Police Department Promotion Policies Did Not Automatically Create Property Right

By Loyd Willaford and Matt Baker

In Mitchell v. Cooper, three police sergeants sued their employer, a police department, for a violation of procedural and substantive due process. They argue that the department violated departmental directives by not notifying qualified applicants of two lieutenant vacancies. The plaintiffs also alleged that they were not considered, and that unqualified candidates were given the jobs. The U.S. Federal District Court for Delaware dismissed some of the sergeants’ claims.

Benjamin Mitchell, Scott O’Brier, and Victor Letonoff are sergeants in the Rehoboth Beach Police Department. The Department created two new vacancies for lieutenants. None of the plaintiffs were promoted into these vacancies, and they claim that they were never even considered. Instead, less qualified candidates were promoted. The plaintiffs contended that Department Directive 34 outlines criteria for promotion to lieutenant, and therefore creates a constitutionally protected property right. The plaintiffs also claimed that City Personnel Code, which declares that promotions will be based on merit, creates a property right. If there was a property right, then their procedural due process was violated.

The City argued that Directive 34 was not the controlling policy. It specifically pointed out that the CBA between the City and the sergeants’ union allowed the City to change any directives at its own discretion so long as each employee was notified. The plaintiffs argue that the merit provisions of the Personnel Code, taken together with Directive 34, create a rigid standard of promotion and therefore a predictable path and a property right. The city moved for summary judgment, but the Court held that there were too many issues of material fact regarding whether the Directive or City Personnel Code governed promotions:

….. the Court concludes that neither Directive 34 nor the advertising provision create a protected property interest, but also that summary judgment for Defendants is not warranted because a reasonable jury could find that the merit selection provision [of the City Personnel Code] — in combination with other evidence — may give rise to a protected property interest.

However, the Court held that if Directive 34 applied, then the City would be entitled to judgment because Mitchell was not eligible for promotion following those guidelines. In addition, the jury would need to find that the combination of policies created a property right. The court held that neither policy, on their own, constituted such a right.   The Court also dismissed the sergeant’s claim that the City violated their substantive due process rights. The Court ruled that the rights asserted were not “fundamental” because they were not created by the constitution but rather were mere contractual rights and thus the sergeants had no substantive due process rights.

This case illustrates the difficulty Courts have with constitutional claims  which are rooted in a City’s violation of a contract or policy.  Courts are generally reluctant to find constitutional violations, especially in the employment context, except in the most egregious of circumstances.  This case would almost certainly have been better brought as a grievance under the CBA.  This is because an arbitrator is interested in enforcing the contract and policies which might be incorporated into the contract, which is really what the officers wanted here. Attempting to turn it into a constitutional violation was a stretch that most courts will not allow.

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