BEXAR COUNTY SHERIFF'S CIVIL SERVICE COMMISSION, Petitioner, v. Fred G. DAVIS III, Respondent, 802 S.W.2d 659

OPINION PHILLIPS, Chief Justice. At issue is whether respondent, a public employee who could not be discharged except for cause, should have been provided with the names of his employer’s witnesses before either his pretermination or his post-termination hearing. We hold that, under the facts of this case, the Constitution imposed no requirement on the government to notify the employee of the names of the witnesses against him prior to either his pretermination or post-termination hearing.

FACTS On September 17, 1985, Fred Davis, a captain in the Bexar County Sheriff’s Department, received a "Notice of Proposed Dismissal,” informing him that he was being dismissed from his position for violations of the Rules of the Bexar County Sheriff’s Civil Service Commission.

Specifically, the notice alleged that Davis had violated rules prohibiting “[s]exual [harassment,” “[c]onduct or action that would seriously impair job effectiveness,” and “[cjonduct which has proven to be detrimental or has an adverse affect on the Department.” As the factual basis for these violations, the notice accused Davis of sexually harassing several, unidentified female employees and of engaging in “sexual encounters” at the Bexar County Courthouse with another woman, Debbie Windier.

On September 19, Davis responded to the notice in a letter to the Sheriff, denying that he had violated any of the regulations or that he had engaged in any of the alleged conduct. In his letter, Davis also requested more specific details about the allegations, including the complainants’ names. Davis was discharged on September 23, 1985, without yet having received a reply from the Sheriff. Subsequently, the Sheriff refused Davis’s request for the complainants’ names. Davis appealed his discharge to the Be-xar County Sheriff’s Civil Service Commission as permitted under the Commission rules.

The Commission held a formal hearing that occupied several partial days of testimony over a period of twenty-two days. At the hearing, over Davis’s objections that he had not received prehearing notice of the witnesses, four women testified that Davis had repeatedly sexually harassed them while they were employed by the Sheriff’s Department. Debbie Windier, the witness identified in the pre-dismissal notice that Davis received, did not testify. Through his two attorneys, Davis cross-examined the Department’s witnesses and presented eighteen witnesses on his own behalf.

At the close of the hearing, the Commission upheld Davis’s dismissal. Davis appealed to the trial court, which affirmed the Commission’s order. Davis then successfully appealed to the court of appeals, which reversed the judgment of the trial court and remanded to the Commission on the basis that the Commission had violated Davis’s federal procedural due process rights by failing to inform Davis of the names of the witnesses against him. 775 S.W.2d 807. The Commission then appealed to this court.

For the reasons that follow, we reverse the judgment of the court of appeals and affirm the judgment of the trial court. PROCEDURAL DUE PROCESS REQUIREMENTS The Due Process Clause of the fourteenth amendment to the United States Constitution provides that an individual may not be deprived of certain substantive rights — life, liberty, and property — without constitutionally adequate procedures. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494, 503 (1985).

An analysis of Davis’s procedural due process claim thus requires a two-part inquiry: whether Davis was deprived of a protected interest and, if so, what process was due to safeguard that interest. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 1154, 71 L.Ed.2d 265, 273 (1982); see also Board of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548, 556-57 (1972). In this case, the parties agree that Davis has a constitutionally protected property interest in continued employment with the Sheriffs Department.

The disputed issue concerns the process due Davis in order to protect this interest. We start with the principle that due process requires “that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656-57, 94 L.Ed. 865, 873 (1950). However, “[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation.” Cafeteria & Restaurant Workers Union v.

McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230, 1236 (1961).

The Supreme Court has instead identified three factors that must be considered in determining whether a requested procedure is necessary to provide due process to a terminated employee in any particular case: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976); see also Logan, 455 U.S. at 434, 102 S.Ct. at 1157, 71 L.Ed.2d at 277. In applying this test, the Court has distinguished between pre termination hearings and post-termination hearings. See Loudermill, 470 U.S. at 545-46, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. A terminated employee must be afforded an opportunity to present his version of the events both before and after termination; however, due process imposes different requirements at each stage because of the different interests present. Duchesne v.

Williams, 849 F.2d 1004, 1006-07 (6th Cir. 1988), cert. denied, 489 U.S. 1081, 109 S.Ct. 1535, 103 L.Ed.2d 840 (1989). Therefore, we consider the two separately. PRETERMINATION PROCEDURES In Loudermill, the Supreme Court held that every terminated employee is constitutionally entitled to “some pretermination opportunity to respond” to the charges that form the basis for his dismissal. Louder-mill, 470 U.S. at 542, 547-48, 105 S.Ct. at 1493, 1496, 84 L.Ed.2d at 504, 507.

