Procedural due process

Procedural due process asks two questions: whether a protected liberty or property interest exists, and if so what process was required before it was taken away.

Property interests arise from an independent source such as statute, ordinance, contract or established practice creating a legitimate claim of entitlement — a licence, a tenured position, continued utility service. A unilateral expectation is not enough. Where an official has unfettered discretion, no entitlement generally exists.

Liberty interests include reputational harm coupled with the loss of a tangible interest, which is the basis of the name-clearing hearing.

How much process. The balance weighs the private interest affected, the risk of erroneous deprivation through the procedures used and the value of additional safeguards, and the government’s interest including administrative burden.

The core is notice and an opportunity to be heard at a meaningful time and in a meaningful manner, before a neutral decision-maker. Pre-deprivation process is the norm; post-deprivation process suffices for emergencies and for random unauthorised acts where the state provides an adequate remedy.

Bias. A decision-maker with a pecuniary interest in the outcome, or who has prejudged, violates due process regardless of the procedures followed.

Practical municipal application. Written notice stating the grounds, an opportunity to present evidence, a decision on the record, and reasons.