards of Education have asserted in their briefs. The description of the State's interests looks more like a makeweight to support the Court's result. The decision whom to train and employ is strictly a decision for the State. The Court attempts to ameliorate its ruling by stating that a State may always suspend an employee with pay, in lieu of a predischarge hearing, if it determines that he poses a threat. Ibid. This does less than justice to the State's interest in its financial integrity and its interest in promptly terminating an employee who has violated the conditions of his tenure, and ignores Ohio's current practice of paying back wages to wrongfully discharged employees.

15A Am Jur 2d, Civil Service 68

16 Federal Procedure, L Ed, Government Officers and Employees 40:461 et seq.

10 Federal Procedural Forms, L Ed, Government Officers and Employees 35:31 et seq.

24 Am Jur Trials 421, Defending Civil Service Employee from Discharge

USCS, Constitution, 14th Amendment

RIA Employment Coordinator EP-22,631

US L Ed Digest, Civil Service 2; Constitutional Law 528.5, 529, 717, 759, 800.3

L Ed Index to Annos, Civil Service; Due Process of Law; Officers

ALR Quick Index, Civil Service; Discharge from Employment; Due Process of Law; Public Officers and Employees

Federal Quick Index, Civil Service; Discharge from Employment

[****54] Annotation References:

Termination of public employment: right to hearing under due process clause of Fifth or Fourteenth Amendment--Supreme Court cases. 48 L Ed 2d 996.

End of Document

470 U.S. 532, *562; 105 S. Ct. 1487, **1503; 84 L. Ed. 2d 494, ***516; 1985 U.S. LEXIS 68, ****52

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NLRB v. J. Weingarten, Inc.

Supreme Court of the United States

November 18, 1974, Argued ; February 19, 1975, Decided

No. 73-1363

Reporter420 U.S. 251 *; 95 S. Ct. 959 **; 43 L. Ed. 2d 171 ***; 1975 U.S. LEXIS 136 ****; 76 Lab. Cas. (CCH) P10,662; 88 L.R.R.M. 2689

NATIONAL LABOR RELATIONS BOARD v. J. WEINGARTEN, INC.

Prior History: [****1] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

Disposition: 485 F.2d 1135, reversed and remanded.

Core Terms

interview, employees, investigatory interview, union representative, discipline, disciplinary action, bargaining, union representation, concerted activity, mutual aid, industrial, rights, lobby, collective-bargaining, disciplinary, lunch, store manager, decisions, steward, cases, grievance, collective bargaining, investigative, situations, guarantees, provisions, Relations, requests, Telephone, chicken

Case Summary

Procedural PosturePetitioner National Labor Relations Board (NLRB) sought certiorari review of the judgment of the United States Court of Appeals for the Fifth Circuit, which reversed an NLRB decision holding that respondent employer's denial of an employee's request for union representation at an interview, which the employee reasonably believed might result in disciplinary action, was a violation of § 8 of the National Labor Relations Act, 29 U.S.C.S. § 158.

Overview

An employer suspected an employee of theft and conducted an investigatory interview of the employee, at which it denied the employee's request that a union representative be present. No discipline resulted, but when the employee told her shop steward of the events the union filed a claim of unfair labor practice with the NLRB. The NLRB held that the employer's

actions violated § 8(a)(1) because the employee had a right to union representation at the interview under the guarantee of § 7 of the National Labor Relations Act, 29 U.S.C.S. § 157. The Fifth Circuit held that it was bound by its precedent and prior decisions of the NLRB in ruling against the NLRB's construction of § 7. The court held that the NLRB's construction was permissible and entitled to deference. The court held that the development of national labor law was not frozen by the prior decisions of the NLRB, but the NLRB was free to use its experience and special competence to develop labor law in light of changing industrial practices.

OutcomeThe court reversed the judgment of the court of appeals and remanded with directions to enter a judgment enforcing the NLRB's order.

LexisNexis® Headnotes

Business & Corporate Compliance > ... > Unfair Labor Practices > Employer Violations > Interference With Protected Activities

Labor & Employment Law > Collective Bargaining & Labor Relations > Unfair Labor Practices > General Overview

HN1[ ] Employer Violations, Interference With Protected Activities

Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C.S. § 158 (a)(1), provides that it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in 29 U.S.C.S. § 157.

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Labor & Employment Law > Collective Bargaining & Labor Relations > Right to Organize

HN2[ ] Collective Bargaining & Labor Relations, Right to Organize

See 29 U.S.C.S. § 157.

Business & Corporate Compliance > ... > Unfair Labor Practices > Employer Violations > Interference With Protected Activities

Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations

Labor & Employment Law > Collective Bargaining & Labor Relations > Protected Activities

Labor & Employment Law > Collective Bargaining & Labor Relations > Unfair Labor Practices > General Overview

Labor & Employment Law > ... > Unfair Labor Practices > Employer Violations > Organizing & Voting Interference

HN3[ ] Employer Violations, Interference With Protected Activities

An employee's right to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline inheres in the guarantee of § 7 of the National Labor Relations Act, 29 U.S.C.S. § 157, of the right of employees to act in concert for mutual aid and protection. The denial of this right has a reasonable tendency to interfere with, restrain, and coerce employees in violation of § 8(a)(1) of the Act, 29 U.S.C.S. § 158. Thus, it is a serious violation of the employee's individual right to engage in concerted activity by seeking the assistance of his statutory representative if the employer denies the employee's request and compels the employee to appear unassisted at an interview which may put his job security in jeopardy.

Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations

HN4[ ] Labor Arbitration, Discipline, Layoffs & Terminations

An employee's right to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline arises only in situations where the employee requests representation. In other words, the employee may forgo his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative.

Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations

HN5[ ] Labor Arbitration, Discipline, Layoffs & Terminations

The employee's right to request union representation as a condition of participation in an interview is limited to situations where the employee reasonably believes the investigation will result in disciplinary action. The rule does not apply to such run-of-the-mill shop-floor conversations as, for example, the giving of instructions or training or needed corrections of work techniques. In such cases there cannot normally be any reasonable basis for an employee to fear that any adverse impact may result from the interview, and thus there is no reasonable basis for him to seek the assistance of his representative.

Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations

HN6[ ] Labor Arbitration, Discipline, Layoffs & Terminations

"Reasonable ground" is measured by objective standards under all the circumstances of the case. In the context of an employee's reasonable belief that an employer's investigation will result in disciplinary action, courts will reject any rule that requires a probe of an employee's subjective motivations as involving an endless and unreliable inquiry. Reasonableness, as a standard, is prescribed in several places in the National Labor Relations Act itself.

Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations

HN7[ ] Labor Arbitration, Discipline, Layoffs &

420 U.S. 251, *251; 95 S. Ct. 959, **959; 43 L. Ed. 2d 171, ***171; 1975 U.S. LEXIS 136, ****1

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Terminations

Exercise of the employee's right to refuse to submit without union representation to an interview that he reasonably fears may result in his discipline may not interfere with legitimate employer prerogatives. The employer has no obligation to justify his refusal to allow union representation, and despite refusal, the employer is free to carry on his inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview and forgoing any benefits that might be derived from one.

Business & Corporate Compliance > ... > Labor & Employment Law > Collective Bargaining & Labor Relations > Duty to Bargain

Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations

HN8[ ] Collective Bargaining & Labor Relations, Duty to Bargain

An employer has no duty to bargain with any union representative who may be permitted to attend an investigatory interview. A union is not given any particular rights with respect to predisciplinary discussions, which it is not able to secure during collective-bargaining negotiations. There is a distinction between disciplinary and investigatory interviews and a mandatory affirmative obligation to meet with the union representative is imposed only in the case of the disciplinary interview. The employer has no duty to bargain with the union representative at an investigatory interview. The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them. The employer, however, is free to insist that he is only interested, at that time, in hearing the employee's own account of the matter under investigation.

Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations

HN9[ ] Labor Arbitration, Discipline, Layoffs & Terminations

The action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer

clearly falls within the literal wording of § 7 of the National Labor Relations Act, 29 U.S.C.S. § 157, that employees shall have the right to engage in concerted activities for the purpose of mutual aid or protection. This is true even though the employee alone may have an immediate stake in the outcome; he seeks aid or protection against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly.

Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations

HN10[ ] Labor Arbitration, Discipline, Layoffs & Terminations

The quantum of proof that the employer considers sufficient to support disciplinary action is of concern to the entire bargaining unit. A slow accretion of custom and practice may come to control the handling of disciplinary disputes. If, for example, the employer adopts a practice of considering a foreman's unsubstantiated statements sufficient to support disciplinary action, employee protection against unwarranted punishment is affected. The presence of a union steward allows protection of this interest by the bargaining representative.

Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations

HN11[ ] Labor Arbitration, Discipline, Layoffs & Terminations

In § 1 of the National Labor Relations Act, 29 U.S.C.S. § 151, the Act declares that it is a goal of national labor policy to protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of mutual aid or protection. To that end the Act is designed to eliminate the inequality of bargaining power between employees and employers. Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate, and bars recourse to the safeguards the Act provided to redress the perceived imbalance of economic

420 U.S. 251, *251; 95 S. Ct. 959, **959; 43 L. Ed. 2d 171, ***171; 1975 U.S. LEXIS 136, ****1

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power between labor and management.

Labor & Employment Law > ... > Labor Arbitration > Judicial Review > General Overview

HN12[ ] Labor Arbitration, Judicial Review

The use by an administrative agency of the evolutional approach is particularly fitting. To hold that the National Labor Relations Board's earlier decisions froze the development of an important aspect of the national labor law would misconceive the nature of administrative decisionmaking. Cumulative experience begets understanding and insight by which judgments are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process.

Labor & Employment Law > ... > Labor Arbitration > Judicial Review > General Overview

Labor & Employment Law > Collective Bargaining & Labor Relations > Protected Activities

HN13[ ] Labor Arbitration, Judicial Review

The responsibility to adapt the National Labor Relations Act to changing patterns of industrial life is entrusted to the National Labor Relations Board. A court impermissibly encroaches upon the Board's function in determining for itself that an employee has no need for union assistance at an investigatory interview. It is the province of the Board, not the courts, to determine whether or not the need exists in light of changing industrial practices and the Board's cumulative experience in dealing with labor-management relations. For the Board has the special function of applying the general provisions of the Act to the complexities of industrial life and its special competence in this field is the justification for the deference accorded its determination.

Labor & Employment Law > ... > Labor Arbitration > Judicial Review > General Overview

Labor & Employment Law > Collective Bargaining & Labor Relations > Judicial Review

HN14[ ] Labor Arbitration, Judicial Review

Reviewing courts are of course not to stand aside and rubber stamp National Labor Relations Board determinations that run contrary to the language or tenor of the National Labor Relations Act. But where the Board's construction, while it may not be required by the Act, is at least permissible under it, and insofar as the Board's application of that meaning engages in the difficult and delicate responsibility of reconciling conflicting interests of labor and management, the balance struck by the Board is subject to limited judicial review.

Labor & Employment Law > Collective Bargaining & Labor Relations > Labor Arbitration > Discipline, Layoffs & Terminations

HN15[ ] Labor Arbitration, Discipline, Layoffs & Terminations

Even where such a right is not explicitly provided in a labor agreement, a well-established current of arbitral authority sustains the right of union representation at investigatory interviews which the employee reasonably believes may result in disciplinary action against him.

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Summary

The representative of an employer conducted an investigatory interview with one of the employer's workers regarding the employee's suspected theft of food from the employer. During the interview the employee requested that the union shop steward or some other union representative be called to the interview, but her several requests for such representation were denied. An unfair labor practice proceeding was brought, and the National Labor Relations Board held that the employer's denial of the employee's request for union representation at the interview, which interview the employee reasonably believed might result in disciplinary action, constituted an unfair labor practice under 8(a)(1) of the National Labor Relations Act (29 USCS 158(a)(1)) since the denial of representation at the interview interfered with, restrained, and coerced the individual right of employees, protected by 7 of the Act (29 USCS 157), to engage in concerted activities for mutual aid or protection (202 NLRB 446). The United States Court of Appeals for the Fifth Circuit, holding that the Board's present construction of 7 of the Act, contrary to its prior construction, was impermissible, refused to enforce the Board's order which directed that the employer cease and desist from requiring an employee to take part in an

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investigatory interview without union representation if the employee requested representation and reasonably feared disciplinary action (485 F2d 1135).

On certiorari, the United States Supreme Court reversed and remanded, directing the Court of Appeals to enforce the Board's order. In an opinion by Brennan, J., expressing the view of six members of the court, it was held that the action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer fell within the literal wording of 7 of the Act that employees have the right to engage in "concerted activities" for the purpose of "mutual aid or protection," and that notwithstanding that the Board's decision marked a departure from the Board's own precedents, the Board had (1) reached a fair and reasoned balance upon a question within its special competence, (2) arrived at a construction of 7 of the Act which did not exceed the reach of the section, and (3) adequately explicated the basis of its interpretation.

Burger, Ch. J., dissented, expressing the view that although the Board had the power to change its position with regard to the question of representation at an investigatory interview, the Board had not sufficiently explained its departure from its prior decisions, and that remanding to the Board for an explanation of its changed view was necessary.

Powell, J., joined by Stewart, J., dissenting, asserted that (1) union representation at investigatory interviews was a matter that Congress left to the bargaining process, (2) the right announced by the court was not among those that Congress intended to protect in 7 of the Act, and (3) the type of personalized interview with which the court was concerned was not "concerted activity" within the meaning of the Act.

Headnotes

LABOR §49 > investigatory interview -- union representation --

unfair labor practice -- > Headnote:

LEdHN[1A][ ] [1A]LEdHN[1B][ ] [1B]LEdHN[1C][ ] [1C]LEdHN[1D][ ] [1D]

It is a permissible construction of 7 of the National Labor Relations Act (29 USCS 157) granting employees the right to engage in concerted activities for the purpose of mutual aid or protection, for the National Labor Relations Board, contrary to its earlier decisions, to hold that it is an unfair labor practice in violation of 8(a)(1) of the Act (29 USCS 158(a)(1)) for an employer to deny an employee's request that the employee's union representative be present at an investigatory

interview which the employee reasonably believes might result in disciplinary action, on the ground that such denial interfered with, restrained, and coerced the individual right of employees, protected by 7 of the Act, to engage in concerted activities for mutual aid or protection, and a Federal Court of Appeals errs in holding that the Board's construction of 7 is impermissible and in refusing to enforce the Board's order directing the employer to cease and desist from requiring any employee to take part in an investigatory interview without union representation if the employee requests representation and reasonably fears disciplinary action, where, notwithstanding that the Board's own precedents may be read as reaching a contrary conclusion, (1) the Board reaches a fair and reasoned balance upon a question within its special competence, (2) the Board's newly arrived at construction of 7 of the Act does not exceed the reach of the section, but plainly effectuates the most fundamental purposes of the Act and gives recognition to the right when it is most useful to both employee and employer, and (3) the Board adequately explicates the basis of its interpretation.

LABOR §49 > reasonable belief of discipline -- employee's

subjective motivations -- > Headnote:

LEdHN[2A][ ] [2A]LEdHN[2B][ ] [2B]

Any rule of the National Labor Relations Board that requires a probe of an employee's subjective motivations to determine whether the employee has a reasonable belief that an investigatory interview by the employer will result in disciplinary action is improper as involving an endless and unreliable inquiry.

LABOR §49 > union representation at investigatory interview --

disciplinary action -- reasonable belief -- > Headnote:

LEdHN[3A][ ] [3A]LEdHN[3B][ ] [3B]

An employee who is denied the presence of her union representative at an investigatory interview conducted by her employer with regard to suspected theft by the employee has a reasonable belief that the investigatory interview will result in disciplinary action--a requirement for the employee to have a right to request union representation as a condition of her participation in the interview--when a collective bargaining agreement provides that the employer must give a warning notice prior to discharging an employee in all instances, except where the cause of the discharge is dishonesty.

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LABOR §49 > confrontation with employer -- assistance of union

representative -- concerted activities -- > Headnote:

LEdHN[4][ ] [4]

The action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer falls within the literal wording of 7 of the National Labor Relations Act (29 USCS 157) that employees have the right to engage in "concerted activities" for the purpose of "mutual aid or protection," even though the employee alone may have an immediate stake in the outcome; concerted activity for mutual aid or protection is present, since the union representative who participates at a confrontation safeguards not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly.

LAW §4 > construction of federal statute -- evolutional approach --

> Headnote:

LEdHN[5][ ] [5]

In construing federal statutes it is particularly fitting for an administrative agency to use the evolutional approach.

LABOR §48 > National Labor Relations Act -- responsibility of

NLRB -- > Headnote:

LEdHN[6][ ] [6]

The responsibility to adapt the National Labor Relations Act (29 USCS 151 et seq.) to changing patterns of industrial life is entrusted to the National Labor Relations Board, and it is the province of the Board, not the courts, to determine, in light of changing industrial practices and the Board's cumulative experience in dealing with labor-management relations, whether or not the need of employees to engage in concerted activities for their mutual aid and protection exists.

LABOR §48 > function of NLRB -- deference to NLRB

determination -- > Headnote:

LEdHN[7][ ] [7]

The National Labor Relations Board has the special function of applying the general provisions of the National Labor Relations Act (29 USCS 151 et seq.) to the complexities of industrial life, and the Board's special competence in the field justifies the deference accorded to its determination by a reviewing court.

LABOR §89 > NLRB determinations -- court review --

> Headnote:

LEdHN[8][ ] [8]

Reviewing courts are not to stand aside and rubber stamp National Labor Relations Board determinations that run contrary to the language or tenor of the National Labor Relations Act (29 USCS 151 et seq.), but where the Board's construction, while not required by the Act, is at least permissible under it and involves the Board's engaging in the difficult and delicate responsibility of reconciling conflicting interests of labor and management, the balance struck by the Board is subject to limited judicial review.

Syllabus

During the course of an investigatory interview at which an employee of respondent was being interrogated by a representative of respondent about reported thefts at respondent's store, the employee asked for but was denied the presence at the interview of her union representative. The union thereupon filed an unfair labor practice charge with the National Labor Relations Board (NLRB). In accordance with its construction in Mobil Oil Corp., 196 N. L. R. B. 1052, enforcement denied, 482 F.2d 842, and Quality Mfg. Co., 195 N. L. R. B. 197, enforcement denied, 481 F.2d 1018, rev'd, post, p. 276, the NLRB held that the employer had committed an unfair labor practice and issued a cease-and-desist order, which, however, the Court of Appeals subsequently refused to enforce, concluding that an employee has no "need" for union assistance at an investigatory interview. Held: The employer violated § 8 (a)(1) of the National Labor Relations Act because it interfered with, restrained, [****2] and coerced the individual right of an employee, protected by § 7, "to engage in . . . concerted activities for . . . mutual aid or protection . . . ," when it denied the employee's request for the presence of her union representative at the investigatory interview that the employee reasonably believed would result in disciplinary action. Pp. 256-268.

(a) The NLRB's holding is a permissible construction of

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"concerted activities for . . . mutual aid or protection" by the agency charged by Congress with enforcement of the Act. Pp. 260-264.

(b) The NLRB has the "special function of applying the general provisions of the Act to the complexities of industrial life," NLRB v. Erie Resistor Corp., 373 U.S. 221, 236, and its special competence in this field is the justification for the deference accorded its determination. Pp. 264-267.

Counsel: Patrick Hardin argued the cause for petitioner. With him on the brief were Solicitor General Bork, Peter G. Nash, John S. Irving, Norton J. Come, and Linda Sher.

Neil Martin argued the cause and filed a brief for respondent. *

[****3]

Judges: BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. BURGER, C. J., filed a dissenting opinion, post, p. 268. POWELL, J., filed a dissenting opinion, in which STEWART, J., joined, post, p. 269.

