A Notice Of Pre-Termination Hearing And Notice Of Dismissal
Of An Employee Must Contain All Reasons For Dismissal

On March 6, 2007, the Arizona Court of Appeals decided Carlson v. The Arizona Personnel Board et al., 1 CA-CV 06-0110 (March 6, 2007), which involved the due process requirements of pre- and post-termination proceedings before the State Personnel Board. In Carlson, the Arizona Court of Appeals held that a hearing officer, appointed to hear an employee’s appeal from his termination of employment, and the Arizona State Personnel Board (the “Board”) erred by upholding the employee’s termination for reasons not asserted in the notice of dismissal. Such conduct, the Court held, violated the employee’s procedural and substantive due process rights, as well as exceeded the jurisdiction of the Board.

In Carlson, two employees, Carlson and Gustafson, of the Arizona Department of Environmental Quality (“ADEQ”), were engaged in a romantic relationship. Carlson directly supervised Gustafson and gave her high performance appraisals and allegedly attempted to help her gain promotions within ADEQ. After their relationship ended Carlson loaned Gustafson $25,000. When Carlson began to press Gustafson about repaying the loan, he stated that he would no longer work toward gaining Gustafson promotions. Gustafson then filed a complaint of sexual harassment with ADEQ. ADEQ then put Carlson on administrative leave with pay pending an investigation.

At the completion of its investigation, ADEQ issued Carlson a Notice of Charges of Misconduct letter as required by the state’s personnel rules prior to termination. The letter stated that ADEQ was considering dismissing Carlson, and stated that the “specific charges and explanations” for that decision was Carlson’s attempt to gain promotions for Gustafson and his subsequent decision not to work toward such promotions after Gustafson blocked Carlson’s e-mails. The letter concluded by stating: “Your actions constitute a serious violation of statutes, rules and policies.” Carlson responded to the Notice of Charges letter but ADEQ chose to terminate him. In ADEQ’s Notice of Dismissal, ADEQ identified the same facts and statutory and rule citations contained in its Notice of Charges letter.

Carlson appealed his termination. ADEQ officials testifying at the hearing confirmed that Carlson was terminated for sexual harassment based on the facts outlined in the Notice of Dismissal (and Notice of Charges letter). ADEQ officials also confirmed that Carlson was never given any other reason for his termination, but one official also testified that Carlson’s conduct violated other provisions of the Standards of Conduct that were not specifically asserted as grounds for his termination.

The hearing officer found that Carlson had not sexually harassed Gustafson but Carlson violated several other Standards of Conduct that warranted termination. Thus, the hearing officer found, because ADEQ arrived at the right result for the wrong reason, Carlson’s termination should stand. The hearing officer rejected Carlson’s claim that he was “unfairly ambushed” during the hearing because he was not on notice that the other purported violations of the Standards of Conduct provided bases for termination other than the sexual harassment claim.

The Arizona Court of Appeals found that the hearing officer and Board failed to provide Carlson with due process during the post-termination administrative appeal. The Court concluded that Carlson was not provided adequate notice of all of the allegations and charges against him. The pre-termination notice and termination notice ADEQ provided to Carlson raised only allegations of sexual harassment and Carlson’s statements that he would no longer pursue promotions for Gustafson, but the hearing officer based its decision to uphold the termination on violations of other portions of the Standards of Conduct. The Court found that Carlson was not provided sufficient notice of the charges against him because the ADEQ letters generally referred to violations of “serious violation[s] of statutes, rules and policies.” The Court found that even though “substantial evidence” supported the hearing officer’s findings of other violations, the violations of Carlson’s due process rights warranted vacating the judgment of the superior court upholding the Board’s termination decision and remanding the matter for further proceedings before the Board consistent with the Court’s opinion.

THE FOREGOING IS MERELY A PARTIAL SUMMARY OF THE CASE
AND IS NOT INTENDED TO BE RELIED UPON AS A LEGAL OPINION.