Failure to give Notice of Administrative Appeal Rights
When an employee has tenure or may only be terminated for cause, the employee has a property interest in public employment. Due process ordinarily requires the opportunity for a hearing in connection with deprivation of that interest, such as termination of employment. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).
There is often a statute or regulation that requires the employer to provide a written notice of the right to appeal the employer’s determination. For example, the King County Code requires that career service employees be provided notice of their right to appeal to the King County Personnel Board, and the right to initiate grievance procedures with their union. King County Code § 3.12.270(D). If the employer is required by law to send this notice and fails to do so, the employee may be excused for failing to properly or timely appeal the determination. See Hughes v. Moyer, 452 Md. 77, 156 A.3d 770 (2017); Shiflett v. U.S. Postal Service, 839 F.2d 669 (Fed. Cir. 1988). At least one court has even gone so far as to require an employer to give notice of rights on appeal even without a statute or regulation requiring them to do so. Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990).
Normally, if the employee’s rights on appeal are set forth in public statutes or regulations, the employee would be deemed to know the law, and could not complain that they did not know their rights because they did not receive notice of them. However, “there are instances where a legislature has superseded this common law principle by requiring specific notice to the public or to specific parties of specific legal rights.” Hughes, 452 Md. at 98. It would defeat the purpose of requiring an employer to give notice if the employee was then penalized for failing to do what the notice should have told him to do. Id. at 98 n.21. “The critical and controlling fact . . . is not the alleged lack of diligence on the part of the [employee], but the flagrant violation of the regulations by the [employer] in failing to give petitioner notice of her appeal rights in the form and manner prescribed by the regulations . . . .” Shiflett, 839 F.2d at 673.