Opinion by: BRENNAN

Opinion

[*252] [***175] [**961] MR. JUSTICE BRENNAN delivered the opinion of the Court.

LEdHN[1A][ ] [1A]The National Labor Relations Board held in this case that respondent employer's denial of an employee's request that her union representative be present at an investigatory interview which the employee reasonably believed might result in disciplinary action constituted an unfair labor practice in violation of § 8 (a)(1) of the National Labor Relations Act, 1 as amended, 61 Stat. 140, because it interfered with, restrained, and coerced the individual right of the employee, protected by § 7 of the Act, "to engage in . . . concerted activities for . . . mutual aid or protection . . . ."

* Jerry Kronenberg and Milton Smith filed a brief for the Chamber of Commerce of the United States as amicus curiae urging affirmance.

1 HN1[ ] Section 8 (a)(1), 29 U. S. C. § 158 (a)(1), provides that it is an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title."

2 [****5] 202 N. L. R. B. 446 (1973). [*253] The Court of Appeals for the Fifth Circuit held that this was an impermissible construction of § 7 and [****4] refused to enforce the Board's order that directed respondent to cease and desist from requiring any employee to take part in an investigatory interview without union representation if the employee requests representation and reasonably fears disciplinary action. 485 F.2d 1135 (1973). 3 We granted certiorari [***176] and set [**962] the case for oral argument with No. 73-765, Garment Workers v. Quality Mfg. Co., post, p. 276. 416 U.S. 969 (1974). We reverse.

[****6] [*254] I

Respondent operates a chain of some 100 retail stores with lunch counters at some, and so-called lobby food operations at

2 HN2[ ] Section 7, 29 U. S. C. § 157, provides:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 158 (a)(3) of this title."

3 Accord: NLRB v. Quality Mfg. Co., 481 F.2d 1018 (CA4 1973), rev'd, Garment Workers v. Quality Mfg. Co., post, p. 276; Mobil Oil Corp. v. NLRB, 482 F.2d 842 (CA7 1973). The issue is a recurring one. In addition to this case and Garment Workers v. Quality Mfg. Co., post, p. 276, see Western Electric Co., 205 N. L. R. B. 46 (1973); New York Telephone Co., 203 N. L. R. B. 180 (1973); National Can Corp., 200 N. L. R. B. 1116 (1972); Western Electric Co., 198 N. L. R. B. 82 (1972); Mobil Oil Corp., 196 N. L. R. B. 1052 (1972), enforcement denied, 482 F.2d 842 (CA7 1973); Lafayette Radio Electronics, 194 N. L. R. B. 491 (1971); Illinois Bell Telephone Co., 192 N. L. R. B. 834 (1971); United Aircraft Corp., 179 N. L. R. B. 935 (1969), aff'd on another ground, 440 F.2d 85 (CA2 1971); Texaco, Inc., Los Angeles Terminal, 179 N. L. R. B. 976 (1969); Wald Mfg. Co., 176 N. L. R. B. 839 (1969), aff'd on other grounds, 426 F.2d 1328 (CA6 1970); Dayton Typographic Service, Inc., 176 N. L. R. B. 357 (1969); Jacobe-Pearson Ford, Inc., 172 N. L. R. B. 594 (1968); Chevron Oil Co., 168 N. L. R. B. 574 (1967); Texaco, Inc., Houston Producing Division, 168 N. L. R. B. 361 (1967), enforcement denied, 408 F.2d 142 (CA5 1969); Electric Motors & Specialties, Inc., 149 N. L. R. B. 1432 (1964); Dobbs Houses, Inc., 145 N. L. R. B. 1565 (1964); Ross Gear & Tool Co., 63 N. L. R. B. 1012 (1945), enforcement denied, 158 F.2d 607 (CA7 1947). See generally Brodie, Union Representation and the Disciplinary Interview, 15 B. C. Ind. & Com. L. Rev. 1 (1973); Comment, Union Presence in Disciplinary Meetings, 41 U. Chi. L. Rev. 329 (1974).

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others, dispensing food to take out or eat on the premises. Respondent's sales personnel are represented for collective-bargaining purposes by Retail Clerks Union, Local 455. Leura Collins, one of the sales personnel, worked at the lunch counter at Store No. 2 from 1961 to 1970 when she was transferred to the lobby operation at Store No. 98. Respondent maintains a companywide security department staffed by "Loss Prevention Specialists" who work undercover in all stores to guard against loss from shoplifting and employee dishonesty. In June 1972, "Specialist" Hardy, without the knowledge of the store manager, spent two days observing the lobby operation at Store No. 98 investigating a report that Collins was taking money from a cash register. When Hardy's surveillance of Collins at work turned up no evidence to support the report, Hardy disclosed his presence to the store manager and reported that he could find nothing wrong. The store manager then told him that a fellow lobby employee of Collins had just reported that Collins had purchased [****7] a box of chicken that sold for $ 2.98, but had placed only $ 1 in the cash register. Collins was summoned to an interview with Specialist Hardy and the store manager, and Hardy questioned her. The Board found that several times during the questioning she asked the store manager to call the union shop steward or some other union representative to the interview, and that her requests were denied. Collins admitted that she had purchased some chicken, a loaf of bread, and some cake which she said she paid for and donated to her church for a church dinner. She explained that she purchased four pieces of chicken for which the price was $ 1, but that because the lobby department [*255] was out of the small-size boxes in which such purchases were usually packaged she put the chicken into the larger box normally used for packaging larger quantities. Specialist Hardy left the interview to check Collins' explanation with the fellow employee who had reported Collins. This employee confirmed that the lobby department had run out of small boxes and also said that she did not know how many pieces of chicken Collins had put in the larger box. Specialist Hardy returned to the interview, [****8] told Collins that her explanation had checked out, that he was sorry if he had inconvenienced her, and that the matter was closed.

Collins thereupon burst into tears and blurted out that the only thing she had ever gotten from the store without paying for it was her free lunch. This revelation surprised the store manager and Hardy because, although free lunches had been provided at Store No. 2 when Collins [***177] worked at the lunch counter there, company policy was not to provide free lunches at stores operating lobby departments. In consequence, the store manager and Specialist Hardy closely [**963] interrogated Collins about violations of the policy in the lobby department at Store No. 98. Collins again asked

that a shop steward be called to the interview, but the store manager denied her request. Based on her answers to his questions, Specialist Hardy prepared a written statement which included a computation that Collins owed the store approximately $ 160 for lunches. Collins refused to sign the statement. The Board found that Collins, as well as most, if not all, employees in the lobby department of Store No. 98, including the manager of that department, took [****9] lunch from the lobby without paying for it, apparently because no contrary policy was ever made known to them. Indeed, when company headquarters advised Specialist Hardy by telephone during the interview that [*256] headquarters itself was uncertain whether the policy against providing free lunches at lobby departments was in effect at Store No. 98, he terminated his interrogation of Collins. The store manager asked Collins not to discuss the matter with anyone because he considered it a private matter between her and the company, of no concern to others. Collins, however, reported the details of the interview fully to her shop steward and other union representatives, and this unfair labor practice proceeding resulted. 4

[****10] II

The Board's construction that § 7 creates a statutory right in an employee to refuse to submit without union representation to an interview which he reasonably fears may result in his discipline was announced in its decision and order of January 28, 1972, in Quality Mfg. Co., 195 N. L. R. B. 197, considered in Garment Workers v. Quality Mfg. Co., post, p. 276. In its opinions in that case and in Mobil Oil Corp., 196 N. L. R. B. 1052, decided May 12, 1972, three months later, the Board shaped the contours and limits of the statutory right.

First, HN3[ ] the right inheres in § 7's guarantee of the right of employees to act in concert for mutual aid and protection. In Mobil Oil, the Board stated:

"An employee's right to union representation upon request is based on Section 7 of the Act which guarantees the right of employees to act in concert for [*257] 'mutual aid and protection.' The denial of this right has a reasonable tendency to interfere with, restrain, and coerce employees in violation of Section 8 (a)(1) of the Act. Thus, it is a serious violation of

4 The charges also alleged that respondent had violated § 8 (a)(5) by unilaterally changing a condition of employment when, the day after the interview, respondent ordered discontinuance of the free lunch practice. Because respondent's action was an arbitrable grievance under the collective-bargaining agreement, the Board, pursuant to the deferral-to-arbitration policy adopted in Collyer Insulated Wire, 192 N. L. R. B. 837 (1971), "dismissed" the § 8 (a)(5) allegation. No issue involving that action is before us.

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the employee's individual right to engage in concerted activity by seeking the assistance [****11] of his statutory representative if the employer denies the employee's request and compels the employee to appear unassisted [***178] at an interview which may put his job security in jeopardy. Such a dilution of the employee's right to act collectively to protect his job interests is, in our view, unwarranted interference with his right to insist on concerted protection, rather than individual self-protection, against possible adverse employer action." Ibid.

Second, HN4[ ] the right arises only in situations where the employee requests representation. In other words, the employee may forgo his guaranteed right and, if he prefers, participate in an interview unaccompanied by his union representative.

LEdHN[2A][ ] [2A] LEdHN[3A][ ] [3A]Third, HN5[ ] the employee's right to request representation as a condition of participation in an interview is limited to situations where the employee reasonably [**964] believe the investigation will result in disciplinary action. 5 Thus the Board stated in Quality:

"We would not apply the rule to such run-of-the-

5 The Board stated in Quality: "HN6[ ] 'Reasonable ground' will of course be measured, as here, by objective standards under all the circumstances of the case." 195 N. L. R. B. 197, 198 n. 3. In NLRB v. Gissel Packing Co., 395 U.S. 575, 608 (1969), the Court announced that it would "reject any rule that requires a probe of an employee's subjective motivations as involving an endless and unreliable inquiry," and we reaffirm that view today as applicable also in the context of this case. Reasonableness, as a standard, is prescribed in several places in the Act itself. For example, an employer is not relieved of responsibility for discrimination against an employee "if he has reasonable grounds for believing" that certain facts exist, §§ 8 (a)(3)(A), (B), 29 U. S. C. §§ 158 (a)(3)(A), (B); also, preliminary injunctive relief against certain conduct must be sought if "the officer or regional attorney to whom the matter may be referred has reasonable cause to believe" such charge is true, § 10 (l), 29 U. S. C. § 160 (l). See also Congoleum Industries, Inc., 197 N. L. R. B. 534 (1972); Cumberland Shoe Corp., 144 N. L. R. B. 1268 (1963), enforced, 351 F.2d 917 (CA6 1965).

The key objective fact in this case is that the only exception to the requirement in the collective-bargaining agreement that the employer give a warning notice prior to discharge is "if the cause of such discharge is dishonesty." Accordingly, had respondent been satisfied, based on its investigatory interview, that Collins was guilty of dishonesty, Collins could have been discharged without further notice. That she might reasonably believe that the interview might result in disciplinary action is thus clear.

mill [****12] [*258] shop-floor conversations as, for example, the giving of instructions or training or needed corrections of work techniques. In such cases there cannot normally be any reasonable basis for an employee to fear that any adverse impact may result from the interview, and thus we would then see no reasonable basis for him to seek the assistance of his representative." 195 N. L. R. B., at 199.

LEdHN[2B][ ] [2B] LEdHN[3B][ ] [3B]

[****13] Fourth, HN7[ ] exercise of the right may not interfere with legitimate employer prerogatives. The employer has no obligation to justify his refusal to allow union representation, and despite refusal, the employer is free to carry on his inquiry without interviewing the employee, and thus leave to the employee the choice between having an interview unaccompanied by his representative, or having no interview and forgoing any benefits that might be derived from one. As stated in Mobil Oil:

"The employer may, if it wishes, advise the employee that it will not proceed with the interview unless the employee is willing to enter the interview [*259] unaccompanied [***179] by his representative. The employee may then refrain from participating in the interview, thereby protecting his right to representation, but at the same time relinquishing any benefit which might be derived from the interview. The employer would then be free to act on the basis of information obtained from other sources." 196 N. L. R. B., at 1052.

The Board explained in Quality:

"This seems to us to be the only course consistent with all of the provisions of our Act. It permits the [****14] employer to reject a collective course in situations such as investigative interviews where a collective course is not required but protects the employee's right to protection by his chosen agents. Participation in the interview is then voluntary, and, if the employee has reasonable ground to fear that the interview will adversely affect his continued employment, or even his working conditions, he may choose to forego it unless he is afforded the safeguard of his representative's presence. He would then also forego whatever benefit might come from the interview. And, in that event, the employer would, of course, be free to act on the basis of whatever information he had and without such additional facts as might have been gleaned through the interview." 195 N. L. R. B., at 198-199.

[**965] Fifth, HN8[ ] the employer has no duty to bargain with any union representative who may be permitted to attend the investigatory interview. The Board said in Mobil, "we are not giving the Union any particular rights with respect to

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predisciplinary discussions which it otherwise was not able to secure during collective-bargaining negotiations." 196 N. L. R. B., at 1052 n. 3. The Board thus [****15] adhered to its decisions distinguishing between disciplinary [*260] and investigatory interviews, imposing a mandatory affirmative obligation to meet with the union representative only in the case of the disciplinary interview. Texaco, Inc., Houston Producing Division, 168 N. L. R. B. 361 (1967); Chevron Oil Co., 168 N. L. R. B. 574 (1967); Jacobe-Pearson Ford, Inc., 172 N. L. R. B. 594 (1968). The employer has no duty to bargain with the union representative at an investigatory interview. "The representative is present to assist the employee, and may attempt to clarify the facts or suggest other employees who may have knowledge of them. The employer, however, is free to insist that he is only interested, at that time, in hearing the employee's own account of the matter under investigation." Brief for Petitioner 22.

III

LEdHN[1B][ ] [1B]The Board's holding is a permissible construction of "concerted activities for . . . mutual aid or protection" by the agency charged by Congress with enforcement of the Act, and should have been sustained.

LEdHN[4][ ] [4] HN9[ ] [****16] The action of an employee in seeking to have the assistance of his union representative at a confrontation with his employer clearly falls within the literal wording of § 7 that "[employees] shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection." Mobil Oil Corp. v. NLRB, 482 F.2d 842, 847 (CA7 1973). This is true even though the employee alone may have an immediate stake in the outcome; he seeks [***180] "aid or protection" against a perceived threat to his employment security. The union representative whose participation he seeks is, however, safeguarding not only the particular employee's interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment [*261] unjustly. 6 The representative's presence is an assurance to other employees in the bargaining unit that they, too, can

6 "HN10[ ] The quantum of proof that the employer considers sufficient to support disciplinary action is of concern to the entire bargaining unit. A slow accretion of custom and practice may come to control the handling of disciplinary disputes. If, for example, the employer adopts a practice of considering [a] foreman's unsubstantiated statements sufficient to support disciplinary action, employee protection against unwarranted punishment is affected. The presence of a union steward allows protection of this interest by the bargaining representative." Comment, Union Presence in Disciplinary Meetings, 41 U. Chi. L. Rev. 329, 338 (1974).

obtain his aid and protection if called upon to attend a like interview. Concerted activity for mutual aid or protection is therefore as present here as it was held to be in NLRB v. Peter Cailler Kohler [****17] Swiss Chocolates Co., 130 F.2d 503, 505-506 (CA2 1942), cited with approval by this Court in Houston Contractors Assn. v. NLRB, 386 U.S. 664, 668-669 (1967):

"'When all the other workmen in a shop make common cause with a fellow workman over his separate grievance, and go out on strike in his support, they engage in a "concerted activity" for "mutual aid or protection," although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is "mutual aid" in the most literal sense, as nobody doubts.'"

[****18] The [**966] Board's construction plainly effectuates the most fundamental purposes of the Act. HN11[

] In § 1, 29 U. S. C. § 151, the Act declares that it is a goal of national labor policy to protect "the exercise by workers of full freedom [*262] of association, self-organization, and designation of representatives of their own choosing, for the purpose of . . . mutual aid or protection." To that end the Act is designed to eliminate the "inequality of bargaining power between employees . . . and employers." Ibid. Requiring a lone employee to attend an investigatory interview which he reasonably believes may result in the imposition of discipline perpetuates the inequality the Act was designed to eliminate, and bars recourse to the safeguards the Act provided "to redress the perceived imbalance of economic power between labor and management." American Ship Building Co. v. NLRB, 380 U.S. 300, 316 (1965). Viewed in this light, the Board's recognition that § 7 guarantees an employee's right to the presence of a union representative at an investigatory interview in which the risk of discipline reasonably inheres is within the protective ambit of the section "'read [****19] in the light of the mischief to be corrected and the end to be attained.'" NLRB v. Hearst Publications, Inc., 322 U.S. 111, 124 [***181] (1944).

The Board's construction also gives recognition to the right when it is most useful to both employee and employer. 7 [****21] A single employee confronted by an employer

7 See, e. g., Independent Lock Co., 30 Lab. Arb. 744, 746 (1958):

"[Participation by the union representative] might reasonably be designed to clarify the issues at this first stage of the existence of a question, to bring out the facts and the policies concerned at this stage, to give assistance to employees who may lack the ability to

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[*263] investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview. Certainly his presence need not transform the interview into an adversary contest. Respondent suggests nonetheless that union representation at this stage is unnecessary because a decision as to employee culpability or disciplinary action can be corrected after the decision to impose discipline has become final. In other words, respondent would defer representation until the filing of a formal grievance challenging the employer's determination of guilt after the employee [****20] has been discharged or otherwise [**967] disciplined. 8 At that point, however, it becomes increasingly difficult for the employee to vindicate himself, and the [*264] value of representation is correspondingly diminished. The employer may then be more concerned with justifying his actions than re-examining them.

IV

express themselves in their cases, and who, when their livelihood is at stake, might in fact need the more experienced kind of counsel which their union steward might represent. The foreman, himself, may benefit from the presence of the steward by seeing the issue, the problem, the implications of the facts, and the collective bargaining clause in question more clearly. Indeed, good faith discussion at this level may solve many problems, and prevent needless hard feelings from arising . . . . [It] can be advantageous to both parties if they both act in good faith and seek to discuss the question at this stage with as much intelligence as they are capable of bringing to bear on the problem."

See also Caterpillar Tractor Co., 44 Lab. Arb. 647, 651 (1965):

"The procedure . . . contemplates that the steward will exercise his responsibility and authority to discourage grievances where the action on the part of management appears to be justified. Similarly, there exists the responsibility upon management to withhold disciplinary action, or other decisions affecting the employees, where it can be demonstrated at the outset that such action is unwarranted. The presence of the union steward is regarded as a factor conducive to the avoidance of formal grievances through the medium of discussion and persuasion conducted at the threshold of an impending grievance. It is entirely logical that the steward will employ his office in appropriate cases so as to limit formal grievances to those which involve differences of substantial merit. Whether this objective is accomplished will depend on the good faith of the parties, and whether they are amenable to reason and persuasion."

8 1 CCH Lab. L. Rep., Union Contracts, Arbitration para. 59,520, pp. 84,988-84,989.

LEdHN[1C][ ] [1C]The Court of Appeals rejected the Board's construction as foreclosed by that court's decision four years earlier in Texaco, Inc., Houston Producing Division v. NLRB, 408 F.2d 142 (1969), and by "a long line of Board decisions, each of which indicates -- either directly or indirectly -- that no union representative need be present" at an investigatory interview. 485 F.2d, at 1137.

[***182] The Board distinguishes Texaco as presenting not the question whether the refusal to allow the employee to have his union representative present constituted a violation of § 8 (a)(1) but rather the question whether § 8 (a)(5) precluded the employer from refusing to deal with the union. We need not determine whether Texaco is distinguishable. Insofar as the Court of Appeals there held that an employer does not violate § 8 (a)(1) if he denies an employee's request for union representation at an investigatory interview, and [****22] requires him to attend the interview alone, our decision today reversing the Court of Appeals' judgment based upon Texaco supersedes that holding.

