Terminating a Publicly Appointed Official
Termination of a publicly appointed official, such as a clerk, administrator, fire chief, or similar position, requires careful planning due to the many legal implications that are in play. This article provides an overview of the stages involved in the termination process of a public employee.
Early Considerations
First, before initiating the termination process, a substantial investigation supported by documentary evidence is vital. Ideally, the documentation is in place long before the time that a termination is even a possibility. Examples of the type of evidence to have in place include documentation of shortcomings in performance evaluations or a written recordation of events in which internal policies were violated.
Second, public employees are typically entitled to a level of due process that is less existent in the private sector. In many instances, public employees are entitled to a hearing, right to call witnesses, and a written decision by a separate board or body that must evaluate certain legal standards before proceeding with termination. Thus, it is imperative that a public employee, upon receiving notice of an intent to terminate, is given a fair opportunity to respond to allegations brought by a public body regarding termination.
If it Might Go Public
As previously mentioned, many public official positions require an official action taken by a board or committee. In many cases, this action is taken at a public meeting in which members of the public have the right to be present. This also has an added implication because in instances where the decision-making body consists of elected officials, the question of termination can be just as much a political question as it can be for an actual evaluation of an employee’s performance. This is why proper documentation from the investigative process is imperative for ensuring that the decision-making body has sufficient basis for termination, and results in a unanimous decision for appeal purposes.
Lastly, it should be noted that separation agreements have the potential to be subject to becoming a public record. Therefore, it is important to craft the agreement in a way that is not just a document that is reviewed by a local government and its former employee, but rather, could become the subject of scrutiny by the public.
Bottom Line
In Wisconsin, as with many states, terminating a public employee can be a tenuous process. In many instances, seeking a separation agreement is likely a more effective alternative than proceeding with termination in the public sphere. A local government can save substantial legal costs by avoiding a public hearing process. Limiting the public’s access may also prove to be a valid consideration for entering into a separation agreement.
This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.
