There is a public uproar in Minnesota about a Stearns County Deputy having received over $200,000.00 in salary and benefits, while facing 22 felony counts of criminal sexual conduct with minors. Recently his criminal trial was postponed again, and he continues in a paid status, approaching the start of his third year on paid leave.

Deciding to place an employee on paid or unpaid leave while criminal charges are pending, is not a new concept. An often over-looked 1997 U.S. Supreme Court case ruled, a public employee may be placed on unpaid leave while facing felony charges. In Gilbert v. Homar, the Court addressed the issue of a police officer facing criminal drug charges, indicating, “…[t]he State has a significant interest in immediately suspending, when felony charges are filed against them, employees who occupy positions of great public trust and high public visibility, such as police officers…We think that the government does not have to give an employee charged with a felony a paid leave at taxpayer expense.”

The Court identified three distinct factors to consider in their analysis. First, the private interest affected by the official action, (i.e the loss of the deputy’s paycheck); Second, the risk of an erroneous deprivation through the procedures used, (i.e. are the charges legitimate?); And finally, the Government’s interest,(i.e. the taxpayers interests.) I have no knowledge whether the Gilbert case was taken into consideration when Stearns County decided to continue the deputy in a paid status, but there are presently some compelling facts which indicate continuing the deputy in a paid status may not have been necessary. The deputy was in charge of the local Explorer Post, and at least one of the alleged victims was an Explorer Scout. Also, the beyond a reasonable doubt standard necessary to support criminal charges, is substantially higher than the clear and convincing or preponderance standards typically found in an employee discipline case before an arbitrator.

While it is true the Gilbert case involved a short suspension and not the two year time frame in Stearns County, the question remains, after consideration of the factors presented by the Court in the Gilbert case, is it fiscally responsible for a governmental entity to be paying an employee for two years to sit at home.

My law partner previously mentioned the Gilbert case in a blog about a recent arbitration case concerning a teacher facing third degree criminal assault charges. The teacher’s union filed a grievance arguing the teacher should been placed on a paid leave while the criminal charges were pending, not an unpaid leave. The arbitrator did not agree and denied the union’s grievance.

The decision over whether to place an employee on paid or unpaid status while serious felony criminal charges are pending is a difficult one, and should be made only after a careful analysis of all of the facts in light of the Gilbert case. The decision should be intentional, as the cost to the taxpayers can be very high. Unpaid leave is clearly an option that should not be overlooked by employers.