In respect of its own precedents, the Board asserts that even though some "may be read as reaching a contrary conclusion," they should not be treated as impairing the validity of the Board's construction, because "[these] decisions do not reflect a considered analysis of the issue." Brief for Petitioner 25. 9 [****23] In that circumstance, and in the [*265] light of significant developments in industrial life believed by the Board to have warranted a reappraisal of the question, 10 the

9 The precedents cited by the Court of Appeals are: Illinois Bell Telephone Co., 192 N. L. R. B. 834 (1971); Texaco, Inc., Los Angeles Terminal, 179 N. L. R. B. 976 (1969); Wald Mfg. Co., 176 N. L. R. B. 839 (1969), aff'd, 426 F.2d 1328 (CA6 1970); Dayton Typographic Service, Inc., 176 N. L. R. B. 357 (1969); Jacobe-Pearson Ford, Inc., 172 N. L. R. B. 594 (1968); Chevron Oil Co., 168 N. L. R. B. 574 (1967); Dobbs Houses, Inc., 145 N. L. R. B. 1565 (1964). See also NLRB v. Ross Gear & Tool Co., 158 F.2d 607 (CA7 1947).

10 "There has been a recent growth in the use of sophisticated techniques -- such as closed circuit television, undercover security agents, and lie detectors -- to monitor and investigate the employees' conduct at their place of work. See, e. g., Warwick Electronics, Inc., 46 L. A. 95, 97-98 (1966); Bowman Transportation, Inc., 56 L. A. 283, 286-292 (1972); FMC Corp., 46 L. A. 335, 336-338 (1966). These techniques increase not only the employees' feelings of apprehension, but also their need for experienced assistance in dealing with them. Thus, often, as here and in Mobil, supra, an investigative interview is conducted by security specialists; the employee does not confront a supervisor who is known or familiar to him, but a stranger trained in interrogation techniques. These developments in industrial life warrant a concomitant reappraisal by the Board of their impact on statutory rights. Cf. Boys Markets, Inc.

420 U.S. 251, *263; 95 S. Ct. 959, **966; 43 L. Ed. 2d 171, ***181; 1975 U.S. LEXIS 136, ****21

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Board argues that the case is one where "[the] nature of the problem, as revealed by unfolding variant situations, inevitably involves an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer. And so, it is not surprising that the Board has more or less felt its way . . . and has modified and reformed its standards on the basis of accumulating experience." Electrical Workers v. NLRB, 366 U.S. 667, 674 (1961).

LEdHN[5][ ] [5] [****24] We agree that its earlier precedents do not impair the validity of the Board's construction. That construction in no wise exceeds the reach of § 7, but falls well within the scope of the rights created by that section. HN12[ ] The [**968] use by an administrative agency of the evolutional approach is particularly fitting. To hold that the Board's earlier decisions froze the development of this important aspect [*266] of the national labor law would misconceive the nature of administrative decisionmaking. "'Cumulative experience' begets understanding and insight by which judgments . . . are validated or qualified or invalidated. The constant process of trial and error, on a wider [***183] and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process." NLRB v. Seven-Up Co., 344 U.S. 344, 349 (1953).

LEdHN[6][ ] [6] LEdHN[7][ ] [7] LEdHN[8][ ] [8]HN13[ ] The responsibility to adapt the Act to changing patterns [****25] of industrial life is entrusted to the Board. The Court of Appeals impermissibly encroached upon the Board's function in determining for itself that an employee has no "need" for union assistance at an investigatory interview. "While a basic purpose of section 7 is to allow employees to engage in concerted activities for their mutual aid and protection, such a need does not arise at an investigatory interview." 485 F.2d, at 1138. It is the province of the Board, not the courts, to determine whether or not the "need" exists in light of changing industrial practices and the Board's cumulative experience in dealing with labor-management relations. For the Board has the "special function of applying the general provisions of the Act to the complexities of industrial life," NLRB v. Erie Resistor Corp., 373 U.S. 221, 236 (1963); see Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945); Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 196-197 (1941), and its special competence in this field is the justification for the deference accorded its determination. American Ship Building Co. v. NLRB, 380 U.S., at 316. HN14[ ] Reviewing courts are of course not "to stand aside [****26] and rubber stamp" Board determinations that run contrary to the language or tenor of

v. Retail Clerks, Local 770, 398 U.S. 235, 250." Brief for Petitioner 27 n. 22.

the Act, NLRB v. Brown, 380 U.S. 278, 291 (1965). But the Board's construction here, while it may not be required by the Act, is at least permissible [*267] under it, and insofar as the Board's application of that meaning engages in the "difficult and delicate responsibility" of reconciling conflicting interests of labor and management, the balance struck by the Board is "subject to limited judicial review." NLRB v. Truck Drivers, 353 U.S. 87, 96 (1957). See also NLRB v. Babcock & Wilcox Co., 351 U.S. 105 (1956); NLRB v. Brown, supra; Republic Aviation Corp. v. NLRB, supra. In sum, the Board has reached a fair and reasoned balance upon a question within its special competence, its newly arrived at construction of § 7 does not exceed the reach of that section, and the Board has adequately explicated the basis of its interpretation.

The statutory right confirmed today is in full harmony with actual industrial practice. Many important collective-bargaining agreements have provisions that accord employees rights of union representation at investigatory interviews. [****27] 11 [***184] HN15[ ] Even where such a right is not explicitly provided in the agreement [**969] a "well-established current of arbitral authority" sustains the right of union representation at investigatory interviews which the employee reasonably believes may result in disciplinary action against him. Chevron Chemical Co., 60 Lab. Arb. 1066, 1071 (1973). 12

11 1 BNA Collective Bargaining Negotiations and Contracts 21:22 (General Motors Corp. and Auto Workers, para. 76a); 27:6 (Goodyear Tire & Rubber Co. and Rubber Workers, Art. V (5)); 29:15-29:16 (United States Steel Corp. and United Steelworkers, §§ 8 B [8.4] and [8.7]). See, e. g., the Bethlehem Steel Corp. and United Steelworkers Agreement of 1971, Art. XI, § 4 (d), which provided:

"Any Employee who is summoned to meet in an enclosed office with a supervisor for the purpose of discussing possible disciplinary action shall be entitled to be accompanied by the Assistant Grievance Committeeman designated for the area if he requests such representation, provided such representative is available during the shift."

12 See also Universal Oil Products Co., 60 Lab. Arb. 832, 834 (1973):

"[An] employee is entitled to the presence of a Committeeman at an investigatory interview if he requests one and if the employee has reasonable grounds to fear that the interview may be used to support disciplinary action against him." Allied Paper Co., 53 Lab. Arb. 226 (1969); Thrifty Drug Stores Co., Inc., 50 Lab. Arb. 1253, 1262 (1968); Waste King Universal Products Co., 46 Lab. Arb. 283, 286 (1966); Dallas Morning News, 40 Lab. Arb. 619, 623-624 (1963); The Arcrods Co., 39 Lab. Arb. 784, 788-789 (1962); Valley Iron Works, 33 Lab. Arb. 769, 771 (1960); Schlitz Brewing Co., 33 Lab. Arb. 57, 60 (1959); Singer Mfg. Co., 28 Lab. Arb. 570 (1957);

420 U.S. 251, *265; 95 S. Ct. 959, **967; 43 L. Ed. 2d 171, ***182; 1975 U.S. LEXIS 136, ****23

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[****28]

[*268] LEdHN[1D][ ] [1D]The judgment is reversed and the case is remanded with direction to enter a judgment enforcing the Board's order.

It is so ordered.

Dissent by: BURGER; POWELL

Dissent

MR. CHIEF JUSTICE BURGER, dissenting. *

Today the Court states that, in positing a new § 7 right for employees, the "Board has adequately explicated the basis of its interpretation." Ante, at 267. I agree that the Board has the power to change its position, but since today's cases represent a major change in policy and a departure from Board decisions spanning almost 30 years the change ought to be justified by a reasoned Board opinion. The brief but spectacular evolution of the right, once recognized, illustrates the problem. In Quality Mfg. Co., 195 N. L. R. B. 197, [****29] 198 (1972), the Board distinguished its prior cases on the ground, inter alia, that "none of those cases presented a situation where an employee or his representative had been disciplined or discharged for requesting, or insisting on, union representation in the course of an interview." Yet, soon afterwards [*269] the Board extended the right without explanation to situations where no discipline or discharge resulted. Mobil Oil Corp., 196 N. L. R. B. 1052 (1972); J. Weingarten Inc., 202 N. L. R. B. 446 (1973).

The tortured history and inconsistency of the Board's efforts in this difficult area suggest the need for an explanation by the Board of why the new rule was adopted. However, a much more basic policy demands that the Board explain its new construction. The integrity of the administrative process requires that "[when] the Board so exercises the discretion given to it by Congress, it must 'disclose the basis of its order' and 'give clear indication that it has exercised the discretion with which Congress has empowered it.' Phelps Dodge Corp. v. Labor Board, 313 U.S. 177, 197." NLRB v. Metropolitan

Braniff Airways, Inc., 27 Lab. Arb. 892 (1957); John Lucas & Co., 19 Lab. Arb. 344, 346-347 (1952). Contra, e. g., E. I. duPont de Nemours & Co., 29 Lab. Arb. 646, 652 (1957); United Air Lines, Inc., 28 Lab. Arb. 179, 180 (1956).

* [This opinion applies also to No. 73-765, International Ladies' Garment Workers' Union, Upper South Department, AFL-CIO v. Quality Manufacturing Co. et al., post, p. 276.]

Ins. Co., 380 U.S. 438, 443 [***185] [****30] (1965). Here, there may be very good reasons for adopting the new rule, and the Court suggests some. See ante, at 260-261; 262-264; 265 n. 10. But these reasons are not to be found in the Board's cases. In Metropolitan Ins. Co., supra, at 444, we made it clear that "'courts may not accept appellate counsel's post hoc rationalizations for agency action.'" The Court today gives lip service to the rule that courts are not "'to stand aside and rubber stamp'" Board determinations. Ante, at 266.

I would therefore remand the cases to the Court of Appeals with directions to remand to the Board so that it may enlighten us as to the reasons for this marked change in policy rather than leave with this Court the burden of justifying the change for reasons which we arrive at by inference and surmise.

MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART joins, dissenting.

Section 7 of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U. S. C. § 157, guarantees to [*270] employees the right to "engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection." The Court today construes that right to include union [****31] representation or the presence of another employee 1 at any interview the employee reasonably fears might result in disciplinary action. In my view, such an interview is not concerted activity within the intendment of the Act. An employee's right to have a union representative or another employee present at an investigatory interview is a matter that Congress left to the free and flexible exchange of the bargaining process.

The majority opinion acknowledges that the NLRB has only recently discovered the right to union representation in employer interviews. In fact, as late as 1964 -- after almost 30 years of experience with § 7 -- the Board flatly rejected an employee's [****32] claim that she was entitled to union representation in a "discharge conversation" with the general manager, who later admitted that he had already decided to fire her. The Board adopted the Trial Examiner's analysis:

"I fail to perceive anything in the Act which obliges an employer to permit the presence of a representative of the bargaining agent in every situation where an employer is compelled to admonish or to otherwise take disciplinary

1 While the Court speaks only of the right to insist on the presence of a union representative, it must be assumed that the § 7 right today recognized, affording employees the right to act "in concert" in employer interviews, also exists in the absence of a recognized union. Cf. NLRB v. Washington Aluminum Co., 370 U.S. 9 (1962).

420 U.S. 251, *267; 95 S. Ct. 959, **969; 43 L. Ed. 2d 171, ***184; 1975 U.S. LEXIS 136, ****28

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action against an employee, particularly in those situations where the employee's conduct is unrelated to any legitimate union or concerted activity. An employer undoubtedly has the right to maintain day-to-day discipline in the plant or on the working premises and it seems [*271] to me that only exceptional circumstances should warrant any interference with this right." [***186] Dobbs Houses, Inc., 145 N. L. R. B. 1565, 1571 (1964). 2

[****33] The [**970] convoluted course of litigation from Dobbs Houses to Quality Mfg. hardly suggests that the Board's change of heart resulted from a logical "evolutional approach." Ante, at 265. The Board initially retreated from Dobbs Houses, deciding that it only applied to "investigatory" interviews and holding that if the employer already had decided on discipline the union had a § 8 (a)(5) right to attend the interview. Texaco, Inc., Houston Producing Division, 168 N. L. R. B. 361 (1967), enforcement denied, 408 F.2d 142 (CA5 1969). It reasoned that employee discipline sufficiently affects a "term or condition of employment" to implicate the employer's obligation to consult with the employee's bargaining representative, and that direct dealing with an employee on an issue of discipline violated § 8 (a)(5). 3 [****34] For several years, the Board adhered to its distinction between "investigative" and "disciplinary" interviews, dismissing claims under both [*272] § 8 (a)(1) and § 8 (a)(5) in the absence of evidence that the employer had decided to discipline the employee. 4

2 In one earlier case the Board had found a § 8 (a)(1) violation in the employer's refusal to admit a union representative to an interview. Ross Gear & Tool Co., 63 N. L. R. B. 1012, 1033-1034 (1945), enforcement denied, 158 F.2d 607, 611-614 (CA7 1947). In that case, however, the Board found that the employee, a union committee member, was called in to discuss a pending union issue. The Board found that discharging her for insisting on the presence of the entire committee was a discriminatory discharge under § 8 (a)(1). The opinion in Dobbs Houses distinguished Ross Gear on the ground that the matter under investigation was protected union activity. 145 N. L. R. B., at 1571.

3 The Board has not been called upon to pursue its § 8 (a)(5) theory to its logical conclusion. Its determination that all disciplinary decisions are matters that invoke the employer's mandatory duty to bargain would seem to suggest that, absent some qualification of the duty contained in the collective-bargaining agreement, federal law will now be read to require that the employer bargain to impasse before initiating unilateral action on disciplinary matters. It is difficult to believe that Congress intended such a radical restriction of the employer's power to discipline employees. See Fibreboard Corp. v. NLRB, 379 U.S. 203, 217, 218, 223 (1964) (STEWART, J., concurring).

4 Lafayette Radio Electronics, 194 N. L. R. B. 491 (1971); Illinois

Quality Mfg. Co. was the first case in which the Board perceived any greater content in § 7. It did so, not by relying on "significant developments in industrial life," ante, at 265, but by stating simply that in none of the earlier cases had a worker been fired for insisting on union representation. The Board also asserted, for the first time, that its earlier decisions had disposed of only the union's right to bargain with the employer over the discipline to be imposed, and had not dealt with the employee's right under § 7 to insist on union presence at meetings that he reasonably fears would lead to disciplinary action. 195 N. L. R. B. 197, 198. Even this distinction was abandoned some four months later in Mobil Oil Corp., 196 N. L. R. B. 1052 (1972), enforcement denied, 482 [****35] F.2d 842 (CA7 1973). There the Board followed Quality Mfg., even though the employees in Mobil Oil had not been fired for insisting on union representation and their only claim was that the employer had excluded the union from an investigatory [***187] interview. Thus, the Board has turned its back on Dobbs Houses and now finds a § 7 right to insist on union presence in the absence of any evidence that the employer has decided to embark on a course of discipline.

Congress' goal in enacting federal labor legislation was to create a framework within which labor and management [*273] can establish the mutual rights and obligations that govern the employment relationship. "The theory of the Act is that free opportunity for negotiation with accredited representatives of employees is likely to promote industrial peace and may bring about the adjustments and agreements which the Act in itself does not attempt to compel." NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 45 (1937). The National Labor Relations Act only creates the structure for the parties' exercise of their respective economic strengths; it leaves definition of the precise contours of the employment [****36] [**971] relationship to the collective-bargaining process. See Porter Co. v. NLRB, 397 U.S. 99, 108 (1970); NLRB v. American National Insurance Co., 343 U.S. 395, 402 (1952).

As the Court noted in Emporium Capwell Co. v. Western Addition Community Organization, § 7 guarantees employees' basic rights of industrial self-organization, rights which are for the most part "collective rights . . . to act in concert with one's fellow employees, [which] are protected, not for their own sake, but as an instrument of the national labor policy of minimizing industrial strife 'by encouraging the practice and procedure of collective bargaining.'" Ante, at 62. Section 7

Bell Telephone Co., 192 N. L. R. B. 834 (1971); Texaco, Inc., Los Angeles Terminal, 179 N. L. R. B. 976 (1969); Jacobe-Pearson Ford, Inc., 172 N. L. R. B. 594 (1968); Chevron Oil Co., 168 N. L. R. B. 574 (1967).

420 U.S. 251, *270; 95 S. Ct. 959, **969; 43 L. Ed. 2d 171, ***185; 1975 U.S. LEXIS 136, ****32

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protects those rights that are essential to employee self-organization and to the exercise of economic weapons to exact concessions from management and demand a voice in defining the terms of the employment relationship. 5 It does not define those terms itself.

[****37] The power to discipline or discharge employees has been recognized uniformly as one of the elemental prerogatives of management. Absent specific limitations [*274] imposed by statute 6 [****38] or through the process of collective bargaining, 7 management remains free to discharge employees [***188] at will. See Steelworkers v. Warrior & Gulf Co., 363 U.S. 574, 583 (1960). An employer's need to consider and undertake disciplinary action will arise in a wide variety of unpredictable situations. The appropriate disciplinary response also will vary significantly, depending on the nature and severity of the employee's conduct. Likewise, the nature and amount of information required for determining the appropriateness of disciplinary action may vary with the severity of the possible sanction and the complexity of the problem. And in some instances, the employer's legitimate need to maintain discipline and security may require an immediate response.

This variety and complexity necessarily call for flexible and creative adjustment. As the Court recognizes, ante, at 267, the question of union participation in investigatory [*275] interviews is a standard topic of collective bargaining. 8 Many

5 By contrast, the employee's § 7 right announced today may prove to be of limited value to the employee or to the stabilization of labor relations generally. The Court appears to adopt the Board's view that investigatory interviews are not bargaining sessions and that the employer legitimately can insist on hearing only the employee's version of the facts. Absent employer invitation, it would appear that the employee's § 7 right does not encompass the right to insist on the participation of the person he brings with him to the investigatory meeting. The new right thus appears restricted to the privilege to insist on the mute and inactive presence of a fellow employee or a union representative; a witness to the interview, perhaps.

6 Section 8 (a)(1) forbids employers to take disciplinary actions that "interfere with, restrain, or coerce" the employee's exercise of § 7 rights. Other federal statutes also limit in certain respects the employer's basic power to discipline and discharge employees. See, e. g., § 706 of the Civil Rights Act of 1964, 78 Stat. 259, 42 U. S. C. § 2000e-5; Age Discrimination in Employment Act of 1967, 81 Stat. 602, 29 U. S. C. § 623.

7 The Board and the courts have recognized that union demands for provisions limiting the employer's power to discharge can be the subject of mandatory bargaining. See Fibreboard Corp. v. NLRB, 379 U.S., at 217, 221-223 (STEWART, J., concurring).

[**972] agreements incorporate provisions that grant and define such rights, and arbitration decisions increasingly have begun to recognize them as well. Rather than vindicate the Board's interpretation of § 7, however, these developments suggest to me that union representation at investigatory interviews is a matter that Congress left to the bargaining process. Even after affording appropriate deference to the Board's meandering interpretation of the Act, I conclude that the right announced today is not among those that Congress intended to protect in § 7. The type of personalized [****39] interview with which we are here concerned is simply not "concerted activity" within the meaning of the Act.