The Court reasoned that the employee's interest in retaining employment is significant and that, before termination, “some opportunity for the employee to present his side of the case is ... of obvious value in reaching an accurate decision.” Id. at 543, 105 S.Ct. at 1494, 84 L.Ed.2d at 504. The Court then balanced this interest against the government’s interest in the expeditious removal of unsatisfactory employees and the avoidance of administrative burdens. The Court concluded that the government’s interest does not completely outweigh the employee’s interest in having an opportunity to respond.

Thus, prior to any termination, the employer must furnish the employee with “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” Id. at 546, 105 S.Ct. at 1495, 84 L.Ed.2d at 506.

However, these procedures “though necessary, need not be elaborate,” id. at 545, 105 S.Ct. at 1495, 84 L.Ed.2d at 506, since requiring more than an informal opportunity to respond “would intrude to an unwarranted extent on the government’s interest in quickly removing an unsatisfactory employee.” Id. at 546, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. We hold that the notice and hearing that Davis received prior to his termination provided Davis with all the preter-mination process that was due him under Loudermill.

The notice specifically cited the regulation Davis had violated (proscribing sexual harassment), explained the basis for the charge (complaints filed by several female employees), and described the acts he allegedly performed and the statements he allegedly made to the women. Furthermore, Davis was given an opportunity to respond to the allegations before his discharge. Under these facts, we hold that Davis was not constitutionally entitled to the names of the women who filed complaints against him.

The government’s interest in being able to suspend an unsatisfactory employee before providing details of its investigation outweighed Davis’s private interest in continued employment while he awaited his post-termination hearing. Furthermore, the existence of a post-termination hearing means that the decision not to provide Davis with the names of the government’s witnesses before his termination did not increase the risk that the final decision would be erroneous.

POST-TERMINATION PROCEDURES In Loudermill, the Court premised its finding that an informal notice and opportunity to respond were sufficient before termination on the existence of “a full post-termination hearing.” Loudermill, 470 U.S. at 546, 105 S.Ct. at 1495, 84 L.Ed.2d at 506. The Supreme Court, however, has never imposed specific requirements on such a post-termination hearing. In particular, the Court has never held that a terminated employee must be provided with the names of complaining witnesses prior to the post-termination hearing.

Therefore, we must apply the Mathews test to the competing interests at stake here to determine whether due process requires that Davis have received notice of the witnesses against him prior to his post-termination hearing. See, e.g., Loudermill, 470 U.S. at 542-43, 105 S.Ct. at 1493-94, 84 L.Ed.2d at 504. We recognize, of course, that Davis’s interest in retaining his job with the Sheriff’s Department is significant. Id. at 543, 105 S.Ct. at 1494, 84 L.Ed.2d at 504.

Under the specific facts of this case, however, the risk of erroneous termination because Davis did not receive advance notice of the names of the witnesses against him, as well as the probable value of such notice, is slight. The notice actually provided to Davis, along with the rights granted him to confront and cross-examine the government’s witnesses and to present his own witnesses, guaranteed that all relevant matters were adequately presented for consideration by the decision-making body.

Before his hearing, Davis was provided with a statement of the charges against him and a brief description of the government’s evidence. At the hearing, all the employer’s witnesses testified in Davis’s presence and Davis extensively cross-examined each of them. After the government had presented its case, Davis called eighteen of his own witnesses and even recalled two of the complainants who had testified for the government. Davis’s claim that he was unable to prepare an adequate defense without advance knowledge of the government’s witnesses is simply not supported by the record.

Even though he did not know the exact identities of the complainants, Davis knew that they had to be women who had been employed in his office during the time period in question. During the first day of testimony, Davis’s attorney admitted that he had prepared for each of these possible witnesses before the hearing. Because the hearing extended over several weeks and occupied only parts of a few days of each week, Davis had additional time to prepare his defense as the government’s case unfolded. Had Davis needed more time, he had the right to request a continuance, which he did not do.

The record demonstrates that Davis’s attorney conducted able and well-informed cross-examination of the witnesses, asking each witness specific questions about incidents in which she had been involved and repeatedly testing each witness’s credibility. Indeed, the Commissioners remarked that Davis’s attorney seemed extraordinarily well prepared. Therefore, we conclude that Davis’s hearing was sufficiently comprehensive to ensure that the lack of advance notice of witnesses did not create a significant risk of erroneous termination.

