I received recently this question: One of our Metro Fire captains was terminated but got his job back on appeal to the city’s personnel board. However, the board ordered him to be demoted to engineer. Isn’t that double jeopardy? Put another way, if the department ordered him to be demoted and the personnel board ordered him to be terminated, why isn’t it double jeopardy when they reduce the penalty?
Answer: A change(s) to an employee’s penalty that occurs as part of a disciplinary process is not double jeopardy per se.
Double jeopardy is a constitutional principle that applies in criminal cases. The Metro Fire circumstance raised a question about industrial double jeopardy, which involves successive disciplinary actions for the same offense. However, not everyone is familiar with nor accepts the appropriateness of the term industrial double jeopardy.
Due process rights
The origin of industrial double jeopardy comes from two bedrock principles in our legal system, res judicata and collateral estoppel.
Res judicata (Latin for “the matter has been decided”) means that once a final determination on the merits has been reached, the issue cannot be readjudicated.
Collateral estoppel is an equitable principle that allows a court or an adjudicator to stop consideration of an issue that the parties have, or should have, previously litigated. It often is referred to as issue preclusion.
Combined, res judicata and collateral estoppel serve to block a second disciplinary action over the same infraction or one that arises out of the same set of facts. Some courts have held that these principles rise to the level of being a constitutional due process right for public employees. Neither principle prohibits an appeal of the original discipline nor even a request for reconsideration, either of which may increase or decrease penalties.
The more important issue in the Metro Fire fact-pattern is whether those who decreased the penalty to demotion from termination were authorized to do so as part of the appeal process. There are disciplinary systems by which an appellate authority hears a case de novo, which means it hears a case anew. Typically, de novo reviews are not bound by what was decided previously and can relitigate the two questions that must be answered in any disciplinary matter, namely, whether the disciplinary charges are sustained and, if sustained, what is the appropriate penalty.
Disciplinary systems also may provide for appellate review. The appellate authority cannot reconsider the factual determinations that were made at the hearing but can consider questions of law that also may be in issue.
Another scenario
The ability of an appellate authority to affirm or reverse a penalty or to establish a new penalty under de novo or appellate review is a function of the laws that govern that process. As such, whether the personnel board that’s involved in the Metro Fire matter holds a de novo review and/or whether it is authorized to fashion its own penalty is a function of the specifics of the disciplinary process in the jurisdiction.
Let’s compare the Metro Fire example to a factually different scenario that would trigger industrial double jeopardy concerns: Firefighter A is charged with violating the department’s social media policy for posting something that’s inappropriate on Facebook. That member receives a written reprimand. The matter later becomes public, which prompts a public outcry. The mayor and city council demand Firefighter A’s termination, and the member is terminated.
Assuming that the decision to terminate Firefighter A wasn’t part of an appeal process nor a legitimately authorized request for a neutral adjudicator to reconsider the penalty that was imposed, Firefighter A was punished a second time for an infraction for which Firefighter A previously was punished. That would be the case even if Firefighter A initially was reprimanded for violating the social media policy and then terminated for conduct unbecoming, assuming that both charges arose out of the same post. Collateral estoppel prohibits the department from raising an issue that was decided or could have been raised at an earlier legal proceeding. When the city punished Firefighter A for the social media policy violation, it could have charged the member with conduct unbecoming. When it opted to reprimand Firefighter A,
it in essence waived its right to punish that member for additional infractions that arose out of the same conduct.
The rule at its core
There are some nuances and exceptions in the law that are related to industrial double jeopardy, and the ability of either party to seek a reconsideration of an earlier decision complicate the matter further. This brief overview explains the general rule so that folks can grasp its essence without getting caught up in the weeds of the exceptions.