[****40]

References

48 Am Jur 2d, Labor and Labor Relations 568

16 Am Jur Pl & Pr Forms (Rev ed), Labor and Labor Relations, Form 201

29 USCS 157, 158(a)(1)

US L Ed Digest, Labor 49, 97

ALR Digests, Labor 42, 58

L Ed Index to Annos, Interrogation; Labor and Employment

ALR Quick Index, Labor and Labor Unions

Federal Quick Index, Interrogation; Labor and Labor Relations; Unfair Labor Practices

Annotation References:

8 The history of a similar case, Mobil Oil, 196 N. L. R. B. 1052 (1972), enforcement denied, 482 F.2d 842 (CA7 1973), illustrates how the Board has substituted its judgment for that of the collectivebargaining process. During negotiations leading to the establishment of a collective-bargaining agreement in that case, the union advanced a demand that existing provisions governing suspension and discharge be amended to provide for company-union discussions prior to disciplinary action. The employer refused to accede to that demand and ultimately prevailed, only to find his efforts at the bargaining table voided by the Board's interpretation of the statute.

Chairman Miller subsequently suggested that the union can waive the employee's § 7 right to the presence of a union representative. See Western Electric Co., 198 N. L. R. B. 82 (1972). The Court today provides no indication whether such waivers in the collective-bargaining process are permissible. Cf. NLRB v. Magnavox Co., 415 U.S. 322 (1974).

420 U.S. 251, *273; 95 S. Ct. 959, **971; 43 L. Ed. 2d 171, ***187; 1975 U.S. LEXIS 136, ****36

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Construction and application of National Labor Relations Act. 83 L Ed 691; 112 ALR 959, 115 ALR 314, 123 ALR 612.

Applicability of stare decisis doctrine to decisions of administrative agencies. 79 ALR2d 1126.

Spontaneous or informal activity of employees as that of "labor organization" or as "concerted activities" within protection of Labor Relations Act. 19 ALR2d 566.

Rights of collective action by employees as declared in 7 of National Labor Relations Act (29 USCS 157). 6 ALR2d 416.

End of Document

420 U.S. 251, *275; 95 S. Ct. 959, **972; 43 L. Ed. 2d 171, ***188; 1975 U.S. LEXIS 136, ****40

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Illinois Compiled Statutes

Back to Act Listing Public Acts Search Guide Disclaimer Printer-Friendly Version

Information maintained by the Legislative Reference BureauUpdating the database of the Illinois Compiled Statutes (ILCS) is an ongoing process. Recent lawsmay not yet be included in the ILCS database, but they are found on this site as Public Acts soonafter they become law. For information concerning the relationship between statutes and Public Acrefer to the Guide.

Because the statute database is maintained primarily for legislative drafting purposes, statutorychanges are sometimes included in the statute database before they take effect. If the source noteat the end of a Section of the statutes includes a Public Act that has not yet taken effect, the versioof the law that is currently in effect may have already been removed from the database and youshould refer to that Public Act to see the changes made to the current law.

LOCAL GOVERNMENT(50 ILCS 745/) Firemen's Disciplinary Act.

(50 ILCS 745/1) (from Ch. 85, par. 2501)Sec. 1. This Act shall be known and may be cited as the

"Firemen's Disciplinary Act".(Source: P.A. 83-783.)

(50 ILCS 745/2) (from Ch. 85, par. 2502)Sec. 2. Definitions. For the purposes of this Act, unless

clearly required otherwise, the terms defined in this Sectionhave the meaning ascribed herein:

(a) "Fireman" means a person who is a "firefighter" or"fireman" as defined in Sections 4-106 or 6-106 of the IllinoisPension Code, a paramedic employed by a unit of localgovernment, or an EMT, emergency medical technician-intermediate(EMT-I), or advanced emergency medical technician (A-EMT)employed by a unit of local government, and includes a personwho is an "employee" as defined in Section 15-107 of theIllinois Pension Code and whose primary duties relate tofirefighting.

(b) "Informal inquiry" means a meeting by supervisory orcommand personnel with a fireman upon whom an allegation ofmisconduct has come to the attention of such supervisory orcommand personnel, the purpose of which meeting is to mediate acitizen complaint or discuss the facts to determine whether aformal investigation should be commenced.

(c) "Formal investigation" means the process ofinvestigation ordered by a commanding officer during which thequestioning of a fireman is intended to gather evidence ofmisconduct which may be the basis for filing charges seeking hisor her removal, discharge, or suspension from duty in excess of24 duty hours.

(d) "Interrogation" means the questioning of a firemanpursuant to an investigation initiated by the respective State

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50 ILCS 745/ Firemen's Disciplinary Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=740&ChapterID=11

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or local governmental unit in connection with an allegedviolation of such unit's rules which may be the basis for filingcharges seeking his or her suspension, removal, or discharge.The term does not include questioning as part of an informalinquiry as to allegations of misconduct relating to minorinfractions of agency rules which may be noted on the fireman'srecord but which may not in themselves result in removal,discharge, or suspension from duty in excess of 24 duty hours.

(e) "Administrative proceeding" means any non-judicialhearing which is authorized to recommend, approve or order thesuspension, removal, or discharge of a fireman.(Source: P.A. 98-973, eff. 8-15-14.)

(50 ILCS 745/3) (from Ch. 85, par. 2503)Sec. 3. Whenever a fireman is subjected to an interrogation

within the meaning of this Act, the interrogation shall beconducted pursuant to Sections 3.1 through 3.11 of this Act.(Source: P.A. 83-783.)

(50 ILCS 745/3.1) (from Ch. 85, par. 2504)Sec. 3.1. The interrogation shall take place at the facility

to which the investigating officer is assigned, or at thefacility which has jurisdiction over the place where theincident under investigation allegedly occurred, as designatedby the investigating officer.(Source: P.A. 83-783.)

(50 ILCS 745/3.2) (from Ch. 85, par. 2505)Sec. 3.2. No fireman shall be subjected to questioning in

relation to an allegation of misconduct without first beinginformed in writing of the allegations and whether theallegations, if proven, involve minor infractions or may resultin removal, discharge, or suspension from duty in excess of 24duty hours. If an administrative proceeding is instituted, thefireman shall be informed beforehand of the names of allcomplainants and all information necessary to reasonably apprisethe fireman of the nature of the charges and the preparation ofa defense.(Source: P.A. 94-188, eff. 7-12-05.)

(50 ILCS 745/3.3) (from Ch. 85, par. 2506)Sec. 3.3. All interrogations shall be conducted at a

reasonable time of day. Whenever the nature of the allegedincident and operational requirements permit, interrogationsshall be conducted during the time when the fireman is on duty.(Source: P.A. 83-783.)

(50 ILCS 745/3.4) (from Ch. 85, par. 2507)Sec. 3.4. The fireman under investigation shall be informed

of the name, rank and unit or command of the officer in chargeof the investigation, the interrogators, and all persons presentduring any interrogation except at a public administrativeproceeding.(Source: P.A. 83-783.)

50 ILCS 745/ Firemen's Disciplinary Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=740&ChapterID=11

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(50 ILCS 745/3.5) (from Ch. 85, par. 2508)Sec. 3.5. Interrogation sessions shall be of reasonable

duration and shall permit the fireman interrogated reasonableperiods for rest and personal necessities.(Source: P.A. 83-783.)

(50 ILCS 745/3.6) (from Ch. 85, par. 2509)Sec. 3.6. The fireman being interrogated shall not be

subjected to professional or personal abuse, including offensivelanguage.(Source: P.A. 83-783.)

(50 ILCS 745/3.7) (from Ch. 85, par. 2510)Sec. 3.7. A complete record of any interrogation shall be

made, and a complete transcript or copy shall be made availableto the fireman under investigation without charge and withoutundue delay. Such record may be electronically recorded.(Source: P.A. 83-783.)

(50 ILCS 745/3.8) (from Ch. 85, par. 2511)Sec. 3.8. No fireman shall be interrogated without first

being advised in writing that admissions made in the course ofthe interrogation may be used as evidence of misconduct or asthe basis for charges seeking suspension, removal, or discharge;and without first being advised in writing that he or she hasthe right to counsel of his or her choosing who may be presentto advise him or her at any stage of any interrogation.(Source: P.A. 83-783.)

(50 ILCS 745/3.9) (from Ch. 85, par. 2512)Sec. 3.9. The fireman under investigation shall have the

right to be represented by counsel of his or her choosing andmay request counsel at any time before or during interrogation.When such request for counsel is made, no interrogation shallproceed until reasonable time and opportunity are provided thefireman to obtain counsel.

If a collective bargaining agreement requires the presenceof a representative of the collective bargaining unit duringinvestigations, such representative shall be present during theinterrogation, unless this requirement is waived by the firemanbeing interrogated.(Source: P.A. 83-783.)

(50 ILCS 745/3.10) (from Ch. 85, par. 2513)Sec. 3.10. Admissions or confessions obtained during the

course of any interrogation not conducted in accordance withthis Act may not be utilized in any subsequent disciplinaryproceeding against the fireman.(Source: P.A. 83-783.)

(50 ILCS 745/3.11) (from Ch. 85, par. 2514)Sec. 3.11. In the course of any interrogation no fireman

shall be required to submit to a polygraph test, or any othertest questioning by means of any chemical substance, except with

50 ILCS 745/ Firemen's Disciplinary Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=740&ChapterID=11

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the fireman's express written consent. Refusal to submit to suchtests shall not result in any disciplinary action nor shall suchrefusal be made part of his or her record.(Source: P.A. 83-783.)

(50 ILCS 745/4) (from Ch. 85, par. 2515)Sec. 4. The rights of firemen in disciplinary procedures set

forth under this Act shall not diminish the rights andprivileges of firemen that are guaranteed to all citizens by theConstitution and laws of the United States and of the State ofIllinois.(Source: P.A. 83-783.)

(50 ILCS 745/5) (from Ch. 85, par. 2516)Sec. 5. This Act does not apply to any fireman charged with

violating any provisions of the Criminal Code of 1961, theCriminal Code of 2012, or any other federal, State, or localcriminal law.(Source: P.A. 97-1150, eff. 1-25-13.)

(50 ILCS 745/6) (from Ch. 85, par. 2517)Sec. 6. The provisions of this Act apply only to the extent

there is no collective bargaining agreement currently in effectdealing with the subject matter of this Act.(Source: P.A. 83-783.)

(50 ILCS 745/7) (from Ch. 85, par. 2518)Sec. 7. No fireman shall be discharged, disciplined,

demoted, denied promotion or seniority, transferred, reassignedor otherwise discriminated against in regard to his or heremployment, or be threatened with any such treatment asretaliation for or by reason of his or her exercise of therights granted by this Act.(Source: P.A. 83-783.)

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Illinois Compiled Statutes

Back to Act Listing Public Acts Search Guide Disclaimer Printer-Friendly Version

Information maintained by the Legislative Reference BureauUpdating the database of the Illinois Compiled Statutes (ILCS) is an ongoing process. Recent lawsmay not yet be included in the ILCS database, but they are found on this site as Public Acts soonafter they become law. For information concerning the relationship between statutes and Public Acrefer to the Guide.

Because the statute database is maintained primarily for legislative drafting purposes, statutorychanges are sometimes included in the statute database before they take effect. If the source noteat the end of a Section of the statutes includes a Public Act that has not yet taken effect, the versioof the law that is currently in effect may have already been removed from the database and youshould refer to that Public Act to see the changes made to the current law.

LOCAL GOVERNMENT(50 ILCS 725/) Uniform Peace Officers' Disciplinary Act.

(50 ILCS 725/1) (from Ch. 85, par. 2551)Sec. 1. This Act shall be known and may be cited as the

"Uniform Peace Officers' Disciplinary Act".(Source: P.A. 83-981.)

(50 ILCS 725/2) (from Ch. 85, par. 2552)Sec. 2. For the purposes of this Act, unless clearly

required otherwise, the terms defined in this Section have themeaning ascribed herein:

(a) "Officer" means any peace officer, as defined by Section2-13 of the Criminal Code of 2012, who is employed by any unitof local government or a State college or university, includingsupervisory and command personnel, and any pay-gradeinvestigator for the Secretary of State as defined in Section14-110 of the Illinois Pension Code, including Secretary ofState sergeants, lieutenants, commanders, and investigatortrainees. The term does not include crossing guards, parkingenforcement personnel, traffic wardens or employees of anyState's Attorney's office.

(b) "Informal inquiry" means a meeting by supervisory orcommand personnel with an officer upon whom an allegation ofmisconduct has come to the attention of such supervisory orcommand personnel, the purpose of which meeting is to mediate acitizen complaint or discuss the facts to determine whether aformal investigation should be commenced.

(c) "Formal investigation" means the process ofinvestigation ordered by a commanding officer during which thequestioning of an officer is intended to gather evidence ofmisconduct which may be the basis for filing charges seeking hisor her removal, discharge or suspension in excess of 3 days.

(d) "Interrogation" means the questioning of an officerpursuant to the formal investigation procedures of the

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50 ILCS 725/ Uniform Peace Officers' Disciplinary Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=736&ChapterID=11

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respective State agency or local governmental unit in connectionwith an alleged violation of such agency's or unit's rules whichmay be the basis for filing charges seeking his or hersuspension, removal, or discharge. The term does not includequestioning (1) as part of an informal inquiry or (2) relatingto minor infractions of agency rules which may be noted on theofficer's record but which may not in themselves result inremoval, discharge or suspension in excess of 3 days.

(e) "Administrative proceeding" means any non-judicialhearing which is authorized to recommend, approve or order thesuspension, removal, or discharge of an officer.(Source: P.A. 97-1150, eff. 1-25-13.)

(50 ILCS 725/3) (from Ch. 85, par. 2553)Sec. 3. Whenever an officer is subjected to an interrogation

within the meaning of this Act, the interrogation shall beconducted pursuant to Sections 3.1 through 3.11 of this Act.(Source: P.A. 83-981.)

(50 ILCS 725/3.1) (from Ch. 85, par. 2554)Sec. 3.1. The interrogation shall take place at the facility

to which the investigating officer is assigned, or at theprecinct or police facility which has jurisdiction over theplace where the incident under investigation allegedly occurred,as designated by the investigating officer.(Source: P.A. 83-981.)

(50 ILCS 725/3.2) (from Ch. 85, par. 2555)Sec. 3.2. No officer shall be subjected to interrogation

without first being informed in writing of the nature of theinvestigation. If an administrative proceeding is instituted,the officer shall be informed beforehand of the names of allcomplainants. The information shall be sufficient as toreasonably apprise the officer of the nature of theinvestigation.(Source: P.A. 83-981.)

(50 ILCS 725/3.3) (from Ch. 85, par. 2556)Sec. 3.3. All interrogations shall be conducted at a

reasonable time of day. Whenever the nature of the allegedincident and operational requirements permit, interrogationsshall be conducted during the time when the officer is on duty.(Source: P.A. 83-981.)

(50 ILCS 725/3.4) (from Ch. 85, par. 2557)Sec. 3.4. The officer under investigation shall be informed

in writing of the name, rank and unit or command of the officerin charge of the investigation, the interrogators, and allpersons who will be present on the behalf of the employer duringany interrogation except at a public administrative proceeding.The officer under investigation shall inform the employer of anyperson who will be present on his or her behalf during anyinterrogation except at a public administrative hearing.(Source: P.A. 94-344, eff. 1-1-06.)

50 ILCS 725/ Uniform Peace Officers' Disciplinary Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=736&ChapterID=11

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(50 ILCS 725/3.5) (from Ch. 85, par. 2558)Sec. 3.5. Interrogation sessions shall be of reasonable

duration and shall permit the officer interrogated reasonableperiods for rest and personal necessities.(Source: P.A. 83-981.)

(50 ILCS 725/3.6) (from Ch. 85, par. 2559)Sec. 3.6. The officer being interrogated shall not be

subjected to professional or personal abuse, including offensivelanguage.(Source: P.A. 83-981.)

(50 ILCS 725/3.7) (from Ch. 85, par. 2560)Sec. 3.7. A complete record of any interrogation shall be

made, and a complete transcript or copy shall be made availableto the officer under investigation without charge and withoutundue delay. Such record may be electronically recorded.(Source: P.A. 83-981.)

(50 ILCS 725/3.8) (from Ch. 85, par. 2561)Sec. 3.8. Admissions; counsel; verified complaint.(a) No officer shall be interrogated without first being

advised in writing that admissions made in the course of theinterrogation may be used as evidence of misconduct or as thebasis for charges seeking suspension, removal, or discharge; andwithout first being advised in writing that he or she has theright to counsel of his or her choosing who may be present toadvise him or her at any stage of any interrogation.

(b) Anyone filing a complaint against a sworn peace officermust have the complaint supported by a sworn affidavit. Anycomplaint, having been supported by a sworn affidavit, andhaving been found, in total or in part, to contain knowinglyfalse material information, shall be presented to theappropriate State's Attorney for a determination of prosecution.(Source: P.A. 97-472, eff. 8-22-11.)

(50 ILCS 725/3.9) (from Ch. 85, par. 2562)Sec. 3.9. The officer under investigation shall have the

right to be represented by counsel of his or her choosing andmay request counsel at any time before or during interrogation.When such request for counsel is made, no interrogation shallproceed until reasonable time and opportunity are provided theofficer to obtain counsel.

If a collective bargaining agreement requires the presenceof a representative of the collective bargaining unit duringinvestigations, such representative shall be present during theinterrogation, unless this requirement is waived by the officerbeing interrogated.(Source: P.A. 83-981.)

(50 ILCS 725/3.10) (from Ch. 85, par. 2563)Sec. 3.10. Admissions or confessions obtained during the

course of any interrogation not conducted in accordance withthis Act may not be utilized in any subsequent disciplinaryproceeding against the officer.

50 ILCS 725/ Uniform Peace Officers' Disciplinary Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=736&ChapterID=11

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(Source: P.A. 83-981.)

(50 ILCS 725/3.11) (from Ch. 85, par. 2564)Sec. 3.11. In the course of any interrogation no officer

shall be required to submit to a polygraph test, or any othertest questioning by means of any chemical substance, except withthe officer's express written consent. Refusal to submit to suchtests shall not result in any disciplinary action nor shall suchrefusal be made part of his or her record.(Source: P.A. 83-981.)

(50 ILCS 725/4) (from Ch. 85, par. 2565)Sec. 4. The rights of officers in disciplinary procedures

set forth under this Act shall not diminish the rights andprivileges of officers that are guaranteed to all citizens bythe Constitution and laws of the United States and of the Stateof Illinois.(Source: P.A. 83-981.)

(50 ILCS 725/5) (from Ch. 85, par. 2566)Sec. 5. This Act does not apply to any officer charged with

violating any provisions of the Criminal Code of 1961, theCriminal Code of 2012, or any other federal, State, or localcriminal law.(Source: P.A. 97-1150, eff. 1-25-13.)

(50 ILCS 725/6) (from Ch. 85, par. 2567)Sec. 6. The provisions of this Act apply only to the extent

there is no collective bargaining agreement currently in effectdealing with the subject matter of this Act.(Source: P.A. 83-981.)

(50 ILCS 725/7) (from Ch. 85, par. 2568)Sec. 7. No officer shall be discharged, disciplined,

demoted, denied promotion or seniority, transferred, reassignedor otherwise discriminated against in regard to his or heremployment, or be threatened with any such treatment asretaliation for or by reason of his or her exercise of therights granted by this Act.(Source: P.A. 83-981.)

(50 ILCS 725/7.5)(Section scheduled to be repealed on December 31, 2018)Sec. 7.5. Commission on Police Professionalism.(a) Recognizing the need to review performance standards

governing the professionalism of law enforcement agencies andofficers in the 21st century, the General Assembly herebycreates the Commission on Police Professionalism.