Finally, the government has an interest in not being required to provide the names of its witnesses before the hearing. An inviolable disclosure requirement would subject the government employer to additional administrative burdens and legal costs and would preclude an employer from producing additional or substituted witnesses at a hearing. In some cases, the government may reasonably conclude that post-termination confidentiality is necessary to ensure the unfettered testimony of the witnesses or to encourage future cooperation with government authorities.

Given these considerations, we hold that the government’s interests in flexibility, informality, and economy in this case outweigh Davis’s interest in receiving advance notice of the names of the witnesses against him. Under these facts, notice to Davis would have placed additional burdens on the government without perceptibly increasing the accuracy of the decisionmak-ing process.

Due process does not require that every administrative proceeding contain the full procedural framework of a civil trial. “[D]ue process is not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed.” Gagnon v. Scarpelli, 411 U.S. 778, 788, 93 S.Ct. 1756, 1763, 36 L.Ed.2d 656, 665 (1973). Even in the criminal context, the Supreme Court has noted that the lengths to which the government must go to protect individual rights are not without limits. Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433, 442 (1979); Patterson v.

New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281, 291 (1977). We therefore hold that Davis’s post-termination due process rights were satisfied. We recognize that there may be some circumstances in which the Constitution would require notice of adverse witnesses after termination.

In cases where the number of possible complainants is large, where the hearing is brief, where there is not adequate opportunity to cross-examine and prepare a defense, or where the employee is obviously surprised by his employer’s witnesses, due process might well require that the employee receive pre-hearing notice of the witnesses against him or a continuance of the hearing to prepare his defense. However, on the facts before us, we decline to hold that advance notice of witnesses is always constitutionally mandated.

Although this case-by-case approach does not provide a bright line with certain answers for government employers and employees, such ambiguity is, we believe, often inherent in the nature of due process. “ ‘[D]ue process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. at 895, 81 S.Ct. at 1748, 6 L.Ed.2d at 1236 (quoting Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 162-63, 71 S.Ct. 624, 643, 95 L.Ed. 817, 849 (1951) (Frankfurter, J., concurring)); see also Lassiter v.

Department of Social Servs., 452 U.S. 18, 31-32, 101 S.Ct. 2153, 2162, 68 L.Ed.2d 640, 652 (1981) (refusing to hold that due process requires that an indigent person be represented by appointed counsel in every parental termination proceeding). Government employers should not be compelled to release names of complainants in every case simply for the sake of certainty. It may even be that, in most situations, there is little reason to withhold such notice.

But good practice alone is also not sufficient justification for constitutionalization of a requirement. “A wise public policy ... may require that higher standards be adopted than those minimally tolerable under the Constitution.” Lassiter, 452 U.S. at 33, 101 S.Ct. at 2163, 68 L.Ed.2d at 654. Some lower federal courts, in enumerating specific procedural safeguards, have suggested that advance notice of witnesses is invariably required to satisfy due process. See Agarwal v. Regents of the Univ. of Minn., 788 F.2d 504, 508 (8th Cir.1986); Levitt v.

Univ. of Tex., 759 F.2d 1224, 1228 (5th Cir.), cert. denied, 474 U.S. 1034, 106 S.Ct. 599, 88 L.Ed.2d 578 (1985); Ferguson v. Thomas, 430 F.2d 852, 855-56 (5th Cir. 1970); Tolson v. Sheridan School Dist., 703 F.Supp. 766, 772 (E.D.Ark.1988). While we do not quarrel with the particular results reached in any of these cases, we do not agree that due process always requires prehearing notice of witnesses. See, e.g., Wells v. Dallas Indep. School Dist., 793 F.2d 679, 683 (5th Cir.1986).

To read the Constitution as imposing an obligation where none is required is just as surely wrong as to excuse a requirement that is mandated by the Constitution. Cf. Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570, 576 (1975) (“[A] State may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them.”) (emphasis in original). Until the Supreme Court holds that advance notice is always required, we decline to do so.

Under the Mathews balancing test, we conclude that advance notice of adverse witnesses was not required in this case before either the pretermination or post-termination hearing. Accordingly, we reverse the judgment of the court of appeals and affirm the judgment of the trial court upholding Davis’s dismissal. Dissenting opinion by DOGGETT, J., joined by RAY, MAUZY and HIGHTOWER, JJ. . The trial court’s review was under the substantial evidence standard. See Heard v. Incalcater-ra, 702 S.W.2d 272, 275 (Tex.App. — Houston [1st Dist.] 1985, writ ref'd n.r.e.). .

The applicable Civil Service Rules provide that Davis may be dismissed only "for cause,” Rules of Bexar County Sheriffs Civil Service Commission, Rule 2.43 (Mar. 14, 1985), and define what constitutes "cause.” Id., Rule 9.02. A “for cause" limitation on dismissal of a public employee creates an individual entitlement to continued employment that is considered a protected property right for purposes of the Due Process Clause. Logan, 455 U.S. at 430, 102 S.Ct. at 1155, 71 L.Ed.2d at 274. .

The notice to Davis satisfied all statutory and administrative requirements, in effect at the time of his dismissal, none of which required prehearing notice to accused employees of the names of adverse witnesses. However, our inquiry does not end with these standards.

"While the legislature may elect not to confer a property interest ..., it may not constitutionally authorize the deprivation of such an interest, once conferred, without appropriate procedural safeguards.... [T]he adequacy of statutory procedures for deprivation of a statutorily created property interest must be analyzed in constitutional terms.” Vitek v. Jones, 445 U.S. 480, 490 n. 6, 100 S.Ct. 1254, 1262 n. 6, 63 L.Ed.2d 552, 563 n. 6 (1980) (quoting Arnett v. Kennedy, 416 U.S. 134, 167, 94 S.Ct. 1633, 1650-51, 40 L.Ed.2d 15, 40-41 (1974) (Powell, J., concurring in part)).

In the present case, Davis has requested relief under both the state and federal constitutions. However, although Davis points out that the state constitution “can ... provide additional rights for their citizens," LeCroy v. Hanlon, 713 S.W.2d 335, 338-39 (Tex.1986), he does not present any argument that the due course guarantees of the Texas Constitution require different or additional procedural protections in connection with administrative termination hearings than does the Due Process Clause of the federal Constitution.

Therefore, we consider here only whether the relief Davis seeks is required by the federal Constitution. 4. Although the Sheriffs Department does not assert such an interest in this case, a government employer may also have a substantial interest in preserving, pretermination, the confidentiality of sexual harassment complainants to protect them from the accused employee.

If the identities of complainants were revealed while the alleged harasser remained at the workplace, the complainants might be subject to retaliatory action by the accused employee, who often is a superior with significant control over their working conditions. See Subcomm. on Investigations of the House Comm, on Post Office and Civil Service, 96th Cong., 2d Sess., Sexual Harassment in the Federal Government 12, 23 (Comm.Print 1980) (reporting harassment may subject victim to retaliation). For this reason, promising confidentiality may be necessary in order to encourage employees to report harassing behavior.

See BNA Personnel Policies Forum, Sexual Harassment: Employer Policies and Problems 19 (PPF Survey No. 144, 1987) ("an employee may feel that lodging a complaint against senior management could ‘make my life miserable,’ if the complaint is brought out in the open”). Since the government employer must rely upon its employees to report such conduct, the government has a considerable interest in being able to ensure complainants that their identities will remain confidential. . At the time of the hearing, eight women were employed as clerks in the warrant

section where Davis worked. Four of these women testified against Davis at the hearing. . Such government interests are apt to be particularly strong in sexual harassment cases. Some studies have shown that sexual harassment complainants may be subject to harassment, ridicule, or retaliation from other coworkers even after the offending employee has been dismissed and fears of such future harassment may chill reporting.

See Subcomm. on Investigations of the House Comm, on Post Office and Civil Service, 96th Cong., 2d Sess., Sexual Harassment in the Federal Government 13 (Comm.Print 1980) (women are hesitant to file complaints because they may be subject to "embarrassment and harassment from the coworkers of the man against whom they have made the charges, and from other women who feel that the complainants brought it on themselves”). We note, however, that the Sheriff’s Department has not asserted such an interest in this case. .

We do not, of course, endorse the Kafkaesque proceedings "shrouded in mystery” against which the dissenting opinion warns. We hold only that the plaintiff in this case received all the process due him under the United States Constitution. .

In holding that a terminated school district employee did not need the names of witnesses or summaries of their testimony in advance of his post-termination hearing, the Fifth Circuit reasoned that [w]hen an administrative termination hearing is required, federal constitutional due process demands either an opportunity for the person charged to confront the witnesses against him and to hear their testimony or a reasonable substitute for that opportunity.

One who is present, who sees and hears the witnesses against him, has notice of who they are and what they maintain before he must meet them with his case; his confrontation rights are satisfied.... When, as here, the adjudicator acts on the sole basis of testimony produced at a hearing at which the accused is present, then by the time the accused must present his case he has necessarily already heard the witnesses’ names and the substance of their testimony. Wells, 793 F.2d at 683. .

My analysis differs somewhat from that of the court of appeals, which concluded that these names should have been included in the preter-mination "Notice of Proposed Dismissal.” Under the particular circumstances of this case, identification is not constitutionally mandated in the pretermination notice, but need only be furnished at a reasonable point before the post-termination hearing.