(b) The Commission on Police Professionalism shall becomposed of the following members:

(1) one member of the Senate appointed by thePresident of the Senate;

(2) one member of the Senate appointed by the SenateMinority Leader;

(3) one member of the House of Representatives

50 ILCS 725/ Uniform Peace Officers' Disciplinary Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=736&ChapterID=11

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appointed by the Speaker of the House of Representatives;(4) one member of the House of Representatives

appointed by the House Minority Leader;(5) one active duty law enforcement officer who is a

member of a certified collective bargaining unit appointedby the Governor;

(6) one active duty law enforcement officer who is amember of a certified collective bargaining unit appointedby the President of the Senate;

(7) one active duty law enforcement officer who is amember of a certified collective bargaining unit appointedby the Senate Minority Leader;

(8) one active duty law enforcement officer who is amember of a certified collective bargaining unit appointedby the Speaker of the House of Representatives;

(9) one active duty law enforcement officer who is amember of a certified collective bargaining unit appointedby the House Minority Leader;

(10) the Director of State Police, or his or herdesignee;

(10.5) the Superintendent of the Chicago PoliceDepartment, or his or her designee;

(11) the Executive Director of the Law EnforcementTraining Standards Board, or his or her designee;

(12) the Director of a statewide organizationrepresenting Illinois sheriffs;

(13) the Director of a statewide organizationrepresenting Illinois chiefs of police;

(14) the Director of a statewide fraternalorganization representing sworn law enforcement officers inthis State;

(15) the Director of a benevolent associationrepresenting sworn police officers in this State;

(16) the Director of a fraternal organizationrepresenting sworn law enforcement officers within the Cityof Chicago; and

(17) the Director of a fraternal organizationexclusively representing sworn Illinois State Policeofficers.(c) The President of the Senate and the Speaker of the House

of Representatives shall each appoint a joint chairperson to theCommission. The Law Enforcement Training Standards Board shallprovide administrative support to the Commission.

(d) The Commission shall meet regularly to review thecurrent training and certification process for law enforcementofficers, review the duties of the various types of lawenforcement officers, including auxiliary officers, review thestandards for the issuance of badges, shields, and other policeand agency identification, review officer-involved shootinginvestigation policies, review policies and practices concerningthe use of force and misconduct by law enforcement officers, andexamine whether law enforcement officers should be licensed. Forthe purposes of this subsection (d), "badge" means an officer'sdepartment issued identification number associated with his orher position as a police officer with that Department.

(e) The Commission shall submit a report of its findings andlegislative recommendations to the General Assembly and Governoron or before September 30, 2018.

(f) This Section is repealed on December 31, 2018.(Source: P.A. 100-319, eff. 8-24-17.)

50 ILCS 725/ Uniform Peace Officers' Disciplinary Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=736&ChapterID=11

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(50 ILCS 725/8)Sec. 8. (Repealed).

(Source: P.A. 99-494, eff. 12-17-15. Repealed internally, eff.4-1-16.)

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4/20/2018 Illinois General Assembly - Illinois Compiled Statutes

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=004000050K4-110 1/2

Illinois Compiled Statutes

ILCS Listing Public Acts Search Guide Disclaimer

Information maintained by the Legislative Reference BureauUpdating the database of the Illinois Compiled Statutes (ILCS) is an ongoingprocess. Recent laws may not yet be included in the ILCS database, but they arefound on this site as Public Acts soon after they become law. For informationconcerning the relationship between statutes and Public Acts, refer to the Guide.

Because the statute database is maintained primarily for legislative draftingpurposes, statutory changes are sometimes included in the statute database beforethey take effect. If the source note at the end of a Section of the statutes includes aPublic Act that has not yet taken effect, the version of the law that is currently ineffect may have already been removed from the database and you should refer tothat Public Act to see the changes made to the current law. (40 ILCS 5/4-110) (from Ch. 108 1/2, par. 4-110) Sec. 4-110. Disability pension - Line of duty. If afirefighter, as the result of sickness, accident or injuryincurred in or resulting from the performance of an act of dutyor from the cumulative effects of acts of duty, is found,pursuant to Section 4-112, to be physically or mentallypermanently disabled for service in the fire department, so asto render necessary his or her being placed on disabilitypension, the firefighter shall be entitled to a disabilitypension equal to the greater of (1) 65% of the monthly salaryattached to the rank held by him or her in the fire departmentat the date he or she is removed from the municipality's firedepartment payroll or (2) the retirement pension that thefirefighter would be eligible to receive if he or she retired(but not including any automatic annual increase in thatretirement pension). A firefighter shall be considered "on duty"while on any assignment approved by the chief of the firedepartment, even though away from the municipality he or sheserves as a firefighter, if the assignment is related to thefire protection service of the municipality. Such firefighter shall also be entitled to a child'sdisability benefit of $20 a month on account of each unmarriedchild less than 18 years of age and dependent upon thefirefighter for support, either the issue of the firefighter orlegally adopted by him or her. The total amount of child'sdisability benefit payable to the firefighter, when added to hisor her disability pension, shall not exceed 75% of the amount ofsalary which the firefighter was receiving at the date ofretirement. Benefits payable on account of a child under this Sectionshall not be reduced or terminated by reason of the child'sattainment of age 18 if he or she is then dependent by reason ofa physical or mental disability but shall continue to be paid aslong as such dependency continues. Individuals over the age of18 and adjudged to be disabled persons pursuant to Article XIaof the Probate Act of 1975, except for persons receivingbenefits under Article III of the Illinois Public Aid Code,shall be eligible to receive benefits under this Act. If a firefighter dies while still disabled and receiving adisability pension under this Section, the disability pension

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shall continue to be paid to the firefighter's survivors in thesequence provided in Section 4-114. A pension previously grantedunder Section 4-114 to a survivor of a firefighter who diedwhile receiving a disability pension under this Section shall bedeemed to be a continuation of the pension provided under thisSection and shall be deemed to be in the nature of worker'scompensation payments. The changes to this Section made by thisamendatory Act of 1995 are intended to be retroactive and arenot limited to persons in service on or after its effectivedate. (Source: P.A. 93-1090, eff. 3-11-05.)

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4/20/2018 Illinois General Assembly - Illinois Compiled Statutes

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=004000050K4-110.1 1/2

Illinois Compiled Statutes

ILCS Listing Public Acts Search Guide Disclaimer

Information maintained by the Legislative Reference BureauUpdating the database of the Illinois Compiled Statutes (ILCS) is an ongoingprocess. Recent laws may not yet be included in the ILCS database, but they arefound on this site as Public Acts soon after they become law. For informationconcerning the relationship between statutes and Public Acts, refer to the Guide.

Because the statute database is maintained primarily for legislative draftingpurposes, statutory changes are sometimes included in the statute database beforethey take effect. If the source note at the end of a Section of the statutes includes aPublic Act that has not yet taken effect, the version of the law that is currently ineffect may have already been removed from the database and you should refer tothat Public Act to see the changes made to the current law. (40 ILCS 5/4-110.1) (from Ch. 108 1/2, par. 4-110.1) Sec. 4-110.1. Occupational disease disability pension. TheGeneral Assembly finds that service in the fire departmentrequires firefighters in times of stress and danger to performunusual tasks; that firefighters are subject to exposure toextreme heat or extreme cold in certain seasons while performingtheir duties; that they are required to work in the midst of andare subject to heavy smoke fumes, and carcinogenic, poisonous,toxic or chemical gases from fires; and that these conditionsexist and arise out of or in the course of employment. An active firefighter with 5 or more years of creditableservice who is found, pursuant to Section 4-112, unable toperform his or her duties in the fire department by reason ofheart disease, stroke, tuberculosis, or any disease of the lungsor respiratory tract, resulting from service as a firefighter,is entitled to an occupational disease disability pension duringany period of such disability for which he or she has no rightto receive salary. Any active firefighter who has completed 5 or more years ofservice and is unable to perform his or her duties in the firedepartment by reason of a disabling cancer, which develops ormanifests itself during a period while the firefighter is in theservice of the fire department, shall be entitled to receive anoccupational disease disability benefit during any period ofsuch disability for which he or she does not have a right toreceive salary. In order to receive this occupational diseasedisability benefit, (i) the type of cancer involved must be atype which may be caused by exposure to heat, radiation or aknown carcinogen as defined by the International Agency forResearch on Cancer and (ii) the cancer must (and is rebuttablypresumed to) arise as a result of service as a firefighter. A firefighter who enters the service after August 27, 1971shall be examined by one or more practicing physicians appointedby the board. If the examination discloses impairment of theheart, lungs or respiratory tract, or the existence of anycancer, the firefighter shall not be entitled to theoccupational disease disability pension unless and until asubsequent examination reveals no such impairment or cancer. The occupational disease disability pension shall be equalto the greater of (1) 65% of the salary attached to the rank

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4/20/2018 Illinois General Assembly - Illinois Compiled Statutes

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held by the firefighter in the fire service at the time of hisor her removal from the municipality's fire department payrollor (2) the retirement pension that the firefighter would beeligible to receive if he or she retired (but not including anyautomatic annual increase in that retirement pension). The firefighter is also entitled to a child's disabilitybenefit of $20 a month for each natural or legally adoptedunmarried child less than age 18 dependent upon the firefighterfor support. The total child's disability benefit when added tothe occupational disease disability pension shall not exceed 75%of the firefighter's salary at the time of the grant ofoccupational disease disability pension. The occupational disease disability pension is payable tothe firefighter during the period of the disability. If thedisability ceases before the death of the firefighter, thedisability pension payable under this Section shall also ceaseand the firefighter thereafter shall receive such pensionbenefits as are provided in accordance with other provisions ofthis Article. If a firefighter dies while still disabled and receiving adisability pension under this Section, the disability pensionshall continue to be paid to the firefighter's survivors in thesequence provided in Section 4-114. A pension previously grantedunder Section 4-114 to a survivor of a firefighter who diedwhile receiving a disability pension under this Section shall bedeemed to be a continuation of the pension provided under thisSection and shall be deemed to be in the nature of worker'soccupational disease compensation payments. The changes to thisSection made by this amendatory Act of 1995 are intended to beretroactive and are not limited to persons in service on orafter its effective date. The child's disability benefit shall terminate if thedisability ceases while the firefighter is alive or when thechild or children attain age 18 or marry, whichever event occursfirst, except that benefits payable on account of a child underthis Section shall not be reduced or terminated by reason of thechild's attainment of age 18 if he or she is then dependent byreason of a physical or mental disability but shall continue tobe paid as long as such dependency continues. Individuals overthe age of 18 and adjudged as a disabled person pursuant toArticle XIa of the Probate Act of 1975, except for personsreceiving benefits under Article III of the Illinois Public AidCode, shall be eligible to receive benefits under this Act. (Source: P.A. 93-1090, eff. 3-11-05.)

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4/20/2018 40 ILCS 5/4-111

http://www.ilga.gov/legislation/ilcs/documents/004000050K4-111.htm 1/1

(40 ILCS 5/4-111) (from Ch. 108 1/2, par. 4-111) Sec. 4-111. Disability pension - Not in duty. A firefighterhaving at least 7 years of creditable service who becomesdisabled as a result of any cause other than an act of duty, andwho is found, pursuant to Section 4-112, to be physically ormentally permanently disabled so as to render necessary his orher being placed on disability pension, shall be granted adisability pension of 50% of the monthly salary attached to therank held by the firefighter in the fire service at the date heor she is removed from the municipality's fire departmentpayroll. If a firefighter dies while still disabled andreceiving a disability pension under this Section, thedisability pension shall continue to be paid to thefirefighter's survivors in the sequence provided in Section 4-114 if that disability pension is greater than the survivorspension provided under subsection (a) of Section 4-114. (Source: P.A. 93-1090, eff. 3-11-05.)

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4/20/2018 Illinois General Assembly - Illinois Compiled Statutes

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=004000050K3-114.1 1/2

Illinois Compiled Statutes

ILCS Listing Public Acts Search Guide Disclaimer

Information maintained by the Legislative Reference BureauUpdating the database of the Illinois Compiled Statutes (ILCS) is an ongoingprocess. Recent laws may not yet be included in the ILCS database, but they arefound on this site as Public Acts soon after they become law. For informationconcerning the relationship between statutes and Public Acts, refer to the Guide.

Because the statute database is maintained primarily for legislative draftingpurposes, statutory changes are sometimes included in the statute database beforethey take effect. If the source note at the end of a Section of the statutes includes aPublic Act that has not yet taken effect, the version of the law that is currently ineffect may have already been removed from the database and you should refer tothat Public Act to see the changes made to the current law. (40 ILCS 5/3-114.1) (from Ch. 108 1/2, par. 3-114.1) Sec. 3-114.1. Disability pension - Line of duty. (a) If a police officer as the result of sickness, accidentor injury incurred in or resulting from the performance of anact of duty, is found to be physically or mentally disabled forservice in the police department, so as to render necessary hisor her suspension or retirement from the police service, thepolice officer shall be entitled to a disability retirementpension equal to the greatest of (1) 65% of the salary attachedto the rank on the police force held by the officer at the dateof suspension of duty or retirement, (2) the retirement pensionthat the police officer would be eligible to receive if he orshe retired (but not including any automatic annual increase inthat retirement pension), or (3) the pension provided undersubsection (d), if applicable. A police officer shall be considered "on duty" while on anyassignment approved by the chief of the police department of themunicipality he or she serves, whether the assignment is withinor outside the municipality. (b) If a police officer on disability pension dies whilestill disabled, the disability pension shall continue to be paidto his or her survivors in the sequence provided in Section 3-112. (c) From and after July 1, 1987, any pension payable underthis Section shall be at least $400 per month, without regard tothe fact that the disability or death of the police officeroccurred prior to that date. If the minimum pension establishedin Section 3-113.1 is greater than the minimum provided in thisSection, the Section 3-113.1 minimum controls. (d) A disabled police officer who (1) is receiving a pensionunder this Section on the effective date of this amendatory Actof the 91st General Assembly, (2) files with the Fund, within 30days after that effective date and annually thereafter while thepension remains payable, a written application for the benefitsof this subsection, including an affidavit stating that theapplicant has not earned any income from gainful employmentduring the most recently concluded tax year and a copy of his orher most recent Illinois income tax return, (3) has servicecredit in the Fund for at least 7 years of active duty, and (4)has been receiving the pension under this Section for a period

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4/20/2018 Illinois General Assembly - Illinois Compiled Statutes

http://www.ilga.gov/legislation/ilcs/fulltext.asp?DocName=004000050K3-114.1 2/2

which, when added to the officer's total service credit in theFund, equals at least 20 years, shall be eligible to receive anannual noncompounded increase in his or her pension under thisSection, equal to 3% of the original pension. The Fund may take appropriate steps to verify theapplicant's disability and earnings status, and for this purposemay request from the Department of Revenue a certified copy ofthe applicant's Illinois income tax return for any year forwhich a benefit under this Section is payable or has been paid. The annual increase shall accrue on each anniversary of theinitial pension payment date, for so long as the pension remainspayable to the disabled police officer and the required annualapplication is made, except that the annual increases under thissubsection shall cease if the disabled police officer earnsincome from gainful employment. Within 60 days after acceptingan initial application under this subsection, the Fund shall payto the disabled police officer, in a lump sum without interest,the amounts resulting from the annual increases that haveaccrued retroactively. This subsection is not limited to persons in active serviceon or after its effective date, but it applies only to a pensionthat is payable under this Section to a disabled police officer(rather than a survivor). Upon the death of the disabled policeofficer, the annuity payable under this Section to his or hersurvivors shall include any annual increases previouslyreceived, but no additional increases shall accrue under thissubsection. (Source: P.A. 91-939, eff. 2-1-01.)

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4/20/2018 40 ILCS 5/3-114.2

http://ilga.gov/legislation/ilcs/documents/004000050K3-114.2.htm 1/1

(40 ILCS 5/3-114.2) (from Ch. 108 1/2, par. 3-114.2) Sec. 3-114.2. Disability pension - Not on duty. A policeofficer who becomes disabled as a result of any cause other thanthe performance of an act of duty, and who is found to bephysically or mentally disabled so as to render necessary his orher suspension or retirement from police service in the policedepartment, shall be entitled to a disability pension of 50% ofthe salary attached to the officer's rank on the police force atthe date of suspension of duty or retirement. If a police officer on disability pension dies while stilldisabled, the disability pension shall continue to be paid tothe officer's survivors in the sequence provided in Section 3-112. From and after July 1, 1987, any pension payable under thisSection shall be at least $400 per month, without regard to thefact that the disability or death of the police officer occurredprior to that date. If the minimum pension established inSection 3-113.1 is greater than the minimum provided in thisSection, the Section 3-113.1 minimum controls. (Source: P.A. 91-939, eff. 2-1-01.)

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Illinois Compiled Statutes

Back to Act Listing Public Acts Search Guide Disclaimer Printer-Friendly Version

Information maintained by the Legislative Reference BureauUpdating the database of the Illinois Compiled Statutes (ILCS) is an ongoing process. Recent lawsmay not yet be included in the ILCS database, but they are found on this site as Public Acts soonafter they become law. For information concerning the relationship between statutes and Public Acrefer to the Guide.

Because the statute database is maintained primarily for legislative drafting purposes, statutorychanges are sometimes included in the statute database before they take effect. If the source noteat the end of a Section of the statutes includes a Public Act that has not yet taken effect, the versioof the law that is currently in effect may have already been removed from the database and youshould refer to that Public Act to see the changes made to the current law.

EMPLOYMENT(820 ILCS 320/) Public Safety Employee Benefits Act.

(820 ILCS 320/1)Sec. 1. Short title. This Act may be cited as the Public

Safety Employee Benefits Act.(Source: P.A. 90-535, eff. 11-14-97.)

(820 ILCS 320/3)Sec. 3. Definition. For the purposes of this Act, the term

"firefighter" includes, without limitation, a licensed emergencymedical technician (EMT) who is a sworn member of a public firedepartment.(Source: P.A. 93-569, eff. 8-20-03.)

(820 ILCS 320/5)Sec. 5. Declaration of State interest. The General Assembly

determines and declares that the provisions of this Act fulfillan important State interest.(Source: P.A. 90-535, eff. 11-14-97.)

(820 ILCS 320/10)Sec. 10. Required health coverage benefits.(a) An employer who employs a full-time law enforcement,

correctional or correctional probation officer, or firefighter,who, on or after the effective date of this Act suffers acatastrophic injury or is killed in the line of duty shall paythe entire premium of the employer's health insurance plan forthe injured employee, the injured employee's spouse, and foreach dependent child of the injured employee until the childreaches the age of majority or until the end of the calendaryear in which the child reaches the age of 25 if the childcontinues to be dependent for support or the child is a full-time or part-time student and is dependent for support. The term

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820 ILCS 320/ Public Safety Employee Benefits Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2433&ChapterID=68

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"health insurance plan" does not include supplemental benefitsthat are not part of the basic group health insurance plan. Ifthe injured employee subsequently dies, the employer shallcontinue to pay the entire health insurance premium for thesurviving spouse until remarried and for the dependent childrenunder the conditions established in this Section. However:

(1) Health insurance benefits payable from any othersource shall reduce benefits payable under this Section.

(2) It is unlawful for a person to willfully andknowingly make, or cause to be made, or to assist, conspirewith, or urge another to make, or cause to be made, anyfalse, fraudulent, or misleading oral or written statementto obtain health insurance coverage as provided under thisSection. A violation of this item is a Class A misdemeanor.

(3) Upon conviction for a violation described in item(2), a law enforcement, correctional or correctionalprobation officer, or other beneficiary who receives orseeks to receive health insurance benefits under thisSection shall forfeit the right to receive health insurancebenefits and shall reimburse the employer for all benefitspaid due to the fraud or other prohibited activity. Forpurposes of this item, "conviction" means a determination ofguilt that is the result of a plea or trial, regardless ofwhether adjudication is withheld.(b) In order for the law enforcement, correctional or

correctional probation officer, firefighter, spouse, ordependent children to be eligible for insurance coverage underthis Act, the injury or death must have occurred as the resultof the officer's response to fresh pursuit, the officer orfirefighter's response to what is reasonably believed to be anemergency, an unlawful act perpetrated by another, or during theinvestigation of a criminal act. Nothing in this Section shallbe construed to limit health insurance coverage or pensionbenefits for which the officer, firefighter, spouse, ordependent children may otherwise be eligible.(Source: P.A. 90-535, eff. 11-14-97.)

(820 ILCS 320/15)Sec. 15. Required educational benefits. If a firefighter,

law enforcement, or correctional or correctional probationofficer is accidentally or unlawfully and intentionally killedas specified in subsection (b) of Section 10 on or after July 1,1980, the State shall waive certain educational expenses whichchildren of the deceased incur while obtaining a vocational-technical certificate or an undergraduate education at a Statesupported institution. The amount waived by the State shall bean amount equal to the cost of tuition and matriculation andregistration fees for a total of 120 credit hours. The child mayattend a State vocational-technical school, a public communitycollege, or a State university. The child may attend any or allof the institutions specified in this Section, on either a full-time or part-time basis. The benefits provided under thisSection shall continue to the child until the child's 25thbirthday.

(1) Upon failure of any child benefited by theprovisions of this Section to comply with the ordinary andminimum requirements of the institution attended, both as todiscipline and scholarship, the benefits shall be withdrawnas to the child and no further moneys may be expended forthe child's benefits so long as the failure or delinquencycontinues.

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(2) Only a student in good standing in his or herrespective institution may receive the benefits under thisSection.

(3) A child receiving benefits under this Sectionmust be enrolled according to the customary rules andrequirements of the institution attended.

(Source: P.A. 92-651, eff. 7-11-02.)

(820 ILCS 320/17)Sec. 17. Reporting forms.(a) A person who qualified for benefits under subsections

(a) and (b) of Section 10 of this Act (hereinafter referred toas "PSEBA recipient") shall be required to file a form with hisor her employer as prescribed in this Section. The Commission onGovernment Forecasting and Accountability (COGFA) shall use theform created in this Act and prescribe the content of the reportin cooperation with one statewide labor organizationrepresenting police, one statewide law enforcement organization,one statewide labor organization representing firefightersemployed by at least 100 municipalities in this State that isaffiliated with the Illinois State Federation of Labor, onestatewide labor organization representing correctional officersand parole agents that is affiliated with the Illinois StateFederation of Labor, one statewide organization representingmunicipalities, and one regional organization representingmunicipalities. COGFA may accept comment from any source, butshall not be required to solicit public comment. Within 60 daysafter the effective date of this amendatory Act of the 98thGeneral Assembly, COGFA shall remit a copy of the form containedin this subsection to all employers subject to this Act andshall make a copy available on its website.

"PSEBA RECIPIENT REPORTING FORM:Under Section 17 of the Public Safety Employee

Benefits Act (820 ILCS 320/17), the Commission on GovernmentForecasting and Accountability (COGFA) is charged withcreating and submitting a report to the Governor and theGeneral Assembly setting forth information regardingrecipients and benefits payable under the Public SafetyEmployee Benefits Act (Act). The Act requires employersproviding PSEBA benefits to distribute this form to anyformer peace officer, firefighter, or correctional officercurrently in receipt of PSEBA benefits.

The responses to the questions below will be used byCOGFA to compile information regarding the PSEBA benefit forits report. The Act prohibits the release of any personalinformation concerning the PSEBA recipient and exempts thereported information from the requirements of the Freedom ofInformation Act (FOIA).

The Act requires the PSEBA recipient to complete thisform and submit it to the employer providing PSEBA benefitswithin 60 days of receipt. If the PSEBA recipient fails tosubmit this form within 60 days of receipt, the employer isrequired to notify the PSEBA recipient of non-compliance andprovide an additional 30 days to submit the required form.Failure to submit the form in a timely manner will result inthe PSEBA recipient incurring responsibility for reimbursingthe employer for premiums paid during the period the form isdue and not filed.

820 ILCS 320/ Public Safety Employee Benefits Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2433&ChapterID=68

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(1) PSEBA recipient's name:(2) PSEBA recipient's date of birth:(3) Name of the employer providing PSEBA

benefits:(4) Date the PSEBA benefit first became payable:(5) What was the medical diagnosis of the injury

that qualified you for the PSEBA benefit?(6) Are you currently employed with compensation?(7) If so, what is the name(s) of your current

employer(s)?(8) Are you or your spouse enrolled in a health

insurance plan provided by your current employer oranother source?

(9) Have you or your spouse been offered orprovided access to health insurance from your currentemployer(s)?If you answered yes to question 8 or 9, please

provide the name of the employer, the name of the insuranceprovider(s), and a general description of the type(s) ofinsurance offered (HMO, PPO, HSA, etc.):

(10) Are you or your spouse enrolled in a healthinsurance plan provided by a current employer of yourspouse?

(11) Have you or your spouse been offered orprovided access to health insurance provided by acurrent employer of your spouse?If you answered yes to question 10 or 11, please

provide the name of the employer, the name of the insuranceprovider, and a general description of the type of insuranceoffered (HMO, PPO, HSA, etc.) by an employer of yourspouse:"

COGFA shall notify an employer of its obligation to notifyany PSEBA recipient receiving benefits under this Act of thatrecipient's obligation to file a report under this Section. APSEBA recipient receiving benefits under this Act must completeand return this form to the employer within 60 days of receiptof such form. Any PSEBA recipient who has been given notice asprovided under this Section and who fails to timely file areport under this Section within 60 days after receipt of thisform shall be notified by the employer that he or she has 30days to submit the report or risk incurring the cost of his orher benefits provided under this Act. An employer may seekreimbursement for premium payments for a PSEBA recipient whofails to file this report with the employer 30 days afterreceiving this notice. The PSEBA recipient is responsible forreimbursing the employer for premiums paid during the period thereport is due and not filed. Employers shall return this form toCOGFA within 30 days after receiving the form from the PSEBArecipient.

Any information collected by the employer under this Sectionshall be exempt from the requirements of the Freedom ofInformation Act except for data collected in the aggregate thatdoes not reveal any personal information concerning the PSEBArecipient.

By July 1 of every even-numbered year, beginning in 2016,employers subject to this Act must send the form contained inthis subsection to all PSEBA recipients eligible for benefitsunder this Act. The PSEBA recipient must complete and returnthis form by September 1 of that year. Any PSEBA recipient who

820 ILCS 320/ Public Safety Employee Benefits Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2433&ChapterID=68

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has been given notice as provided under this Section and whofails to timely file a completed form under this Section within60 days after receipt of this form shall be notified by theemployer that he or she has 30 days to submit the form or riskincurring the costs of his or her benefits provided under thisAct. The PSEBA recipient is responsible for reimbursing theemployer for premiums paid during the period the report is dueand not filed. The employer shall resume premium payments uponreceipt of the completed form. Employers shall return this formto COGFA within 30 days after receiving the form from the PSEBArecipient.

(b) An employer subject to this Act shall complete and filethe form contained in this subsection.

"EMPLOYER SUBJECT TO PSEBA REPORTING FORM:Under Section 17 of the Public Safety Employee

Benefits Act (820 ILCS 320/17), the Commission on GovernmentForecasting and Accountability (COGFA) is charged withcreating and submitting a report to the Governor and GeneralAssembly setting forth information regarding recipients andbenefits payable under the Public Safety Employee BenefitsAct (Act).

The responses to the questions below will be used byCOGFA to compile information regarding the PSEBA benefit forits report.

The Act requires all employers subject to the PSEBAAct to submit the following information within 120 daysafter receipt of this form.

(1) Name of the employer:(2) The number of PSEBA benefit applications

filed under the Act during the reporting period providedin the aggregate and listed individually by name ofapplicant and date of application:

(3) The number of PSEBA benefits and names ofPSEBA recipients receiving benefits awarded under theAct during the reporting period provided in theaggregate and listed individually by name of applicantand date of application:

(4) The cost of the health insurance premiumspaid due to PSEBA benefits awarded under the Act duringthe reporting period provided in the aggregate andlisted individually by name of PSEBA recipient:

(5) The number of PSEBA benefit applicationsfiled under the Act since the inception of the Actprovided in the aggregate and listed individually byname of applicant and date of application:

(6) The number of PSEBA benefits awarded underthe Act since the inception of the Act provided in theaggregate and listed individually by name of applicantand date of application:

(7) The cost of health insurance premiums paiddue to PSEBA benefits awarded under the Act since theinception of the Act provided in the aggregate andlisted individually by name of PSEBA recipient:

(8) The current annual cost of health insurancepremiums paid for PSEBA benefits awarded under the Actprovided in the aggregate and listed individually byname of PSEBA recipient:

(9) The annual cost of health insurance premiums

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paid for PSEBA benefits awarded under the Act listed byyear since the inception of the Act provided in annualaggregate amounts and listed individually by name ofPSEBA recipient:

(10) A description of health insurance benefitlevels currently provided by the employer to the PSEBArecipient:

(11) The total cost of the monthly healthinsurance premium currently provided to the PSEBArecipient:

(12) The other costs of the health insurancebenefit currently provided to the PSEBA recipientincluding, but not limited to:

(i) the co-pay requirements of the healthinsurance policy provided to the PSEBA recipient;

(ii) the out-of-pocket deductibles of thehealth insurance policy provided to the PSEBArecipient;

(iii) any pharmaceutical benefits and co-paysprovided in the insurance policy; and

(iv) any policy limits of the healthinsurance policy provided to the PSEBA recipient."

An employer covered under this Act shall file copies of thePSEBA Recipient Reporting Form and the Employer Subject to thePSEBA Act Reporting Form with COGFA within 120 days afterreceipt of the Employer Subject to the PSEBA Act Reporting Form.

The first form filed with COGFA under this Section shallcontain all information required by this Section. All formsfiled by the employer thereafter shall set forth the requiredinformation for the 24-month period ending on June 30 precedingthe deadline date for filing the report.

Whenever possible, communication between COGFA and employersas required by this Act shall be through electronic means.

(c) For the purpose of creating the report required undersubsection (d), upon receipt of each PSEBA Benefit RecipientForm, or as soon as reasonably practicable, COGFA shall make adetermination of whether the PSEBA benefit recipient or thePSEBA benefit recipient's spouse meets one of the followingcriteria:

(1) the PSEBA benefit recipient or the PSEBA benefitrecipient's spouse is receiving health insurance from acurrent employer, a current employer of his or her spouse,or another source;

(2) the PSEBA benefit recipient or the PSEBA benefitrecipient's spouse has been offered or provided access tohealth insurance from a current employer or employers.If one or both of the criteria are met, COGFA shall make the

following determinations of the associated costs and benefitlevels of health insurance provided or offered to the PSEBAbenefit recipient or the PSEBA benefit recipient's spouse:

(A) a description of health insurance benefit levelsoffered to or received by the PSEBA benefit recipient or thePSEBA benefit recipient's spouse from a current employer ora current employer of the PSEBA benefit recipient's spouse;

(B) the monthly premium cost of health insurancebenefits offered to or received by the PSEBA benefitrecipient or the PSEBA benefit recipient's spouse from acurrent employer or a current employer of the PSEBA benefitrecipient's spouse including, but not limited to:

820 ILCS 320/ Public Safety Employee Benefits Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2433&ChapterID=68

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(i) the total monthly cost of the healthinsurance premium;

(ii) the monthly amount of the health insurancepremium to be paid by the employer;

(iii) the monthly amount of the health insurancepremium to be paid by the PSEBA benefit recipient or thePSEBA benefit recipient's spouse;

(iv) the co-pay requirements of the healthinsurance policy;

(v) the out-of-pocket deductibles of the healthinsurance policy;

(vi) any pharmaceutical benefits and co-paysprovided in the insurance policy;

(vii) any policy limits of the health insurancepolicy.

COGFA shall summarize the related costs and benefit levelsof health insurance provided or available to the PSEBA benefitrecipient or the PSEBA benefit recipient's spouse and contrastthe results to the cost and benefit levels of health insurancecurrently provided by the employer subject to this Act. Thisinformation shall be included in the report required insubsection (d).

(d) By June 1, 2014, and by January 1 of every odd-numberedyear thereafter beginning in 2017, COGFA shall submit a reportto the Governor and the General Assembly setting forth theinformation received under subsections (a) and (b). The reportshall aggregate data in such a way as to not reveal the identityof any single beneficiary. The requirement for reporting to theGeneral Assembly shall be satisfied by filing copies of thereport with the Speaker, Minority Leader, and Clerk of the Houseof Representatives, the President, Minority Leader, andSecretary of the Senate, the Legislative Research Unit asrequired under Section 3.1 of the General Assembly OrganizationAct, and the State Government Report Distribution Center for theGeneral Assembly as required under paragraph (t) of Section 7 ofthe State Library Act. COGFA shall make this report availableelectronically on a publicly accessible website.(Source: P.A. 98-561, eff. 8-27-13; 99-239, eff. 8-3-15.)

(820 ILCS 320/20)Sec. 20. Home rule. An employer, including a home rule unit,

that employs a full-time law enforcement, correctional orcorrectional probation officer, or firefighter may not providebenefits to persons covered under this Act in a mannerinconsistent with the requirements of this Act. This Act is alimitation under subsection (i) of Section 6 of Article VII ofthe Illinois Constitution on the concurrent exercise of powersand functions exercised by the State.(Source: P.A. 90-535, eff. 11-14-97.)

(820 ILCS 320/95)Sec. 95. (Amendatory provisions; text omitted).

(Source: P.A. 90-535, eff. 11-14-97; text omitted.)

(820 ILCS 320/99)Sec. 99. Effective date. This Act takes effect upon becoming

law.(Source: P.A. 90-535, eff. 11-14-97.)

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This site is maintained for the Illinois General Assembly by theLegislative Information System, 705 Stratton Building, Springfield, Illinois 62706217-782-3944 217-782-2050 (TTY)

820 ILCS 320/ Public Safety Employee Benefits Act. http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2433&ChapterID=68

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4/20/2018 5 ILCS 345/ Public Employee Disability Act.

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=115&ChapterID=2 1/3

Illinois Compiled Statutes

Back to Act Listing Public Acts Search Guide Disclaimer Printer-Friendly Version

Information maintained by the Legislative Reference BureauUpdating the database of the Illinois Compiled Statutes (ILCS) is an ongoing process. Recent lawsmay not yet be included in the ILCS database, but they are found on this site as Public Acts soonafter they become law. For information concerning the relationship between statutes and Public Acts,refer to the Guide.

Because the statute database is maintained primarily for legislative drafting purposes, statutorychanges are sometimes included in the statute database before they take effect. If the source noteat the end of a Section of the statutes includes a Public Act that has not yet taken effect, the versionof the law that is currently in effect may have already been removed from the database and youshould refer to that Public Act to see the changes made to the current law. GENERAL PROVISIONS

(5 ILCS 345/) Public Employee Disability Act.

(5 ILCS 345/0.01) (from Ch. 70, par. 90.9) Sec. 0.01. Short title. This Act may be cited as the PublicEmployee Disability Act. (Source: P.A. 86-1324.)

(5 ILCS 345/1) (from Ch. 70, par. 91) Sec. 1. Disability benefit. (a) For the purposes of this Section, "eligible employee"means any part-time or full-time State correctional officer orany other full or part-time employee of the Department ofCorrections, any full or part-time employee of the PrisonerReview Board, any full or part-time employee of the Departmentof Human Services working within a penal institution or a Statemental health or developmental disabilities facility operated bythe Department of Human Services, and any full-time lawenforcement officer or full-time firefighter who is employed bythe State of Illinois, any unit of local government (includingany home rule unit), any State supported college or university,or any other public entity granted the power to employ personsfor such purposes by law.

(b) Whenever an eligible employee suffers any injury in theline of duty which causes him to be unable to perform hisduties, he shall continue to be paid by the employing publicentity on the same basis as he was paid before the injury, withno deduction from his sick leave credits, compensatory time forovertime accumulations or vacation, or service credits in apublic employee pension fund during the time he is unable toperform his duties due to the result of the injury, but notlonger than one year in relation to the same injury. However, noinjury to an employee of the Department of Corrections or thePrisoner Review Board working within a penal institution or anemployee of the Department of Human Services working within adepartmental mental health or developmental disabilitiesfacility shall qualify the employee for benefits under thisSection unless the injury is the direct or indirect result ofviolence by inmates of the penal institution or residents of themental health or developmental disabilities facility.

(c) At any time during the period for which continuing

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4/20/2018 5 ILCS 345/ Public Employee Disability Act.

http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=115&ChapterID=2 2/3

compensation is required by this Act, the employing publicentity may order at the expense of that entity physical ormedical examinations of the injured person to determine thedegree of disability.

(d) During this period of disability, the injured personshall not be employed in any other manner, with or withoutmonetary compensation. Any person who is employed in violationof this paragraph forfeits the continuing compensation providedby this Act from the time such employment begins. Any salarycompensation due the injured person from workers' compensationor any salary due him from any type of insurance which may becarried by the employing public entity shall revert to thatentity during the time for which continuing compensation is paidto him under this Act. Any person with a disability receivingcompensation under the provisions of this Act shall not beentitled to any benefits for which he would qualify because ofhis disability under the provisions of the Illinois PensionCode.

(e) Any employee of the State of Illinois, as defined inSection 14-103.05 of the Illinois Pension Code, who becomespermanently unable to perform the duties of such employment dueto an injury received in the active performance of his duties asa State employee as a result of a willful act of violence byanother employee of the State of Illinois, as so defined,committed during such other employee's course of employment andafter January 1, 1988, shall be eligible for benefits pursuantto the provisions of this Section. For purposes of this Section,permanent disability is defined as a diagnosis or prognosis ofan inability to return to current job duties by a physicianlicensed to practice medicine in all of its branches.

(f) The compensation and other benefits provided to part-time employees covered by this Section shall be calculated basedon the percentage of time the part-time employee was scheduledto work pursuant to his or her status as a part-time employee.

(g) Pursuant to paragraphs (h) and (i) of Section 6 ofArticle VII of the Illinois Constitution, this Act specificallydenies and limits the exercise by home rule units of any powerwhich is inconsistent herewith, and all existing laws andordinances which are inconsistent herewith are herebysuperseded. This Act does not preempt the concurrent exercise byhome rule units of powers consistent herewith.

This Act does not apply to any home rule unit with apopulation of over 1,000,000.

(h) In those cases where the injury to a State employee forwhich a benefit is payable under this Act was caused undercircumstances creating a legal liability for damages on the partof some person other than the State employer, all of the rightsand privileges, including the right to notice of suit broughtagainst such other person and the right to commence or join insuch suit, as given the employer, together with the conditionsor obligations imposed under paragraph (b) of Section 5 of theWorkers' Compensation Act, are also given and granted to theState, to the end that, with respect to State employees only,the State may be paid or reimbursed for the amount of benefitpaid or to be paid by the State to the injured employee or hisor her personal representative out of any judgment, settlement,or payment for such injury obtained by such injured employee orhis or her personal representative from such other person byvirtue of the injury.

(Source: P.A. 99-143, eff. 7-27-15.)

Top2018 Employment Law Seminar

April 25, 2018 CH. 5. Page 65

4/20/2018 5 ILCS 345/ Public Employee Disability Act.

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Handling PSEBA Claims Administratively Keith L. Hunt Hunt & Associates P.C. Three First National Plaza Suite 2100 Chicago, IL 60602 312-558-1300 khunt@huntassoclaw.com

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The Public Safety Employee Benefit Act (PSEBA) 820 ILCS §320/1 (2015)

provides no process for evaluating benefit claims. The statute does not proscribe a

process nor identify a venue for handling those issues. When confronted with a PSEBA

claim what should a municipality do? There are three approaches to handling PSEBA

claims. One approach is to simply pay the claim – not a very effective way to challenge

questionable claims. A second approach is through the courts. A municipality may

choose to file a declaratory judgment action under 735 I LCS §5/2 – 701 (2015). This

approach can be very costly and effectively shifts the burden of proof to the municipality

to establish that an injured officer or firefighter is not entitled to benefits. A third and far

more effective approach is to create an administrative process by ordinance which sets

out the respective rights and responsibilities of a PSEBA applicant and the municipality.

This approach allows the burden of proof to remain with the applicant – – to establish

the entitlement to benefits. This approach is also far less costly.

AUTHORITY TO CONDUCT ADMINISTRATIVE HEARINGS

The Public Safety Employee Benefits Act (PSEBA) provides that a police officer

or firefighter who suffers a catastrophic injury (or death) is entitled to have their

employer pay 100% of the health insurance premiums for themselves, their spouse and

any dependent children if they can establish that (1) the injury was catastrophic; and (2)

it occurred while responding to “fresh pursuit, the officer or firefighter's response to

what is reasonably believed to be an emergency, an unlawful act perpetrated by

another, or during the investigation of a criminal act.” 820 ILCS §320/10.

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How is that determination made? What are the standards? Who conducts the

hearing? The PSEBA statute is silent on these issues. Do all municipalities have the

authority to conduct hearings to determine PSEBA benefits? May a municipality enact

an ordinance creating its own internal administrative process? The clear answer is it

depends.

Fire Districts – Gaffney v. Orland Fire Protection District

In Gaffney v. Orland Fire Protection District, the Illinois Supreme Court held that

a local fire protection district lacked the authority to adjudicate PSEBA eligibility.

Gaffney, 2012 IL 110012 (February 17, 2012). The Court reasoned administrative

bodies possess only those powers expressly granted by the Legislature – an application

of Dillon’s rule. The Supreme Court concluded the Fire Protection District Act did not

authorize the District to adjudicate administrative claims and therefore the District

lacked the authority deny the claim for benefits or to require that an applicant seek

administrative review. The Court reversed the Circuit Court’s decision upholding the

District’s denial of benefits.

Home Rule Units – Pedersen v. Village of Hoffman Estates

Home rule municipalities clearly have the authority to conduct administrative

hearings to determine eligibility for PSEBA benefits under Pedersen v. Village of

Hoffman Estates, 2014 IL App (1st) 123402 (March 31, 2014). In Pedersen, a firefighter

was injured in the line of duty and sought PSEBA benefits. The Village adopted an

ordinance creating an administrative process for determining the eligibility for PSEBA

benefits, designating the Village Manager as the Chief Administrative Hearing Officer.

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The Applicant objected to the process arguing that the Village process was not

authorized by the PSEBA statute itself, nor by the Illinois Constitution. After an

administrative hearing, the Village Manager rendered a written decision denying the

application for PSEBA benefits.

The Applicant then filed a Declaratory Judgment action seeking a declaration that

the Village was obligated to pay PSEBA benefits and seeking a declaration that the

ordinance creating the administrative process violated both the PSEBA statute itself and

the Illinois and US Constitutions. The Illinois Appellate Court upheld the ordinance

creating the administrative process stating:

Plaintiffs argue the circuit court's ruling is contrary to the decision in Gaffney. In that case, our supreme court ruled the circuit court erred in dismissing a firefighter's complaint for a declaratory judgment of his entitlement to benefits under section 10 of the Act and treating his alternative claim for administrative review as seeking a common law writ of certiorari. Gaffney, 2012 IL 110012, ¶ 30. The supreme court observed the defendant—the board of trustees of a fire protection district—was an administrative agency with no general or common law powers, and was limited to those powers specifically authorized by statute. Gaffney, 2012 IL 110012, ¶ 38. HN6 The court's review of the Fire Protection District Act (70 ILCS 705/0.01 et seq. (West 2010)) revealed no provision indicating that the legislature intended the board's denial of section 10 benefits to be an administrative decision subject to administrative review. Gaffney, 2012 IL 110012, ¶ 43. The court also observed the Act itself does not provide any guidance on the proper procedure for seeking section 10 benefits. Gaffney, 2012 IL 110012, ¶ 44. Accordingly, the court concluded the legislature did not express an intent to provide the fire protection district with the authority to make administrative decisions on its employees' eligibility for section 10 benefits under the Act. Gaffney, 2012 IL 110012, ¶ 45. Consequently, the court also concluded the board's decision was "not an administrative agency action, but [was] only an employer's objection to paying section 10 benefits." Gaffney, 2012 IL 110012, ¶ 45. Thus, our supreme court ultimately concluded the circuit court erred in dismissing the declaratory judgment count of Gaffney's complaint seeking relief under the Act. Gaffney, 2012 IL 110012, ¶ 45.

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Pedersen at ¶¶ 29-30. The Court concluded that Article VII, § 6(a) of the Illinois

Constitution granted home rule powers to municipalities, finding the Village clearly had

the home rule authority to enact an administrative process for adjudicating PSEBA

eligibility.

Non-Home Rule Units

There is an open question as to whether non-home rule municipalities have the

authority to adjudicate PSEBA claims. Gaffney and Pederson provide some insight

but neither case resolves the issue. In Gaffney, the Court concluded that a fire

protection district was an administrative agency and as such it lacked any authority

other than those powers expressly granted by the Legislature. Pedersen, on the other

hand, was decided based on the constitutional grant of home rule authority. But what

about non-home rule municipalities? No reported decision has analyzed grant of power

to municipalities under the Illinois Municipal Code.

The following are some of the powers expressly granted to municipalities under the

Illinois Municipal Code:

• The corporate authorities of each municipality may pass all ordinances and make all rules and regulations proper or necessary, to carry into effect the powers granted to municipalities, with such fines or penalties as may be deemed proper 65 ILCS 5/1-2-1

• The corporate authorities may control the finances of the corporation. 65 ILCS 5/8-1-1

• The corporate authorities of any municipality may provide by ordinance in regard to the relation between all municipal officers and employees in respect to each other, the municipality, and the people. 65 ILCS 5/10-4-1 This is the section authorizing municipalities to regulate the terms and conditions of employment and to enact ordinances to achieve those ends.

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• The corporate authorities of any municipality may arrange to provide, for the benefit of employees of the municipality, group life, health, accident, hospital, and medical insurance, or any one or any combination of those types of insurance, and may arrange to provide that insurance for the benefit of the spouses or dependents of those employees. …. The corporate authorities may provide for payment by the municipality of a portion of the premium or charge for the insurance with the employee paying the balance of the premium or charge. If the corporate authorities undertake a plan under which the municipality pays a portion of the premium or charge, the corporate authorities shall provide for withholding and deducting from the compensation of those municipal employees who consent to join the plan the balance of the premium or charge for the insurance. 65 ILCS 5/10-4-2

When read together, either alone or in combination with other specifically-enumerated

powers as granted by the Legislature, an argument may be made that non-home rule

municipalities also have the authority to create administrative processes for determining

PSEBA claims.

CREATING AN ADMINISTRATIVE PROCESS

Assuming a municipality elects to create its own internal administrative process,

as opposed to relying on the Courts through a declaratory judgment proceeding, a

municipality should adopt a clearly-defined policy and articulate a specific process for

the consideration and adjudication of PSEBA claims.

1. Adopt By Ordinance.

A municipality should create its own administrative process and procedures

which should be adopted by ordinance. Having a predetermined, published process will

make the outcome of any hearing less susceptible to attack. As a starting point, the

process should be objective. It should ensure due process and an adequate

opportunity for an applicant to submit evidence and to be heard. It should provide a right

of cross-examination in the creation of a written record which can be later reviewed. It

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is recommended that the process be conducted by an outside hearing officer, not an

individual who is regularly employed by the Village—simply in an effort to promote

objectivity and to create distance between the hearing officer and the municipality itself.

It is also helpful if the hearing officer is either a municipal attorney or a retired judge with

experience hearing municipal matters so that the individual is familiar with the rights and

property interests held by public employees.

The process should also provide that the applicant submit copies of any medical

records, pension board proceedings, transcripts, physician reports, photographs or

videos and any other evidence which will tend to prove or disprove the catastrophic

nature of the injury and the circumstances under which it occurred. Municipalities

should be sure to obtain the required HIPAA waivers as well as consent forms to obtain

medical information and other pertinent records for consideration in the process.

Attached to these materials are a sample Ordinance and sample PSEBA

Application and Policy to use as a model in creating an internal PSEBA procedure. The

process should delineate the rights and responsibilities of both the municipality and an

applicant.

2. Conducting The Trial

Note use of the word “trial.” It is not merely a hearing or an informal meeting. If

the record is to be reviewed in a later proceeding, it will be either through an

administrative review action or a common-law writ for certiorari. It is important that

process be treated like any other trial. The rules of evidence should be followed and a

cautious practitioner will insist that appropriate witnesses be called and documents be

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properly introduced into evidence. This not only ensures a better record but also holds

an applicant to the required standard of proof.

The process should include a formalized hearing where the evidence is taken

down by a court reporter. Although the Pedersen decision held that a municipality may

not require that the appeals process be taken pursuant to the administrative review act,

a formalized record is nevertheless required irrespective of the standard or vehicle for

review. Municipalities should insist that the rules of evidence be followed.

An attorney should also carefully consider whether to stipulate to the admissibility

of any medical records, reports or written statements. Such documents by their very

nature are hearsay, unless they can be admitted as a business record. Illinois Supreme

Court Rule 236 provides that medical records may be admitted as business records

provided the records are authenticated in a proper foundation can be laid. Troyan v.

Reyes, 367 Ill. App. 3d 729 (2006). Under Troyan, a person familiar with the business

and its mode of operation may provide testimony establishing the foundational

requirements of a business record. It need not be the author.

THE IMPACT OF THE PENSION PROCEEDING

If the pension board rules before a hearing on the PSEBA application, an issue

may exist regarding whether the pension ruling bars a municipality from relitigating the

issue. The answer depends on whether the municipality was a party to the pension

proceeding and in what appellate court district the matter was heard. There presently is

a conflict among the appellate courts on whether a pension board decision precludes a

municipality from litigating the nature, extent or causation of an injury in the PSEBA

process.

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The First District Appellate Court has held that a pension board ruling does not

bar a municipality from litigating PSEBA issues. Pedersen v. Vill. of Hoffman Estates,

2014 IL App (1st) 123402 (March 31, 2014); Oskroba v. Vill. of Hoffman Estates, 404 Ill.

App. 3d 692, 694, 343 Ill. Dec. 588, 590, 935 N.E.2d 596, 598 (2010). In Oskroba, the

First District rejected the argument that a village was barred from litigating the issue

under collateral estoppel. Oskroba, 404 Ill. App. at 696. The court reasoned that the

issues in pension disability proceedings differ from those in PSEBA proceedings. Id.

The Second District reached the opposite conclusion in Vill. Of Vernon Hills v.

Heelan. In that case, the Appellate Court affirmed a circuit court ruling which barred a

village from taking any discovery or introducing any evidence on the nature, extent or

causation of the officer’s injury. Vill. of Vernon Hills v. Heelan, 2014 IL App (2d) 130823

(July 23, 2014), leave to appeal granted 2014 Ill. LEXIS 1426, 386 Ill. Dec. 800, 21

N.E.3d 719 (oral argument May 20, 2015). Relying on its earlier interpretation of Krohe

in Richter v. Vill. of Oak Brook, the Second District determined that a pension board’s

granting of a line of duty disability police pension satisfies the requirement of “a

catastrophic injury” under section 10(a) of PSEBA as a matter of law, even though the

Village was not a party to the pension proceeding.

The Vernon Hills case is on appeal to the Illinois Supreme Court. The briefing is

completed and oral argument was held on May 20, 2015. Until the Supreme Court

resolve this issue, municipalities in the Second District should carefully evaluate the risk

of not intervening in the pension board process. Under the Vernon Hills case, a

municipality will be bound by the pension board determination even though the issues

differ. This is based on the Second District’s interpretation of the language in Krohe

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where the Supreme Court stated that the definition of “a catastrophic injury” is

synonymous with an injury resulting in a line of duty disability pension. See Village of

Vernon Hills v. Heelan, 2014 IL App (2d) 130823 at ¶ 33. Municipalities in other judicial

districts do not face this risk and should likely follow a different path. Until the Supreme

Court decides the Vernon Hills case, uncertainty will continue to exist regarding the

application of collateral estoppel in the nature of the process will depend on the

geographic location where the officer is employed and whether the employer adopts its

own administrative process.

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ORDINANCE NO.

AN ORDINANCE AMENDING CHAPTERS __ OF THE

[INSERT MUNICIPALITY] MUNICIPAL CODE (PUBLIC SAFETY EMPLOYEE BENEFITS ACT)

WHEREAS, the Village of X is a home rule municipality in accordance with the

Constitution of the State of Illinois of 1970; and

WHEREAS, the Village pursuant to its home rule powers has authority to adopt ordinances

and to promulgate rules and regulations that pertain to its government and affairs that protect the

public health, safety and welfare of its citizens; and

WHEREAS, the Village, under its home rule authority, and pursuant to Pedersen vs.

Hoffman Estates ( 2014 Il Ap (1st) 123402), has the authority to establish an administrative

procedure for determining claims for benefits under the Public Safety Employee Benefits Act (820

ILCS 320/1 et seq.), subject to judicial review by seeking a common law writ of certiorari; and

WHEREAS, the President and Board of Trustees of the [INSERT MUNICIPALITY] have

adopted the “Public Safety Employee Benefit Act Procedure” by Resolution; and

WHEREAS, as a result of the Illinois Appellate Court decision in Pedersen vs. Hoffman

Estates, the Village now desires to amend its Procedure by deleting the “PSEBA Hearing Process”

and “PSEBA Application Procedure” sections of the Procedure and to adopt the following

procedure and finds that this is in the best interest of the municipality and its citizens.

NOW, THEREFORE, BE IT ORDAINED by the President and Board of Trustees of the

[INSERT MUNICIPALITY], Lake County, Illinois, as follows:

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Section 1: That Article ___, ADMINISTRATIVE PROCEDURE TO DETERMINE

ELIGIBILITY UNDER THE PUBLIC SAFETY EMPLOYEE BENEFITS ACT, be and is

created to read as follows:

ARTICLE __

ADMINISTRATIVE PROCEDURE TO DETERMINE ELIGIBILITY UNDER THE

PUBLIC SAFETY EMPLOYEE BENEFITS ACT

Section ____1. PURPOSE

The purpose of this chapter is to provide a fair and efficient method of determining the eligibility of an employee for the benefits enumerated under the Public Safety Employee Benefits Act (“PSEBA”) through an administrative process, including if necessary, an administrative hearing. All benefits provided employees pursuant to PSEBA will be consistent with PSEBA.

Section ____2. APPLICATION PROCEDURE.

A. Public safety employees or family members of an injured or deceased Public Safety Officer in the event the employee is not capable of taking this action (“Applicant”) must file with the Village Manager a full and complete PSEBA application as described in more detail in this Section 2, in writing, within thirty (30) days of filing a pension claim, or within thirty (30) days of the date of the adoption of this Ordinance in the event that an Applicant has filed for a pension claim prior to date of adoption of this Ordinance, whichever is later, if the Applicant is seeking benefits under PSEBA. Failure to timely file the full and complete application with the Village Manager shall result in a forfeiture of the benefits under PSEBA. Upon request, the Village shall furnish a Public Safety Employee Benefit Act Application to the Applicant. PSEBA applications are also available from the Village Manager, Finance Director or on line through the Village’s intranet (HR website).

B. Any Applicant seeking benefits under the Act shall complete the application provided by the Village, and include the public safety employee’s or family member’s firsthand knowledge explaining how the disability injury/death directly resulted from:

i) A police officer’s response to fresh pursuit; ii) A police officer’s response to what is reasonably believed to be an

emergency;

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iii) A police officer’s response to an unlawful act perpetrated by another; or

iv) A police officer’s participation during the investigation of a criminal act.

C. The Public Safety Employee Benefit Act Application must be sworn and notarized to certify the truthfulness of the content of the information contained in the completed application, along with a signed PSEBA medical authorization release, and a signed PSEBA general information release. Both the PSEBA medical and PSEBA general information releases authorize the collection of information related to the incident including, but not limited to, the disability pension proceedings, worker’s compensation records and medical records. A review of the Application will not occur until the Application is complete including the medical releases. D. The complete application must include the name of employee, date of hire, detailed information regarding the incident, (including date, time, place, nature of injury, any other factual circumstances surrounding said incident giving rise to said claim), witnesses to the incident, witnesses the Applicant intends to call at the PSEBA hearing, information and supporting pension documentation filed with the Police Pension Board and any Police Pension Board determination or ruling, information supporting the PSEBA eligibility requirements, a signed PSEBA medical authorization release, a PSEBA general information release authorizing the collection of information as set forth in Section C above, and if applicable, other sources of health insurance benefits currently enrolled in or received by the employee and or family members if the employee is deceased. E. The PSEBA medical information release must specify name and address information for pertinent health care provider(s) and hospital(s), along with employee’s and/or his/her authorized representative’s signature and witness signature. F. The PSEBA general information release must specify name and signature of employee or his/her authorized representative along with legal proof of said representation along with name and signature of witness authorizing the collection of information pertinent to the incident review process. G. On the date that the PSEBA application is deemed complete by the Village, the completed application, which will include a completed PSEBA application, PSEBA medical release and PSEBA general information release, shall then be

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submitted to the Village Manager, as the Preliminary Record, and a copy of the same shall be date stamped and provided to the Applicant. H. Upon receipt of a complete application for PSEBA benefits timely filed, the Village Manager shall review the Application and supporting documents to make an initial determination as to whether or not an administrative hearing is required to determine whether to:

a. Grant benefits based upon the facts on the application as it stands; b. Set matter for an administrative hearing before a Hearing Officer to make a

determination based on the result of an administrative hearing. c. Enter such other finding as is consistent with the evidence or by agreement

of the Applicant and the Village. I. If the Village Manager grants the benefit based on the Preliminary Record as it stands, the Applicant will be contacted, by the Village Manager’s Office, within thirty (30) days of the decision. The Applicant will be required to contact the Finance Director for benefit explanation and processing. J. If the Village Manager denies the benefit based on the Preliminary Record as it stands, the Applicant will receive written notice of such denial and the Applicant shall have the right to request an administrative hearing which must be served in writing to the Village Manager not later than thirty (30) days after being served with written notice of the denial. Upon receipt of a timely notice from the Applicant, the Village Manager shall schedule an administrative hearing and serve the Applicant with Notice of the Administrative Hearing. K. If the Applicant, upon receiving written notice of denial, chooses not to request an administrative hearing, the Applicant will be required to contact the Finance Director to discuss other options in which the Applicant may be eligible to participate. L. If the Village Manager determines the matter requires an administrative hearing, the Applicant will be given written notice of such decision along with a date for the scheduled administrative hearing. M. If the Applicant, upon receiving written notice of the administrative hearing date, cannot attend said date as indicated in the Notice of Administrative Hearing,

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the Applicant must contact the Hearing Officer within seven (7) days after being served with notice of the administrative hearing, communicating alternative hearing date(s) which are within close proximity of the original date indicated by the Hearing Officer. Failure to appear may result in denial of benefits.

Section 3. ADMINISTRATIVE COMPOSITION

The administrative hearing shall be scheduled, which hearing shall be comprised of a hearing officer whose power and authority and limitations are as follows:

A. Power of the Hearing Officer. The hearing officer shall have all of the powers granted to him under common law relative to the conduct of an administrative hearing including the power to:

1) preside over all village hearings involving PSEBA;

2) administer oaths;

3) hear testimony and accept evidence that is relevant to the issue of eligibility under PSEBA;

4) issue subpoenas to secure attendance of witnesses and the production of relevant papers or documents upon the request of the parties or their representatives;

5) rule upon objections in the admissibility of evidence;

6) preserve and authenticate the record of the hearing and all exhibits in evidence introduced at the hearing;

7) issue a determination based on the evidence presented at the hearing, the determination of which shall be in writing and shall include a written finding of fact, decision and order.

B. Hearing Officer. The Mayor with the consent of the Board of Trustees is hereby authorized to appoint a person to hold the position of a hearing officer for each and every individual hearing that shall come before this Village. In making said selection, the Mayor shall consider all pertinent information including, at a minimum:

1) the candidate's ability to comply with the job description as set forth herein;

2) background and performance data made available to the Mayor on file with the Village or otherwise obtained by the Village;

3) the candidate must be an attorney licensed to practice law in the State of Illinois for at least three (3) years and have knowledge of and

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experience in employment and labor law, general civil procedure, the rules of evidence, and administrative practice.

Section ____4. PROCEDURE

The system of administrative hearings for determination of eligibility for benefits under PSEBA shall be initiated either by the Village Manager or by an Applicant after the submission of a full and complete PSEBA application as described in more detail in Section 2 requesting the benefits enumerated under PSEBA and requesting the setting of a hearing to determine eligibility to receive said benefits.

Section ____5. ADMINISTRATIVE HEARING

An administrative hearing shall be held to adjudicate and determine whether the Applicant is eligible for benefits under PSEBA. If the Applicant is found eligible, the benefits shall be consistent with the Act

A. Time and date. Hearings shall be held on the date, time and place as established by the Village with appropriate notice served upon the Applicant.

B. Record. The Applicant, at Applicant’s expense, shall ensure that all hearings shall be attended by a certified court reporter and a transcript of all proceedings shall be made by said certified court reporter and a copy be provided to the Village at Applicant’s expense within fourteen (14) days of the date of the PSEBA hearing.

C. Procedures. The Village and the Applicant shall be entitled to representation by counsel at said hearing and may present witnesses, may present testimony and documents, may cross-examine opposing witnesses, and may request the issuance of subpoenas to compel the appearance of relevant witnesses or the production of relevant documents.

D. Evidence. The rules of evidence as set forth in the Illinois Code of Evidence shall apply.

E. Final Determination. The determination by the hearing officer of whether the petitioning Applicant is eligible for the benefits under the Public Safety Employee Benefits Act (820 ILCS 320/1 et seq.) shall constitute a final administrative determination for the purpose of judicial review under the common law writ of certiorari.

F. Burden of Proof. At any administrative hearing the Applicant shall have the obligation and burden of proof to establish that the Applicant is qualified to receive the benefits.

G. Administrative Records. All records pertaining to the administrative process will be held in a separate file in the employee’s name within the Finance Department of the Village.

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Section 6: SEVERABILITY.

If any section, paragraph, clause, phrase or part of this ordinance is for any reason held invalid, such decision shall not affect the validity of the remaining provisions of this ordinance, and the application of these provisions to any person or circumstances shall not be affected thereby.

Section 7: CONFLICT.

All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed insofar as they conflict herewith.

Section 8: PUBLICATION OF ORDINANCE.

The Village Clerk is authorized to publish this ordinance in pamphlet form.

Section 9: EFFECTIVE DATE.

This Ordinance shall be in full force and effect immediately from and after its passage and approval.

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[INSERT MUNICIPALITY]

Application for Benefits under the Public Safety Employee Benefits Act (“PSEBA”)

PLEASE NOTE:

A complete application must be filed with the Village Manager’s office within thirty (30) days of filing a pension claim or within thirty (30) days the date of adoption of Ordinance No. ____ Please provide the following information in as much detail as possible.

1) Applicant Information including

a. Name of Employee or Name of Applicant if not the Employee b. Address, City, State, Zip c. Phone

2) If the applicant is a family member, describe the relationship to the injured or

deceased public safety officer. 3) List Name, Age and Relationship of Spouse and All Dependent Children.

4) Describe the details surrounding the event giving rise to this application,

including but not limited to date, time, place, nature of injury and all other factual circumstances surrounding the incident giving rise to the claim, including witnesses to the incident, other public safety personnel on site, including but not limited to fire district and other police department personnel.

5) List the witnesses that you intend to call in the event that a PSEBA hearing

required.

6) Please describe the nature, extent, date, and circumstances of any previous work related, personal injuries or illness that created any temporary, partial or permanent disability for the public safety officer.

7) Please include the name and address of treating physician(s).

8) Please describe whether you suffer from any preexisting conditions which your

injury aggravated or made worse.

9) Describe preexisting condition.

10) List all treating physicians for any preexisting condition. (name, address, phone number)

11) State whether your disability is a result of your “injury” or whether it results

from a preexisting condition.

12) Has the applicant made any other requests in the past for PSEBA benefits? If so, please explain.

13) Has a line-of-duty disability pension been applied for or granted by the Village’s

Police Pension Fund Board?

a. Applied for: If yes then Date ____ No _____ b. Granted: If yes then Date ____ No _____

14) If so, please provide the date of application or pension and attach copies of any

materials submitted in support of such a pension. 2018 Employment Law Seminar

April 25, 2018 CH. 5. Page 84

15) List any and all witnesses to the qualifying injury and/or death (include name,

address and phone number).

16) List all physicians who issued reports regarding your application for a line of duty pension application.

17) Describe how the injury directly resulted from: 1) a response to fresh pursuit; 2)

what was reasonably believed to be an emergency; 3) the investigation of a: i) criminal act; or ii) an unlawful act perpetrated by another.

18) Provide any other facts that would qualify you for PSEBA benefits.

19) Are you currently insured under the Village health insurance plan? Yes No.

20) List other current sources of health insurance benefits payable to you. Include

company name, benefit plan, and the cost of any such plan:

Company Name Benefit Plan Cost of Plan

21) Have you gone through an ADA Reasonable Accommodation Hearing process?

Yes No 22) What accommodation did you request?

23) If so, what was the result?

24) On what date did you engage in an interactive dialogue regarding your request

for a “reasonable accommodation”?

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PSEBA DISCLOSURE ACKNOWLEDGEMENT To determine eligibility for PSEBA benefits, the [INSERT MUNICIPALITY] and its attorneys may need to review relevant medical records from yourself or the injured public safety officer. Please complete and attach the waiver form to authorize the Village to review medical records. This statement is made for the sole purpose of receiving benefits under the Public Safety Employee Benefits Act from the [INSERT MUNICIPALITY]. The information contained in this application is true to the best of my knowledge and belief. I understand that it is unlawful for a person to willfully and knowingly make, or cause to be made, any false, fraudulent, or misleading oral or written statement to obtain health insurance coverage as provided by the Public Safety Employee Benefits Act. 820 ILCS 320/10(a)(3). Any omission of information related to this application could constitute a basis for denial. Such actions constitute a Class A Misdemeanor and can serve as the basis for denial or forfeiture of any benefits paid out under the Public Safety Employee Benefits Act. I understand the terms of the [INSERT MUNICIPALITY] PSEBA policy and PSEBA procedure. I specifically understand that my PSEBA benefits will include enrollment in the Village’s HMO health plan, or any alternative basic plan that the Village may substitute from time to time. I certify the truthfulness of the content of the information contained in the attached application. I further certify that this application is complete and I am not aware of any additional information that is relevant to this matter. Name and Signature of Applicant Date: ___________________________ ____________________ State of Illinois ) County of ____) I, ___________________, a Notary Public, in and for the County and State aforesaid, do hereby certify that _____________, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he/she signed and delivered the same instrument as his/her own free and voluntary act for the uses and purposes therein set forth. Given under my hand and Notarial Seal this ________ day of _________, 20___

____________________________ Notary Public

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Medical Information Release (Required for each health care provider)

To: And: I hereby authorize my physician, physical therapist, and any and all other health care providers, as well as the institution(s) with which they are affiliated, to release to the [INSERT MUNICIPALITY] and/or its representatives any and all medical records or other medical information (including but not limited to medical or mental health records, reports, x-rays, photographs, notes, bills, payment schedules, prescriptions, insurance records or claim forms) which relate in any way to my ability to perform the essential duties of a Public Safety Officer with the Village as well as my eligibility for benefits under the Public Safety Employee Benefits Act. The above described medical records and information should be released to the Finance Director of the [INSERT MUNICIPALITY], or any other authorized Village representative. This request specifically includes the release of any records relating to my current or past mental health status as deemed relevant by the Village, so that the Village may assess my qualification for benefits under the Public Safety Employee Benefits Act. I understand that by releasing these records, I am waiving any rights I might have under the Illinois Mental Health and Developmental Disabilities Confidentiality Act (“HIPPA”), which governs disclosure of certain confidential mental health information. I understand that if I refuse to consent to disclose these records, the Village may proceed with determining my eligibility for benefits under the Public Safety Employee Benefits Act based on only what information it has currently. This consent will expire one year from the date next to my signature, unless I revoke it earlier, in writing, signed by a witness. I understand I am waiving any rights I may have under HIPPA for any disclosure made prior to a revocation. I understand any such revocation will not be effective until delivered to the health care providers listed above and will not affect any prior release of information. I understand I may ask to inspect and/or copy the records which are being released. Name: __________________________ Date: ________________ State of Illinois ) County of ____) I, ___________________, a Notary Public, in and for the County and State aforesaid, do hereby certify that _____________, as _____________ of ________, personally known to me to be the same person whose name is subscribed to the foregoing instrument, appeared before me this day in person and acknowledged that he signed and delivered the same instrument as his own free and voluntary act and as the free and voluntary act of ______, for the uses and purposes therein set forth. Given under my hand and Notarial Seal this ________ day of _________, 20___

________________________________ Notary Public

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[INSERT MUNICIPALITY]

Public Safety Employee Benefit Act Procedure

Introduction The Public Safety Employee Benefit Act (PSEBA) allows for public safety employees, who suffer a “catastrophic injury” in the line of duty, the opportunity to apply for the Village’s base health insurance coverage paid at 100% for the employee for the rest of the disabled employee’s life and his or her qualified dependents for a period of time defined by the Act. The PSEBA also allows for the qualified spouse and/or qualified dependent(s), who were granted a surviving spouse/dependent person, due to a duty related death of a public safety employee, the same opportunity to apply for the Village’s base health insurance plan paid at 100%, for the period of time defined by the Act for both the surviving spouse or qualified dependent. Until processing and acceptance of the Public Safety Employee Benefit is completed, the applicant may remain on the Village’s health insurance plan (either HMO or PPO plan), however, they will be responsible for paying 100% of the insurance premium cost. Health insurance premiums must be paid by the last day of the month for each month’s coverage during the PSEBA review process. Once the application is reviewed, and if the benefit is awarded, the employee may be reimbursed any premiums paid within 60 calendar days of the award date. This reimbursement would be for premiums paid from the official date of death or disability, through the official date of the PSEBA award. If the PSEBA benefit is not awarded, the applicant may continue to remain on the Village’s health insurance plan, however, they will be responsible to pay 100% of the health insurance premium cost. If the applicant chooses not to remain on the Village’s health insurance plan, they will be eligible to continue health coverage under applicable laws as defined by COBRA. To review the Village PSEBA application process and procedural requirements, please review Village Ordinance No. which can also be found in Chapter , Article of the Village Municipal Code, and are available from the Village Manager or Finance Director.

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Keith L. Hunt

Keith L. Hunt is the founder and sole shareholder of Hunt & Associates, P.C. He comes from a family of entrepreneurs and practiced with the law firms of Hinshaw & Culbertson, and Niro, Scavone, Haller & Niro, before successfully starting his own practice in 1991. Mr. Hunt is admitted to practice in the State of Illinois, and the Eastern District of Michigan, the Northern District of Illinois (Trial Bar) and the United States Courts of Appeal for the Fifth and Seventh Circuits. Mr. Hunt has been admitted pro hac vice in approximately fifteen district courts throughout the country. Education 1985 - Juris Doctor, with High Distinction (Magna Cum Laude) The John Marshall Law School (Top 3% of class). 1984-1985 - Served as an Editor to The John Marshall Law Review. 1983-1985 - Recipient of Faculty Scholarship. Represented the school in four national moot court competitions. 1983-1984 - University of Chicago, Graduate Economics Program. 1982 - Bachelor in Arts, Economics, State University of New York at Albany. 1980 - Associate in Arts, Orange County Community College, Middletown, New York Consulting CBS “The Good Wife” (2011, 2013 & 2014). Consultant regarding Labor & Employment issues for current season episodes. Articles & Publications K.L. Hunt & S. Levee, When Does “;o” [a wink] Become Offensive: Workplace Harassment in a Textual Revolution, The Docket, September 2010. K.L. Hunt & S. Levee, Layoffs and Downsizing: Economic Necessity or Pretext for Discrimination, Lake County Bar Journal, The Docket, September 2009. T.J. Haller & K.L. Hunt, "Protecting Profits, Goodwill & The Corporate Image," Crain's Chicago Business (1989). Reviewed Intellectual Property chapters in Drafting Employment Agreements (Bender, 1993).Consultant to Matthew Bender in various Labor, Employment and Intellectual Property publications.

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Speeches & Seminars Mr. Hunt regularly speaks on topics relating to the firm’s practice areas, including the following partial list: Guest lecturer, Saint Mary’s College at Notre Dame, “Sexual Harassment and Women’s Workplace Issues”, Fall 2014. Speaker, “Illinois Employment Law Update” Lake County Bar Association Employment Law Committee Spring Seminar,(April 2014). Speaker, “Workplace Privacy Issues & Social Media in the Workplace”, LCBA Labor & Employment Law Committee, September 19, 2012, Lake Forest, Illinois. Speaker, “Cyberbullying”, LCBA Diversity Seminar, November 8, 2011, Waukegan, Illinois. Speaker, “Textual Harassment” LCBA Civil Trial Seminar, May 2010, Biltmore County Club, Illinois. Speaker, “Significant Developments in Employment Law”, Lake County Bar Association, May 25, 2008, Lake Geneva, Wisconsin. Speaker, “Current Topics in Employment Law”, LCBA Civil Trial Seminar, May 2004, Lake Geneva, Wisconsin. Speaker, “Class Action Settlements: Ford Motor Company”, Chicago Bar Association, Labor and Employment Committee, November 14, 2001. Speaker, “Racial Profiling”, ATLA Convention, Montreal Canada, July 18, 2001. Speaker, “Racial Profiling and Using Evidence From Outside the Workplace to Prove a Hostile Work Environment”, Chicago Bar Association, Civil Rights Committee, January 17, 2001. Speaker, “Racial Profiling”, Latinos United Comprehensive Advocacy on Fairness in Housing, October 12, 2000. Speaker, Greater O'Hare Association (Chamber of Commerce) Seminar on Human Resource Issues, "Employer Liability Beyond Title VII" and "Sexual Harassment", September 20, 1996. Speaker, Greater O'Hare Association (Chamber of Commerce) Owners' Roundtable, "Recognizing and Dealing With Employment Issues in Small and Medium Sized Business: Avoiding the Pitfalls and Traps," March 31, 1996.

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Speaker at seminar on "Current Employment Law Topics," Chicago Bar Association, Labor Employment Committee Young Lawyers Division, February, 1996. Speaker on "Sexual Harassment" Illinois State Bar Association Labor and Employment Committee seminar, Fall, 1996. Lecturer, National Business Institute Seminar (all day) covering "Americans With Disabilities Act", "Sexual Harassment", "Using of Employee Handbooks and Policy Manuals", and "Defending Employment Litigation." Elk Grove Village, Illinois, July, 1994. Speaker, Illinois Dental Hygienists Society, "Dental Malpractice & Insurance Coverage: Current Issues & Topics", May, 1989. Guest Lecturer, The John Marshall Law School, Civil Procedure and Lawyering Process Course, "Legal Malpractice and Rule 11", Fall 1987. Guest Lecturer, Prairie State College Dental Hygiene Program, "The Illinois Dental Practice Act & Dental Malpractice", Spring, 1987. Lecturer, South Suburban Dental Hygiene Association, "Dental Malpractice and the AIDS Crisis: Liability for Refusal to Treat", September, 1987. News Sources Quoted in Chicago Daily Law Bulletin regarding highly publicized sexual harassment and discrimination claims. Quoted in Illinois Employment Law Report, January 1996, in feature article "Bill Gives Bosses Okay to Eavesdrop on Workers Again." Quoted in Chicago Daily Law Bulletin regarding defense of case resulting in significant limitation on EEOC's authority to bring suits against employers. Significant Cases Lorenzen v. OakBrook Investments, breach of employment agreement where employer terminated employment agreement shortly before equity vested. Court awarded $794,000 in back wages, commissions and value of equity interest. Roberts v. Cook County, Sexual harassment trial involving former Deputy Director of Secret Service and former Cook County Inspector General – jury trial – Verdict of $500,000 ($100,000 compensatory and $400,000 punitive). L'Heureux v. Cary Fire Protection District Multi-plaintiff sexual harassment, discrimination and retaliation claims by current and former firefighter/paramedic resulting in adoption of new harassment, hiring, testing and other policies.

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Martinez v. Village of Mount Prospect, 96 C 6027 (N.D. Ill. 2000) Medrano v. Village of Mount Prospect, 98 C 4638 and Moser v. Village of Mount Prospect, 98 C 7580 Multiple cases related to racial harassment, discrimination and retaliation including allegations of racial profiling by police department resulting in jury verdict of $1.2 million (for Martinez) – largest reported award for individual liability against governmental officials and first known racial profiling verdict in United States. Warnell v. Ford Motor Company, 1998 WL 748328 (N.D. Ill 1998) Class action case, including 14 named plaintiffs, against two Chicago area plants for sexual and racial harassment and discrimination. Class of more than 1,000 potential claimants resulting in a settlement of $12 Million Dollars. Conway v. Cook County Sheriff: Sexual harassment and retaliation claims by female civilian employees against high ranking Sheriff's Office official with whom plaintiff had a four year consensual relationship. Resulted in significant settlement and eventual removal of harasser. Mendoza v. Mid-American Elevator, 98 C 2917 (N.D. Ill. 2000) Age and retaliation allegations by a bargaining unit employee. Fondrliak v. Commonwealth Edison, 98 C 5985 (N.D. Ill.) Nuclear whistleblower case filed after utility removed plaintiff from position for having complained about nuclear safety violations; upon reassignment, plaintiff was sexually harassed at new job assignment. Welsh v. Commonwealth Edison, U.S. Department of Labor 1998 Six-plaintiff nuclear whistleblower case arising out of removal of employees from positions in utility after they complained about safety violations to the Nuclear Regulatory Commission (NRC) resulting in the largest fine ever imposed against a utility. Rivera v. Ford Motor Company, 95 C 9759 (N.D.Ill. 1997) Nine-plaintiff case involving allegations of a pattern and practice of sexual harassment, hostile working environment and race discrimination at Chicago area manufacturing facility. EEOC v. Walner, No. 95-3524, 1996 U.S. App. LEXIS 18865 (July 31, 1996) Class action suit filed against prominent Chicago area personal injury law firm alleging hostile and discriminatory work environment. Schneider v. Northwestern University, 925 F. Supp. 1347 (N.D. Ill. 1996) Nine-week bench trial involving claims of denial of tenure to university professor due to sex discrimination. Gorence v. Eagle Foods Inc., No. 93 C 4862 (N.D. Ill. 1995) Multiple plaintiff age, sex and retaliation claims filed as class action against Midwest grocery chain involving promotion and compensation issues.

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Janopoulos v. Walner, 1996 U.S. Dist. LEXIS 3157 (N.D. Ill. 1996) Sexual harassment and discrimination claims against prominent Chicago personal injury law firm. Zoltek v. Safelite Glass Corp., 884 F. Supp. 283 (N.D. Ill. 1995) Fair Labor Standards Act case on behalf of several workers alleging violation of the overtime requirements of FLSA

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