dissenting.
I regret that I must dissent.
As a result of the United States Supreme Court opinion in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), the courts have held that government employees who can only be dismissed for cause have a property or liberty interest in continuing employment, Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Jacobs v. Kunes, 541 F.2d 222 (9th Cir. 1976), and may not be discharged without certain procedures being followed, including, in certain cases, a pretermination hearing. Bishop and Kunes, supra. In determining whether a pretermination hearing is required, we have held that the interest of the employer can sometimes outweigh the requirement for a pretermination hearing provided a prompt and meaningful post-termination hearing is available:
“In balancing the interest of the City of Flagstaff (and the public) in maintaining a loyal and efficient fire department with the interest of the petitioner to a pre-termination hearing, we believe the need of the petitioner to a pre-termination hearing is outweighed by the interest of the City of Flagstaff in the continued efficient operation of its fire department, provided, of course, that a prompt and meaningful post-termination hearing is available on request, [citation omitted] The need to prevent dissension or uproar in the department should allow a suspension or termination without hearing.” City of Flagstaff v. Superior Court, 116 Ariz. 382, 384, 569 P.2d 812, 814 (1977).
In the instant case, Roberts was not in a public safety type position as was the employee fireman in City of Flagstaff, supra, nor involved in public health as was the case in Peacock v. Board of Regents, 510 F.2d 1324 (9th Cir. 1975), cert. denied 422 U.S. 1049, 95 S.Ct. 2668, 45 L.Ed.2d 701 (1975) where the court held that the potential threat to the administration of the University of Arizona College of Medicine by the suspended head of the Department of Surgery outweighed the requirement of a hearing prior to suspension provided, of course, that “a proper post-suspension hearing was available.” It should be noted that in Peacock, the court cautioned
“ * * * that under different circumstances involving a more serious intrusion on a protected property interest, such as the professorship, or on a ‘liberty’ interest, or an employment relationship in which loyalty and cooperation are less imperative, a pre-deprivation hearing may be required.” 510 F.2d at 1330. (Emphasis added)
In the instant case, the need to promptly remove Roberts without a pretermination hearing fades away in light of the actions of the City of Tucson in keeping Roberts on the job from February through 2 May after they had decided to terminate his employment. In balancing the factors to be con*94sidered, City of Flagstaff, supra, I come to the conclusion that a pretermination hearing was required. I would point out in this regard, however, that the pretermination hearing need not be considered a final or conclusive hearing. The hearing would be only to determine if there is cause to immediately terminate the employee and the employee would still be entitled to a full, timely, and meaningful post-termination hearing. As was stated by the United States Eighth Circuit Court of Appeals:
“The need at this stage of proposed dismissal is to minimize the employee’s risk of wrongful termination, not a decision on the merits. That will come later, before the Advisory Board, with the full panoply of adversary confrontation. It is squarely at this point that plaintiff makes a formidable assertion, namely that he has a right to have his say before he is fired, particularly since in this situation the ‘issues of credibility and veracity * * * play a significant role in the decision reached.’ (citation omitted)
“We thus balance the chance of error, mistake, or bias, resulting in the disastrous termination of employment, against the expense, the delay, and the administrative burden of trial with counsel, testimonial presentations, and the right of cross-examination.” Kennedy v. Robb, 547 F.2d 408, 414-15 (8th Cir. 1976).
I believe a careful reading of Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974), relied upon by the majority, actually supports the need for a pretermination hearing in this case. In Arnett, the regulations required that the employer prior to discharge had to furnish the employee a written notice of the proposed discharge action, a copy of the charges with a reasonable period of time for a written answer, and the employer then had to promptly furnish the employee with a decision. It could be argued that with such a procedure no pretermination hearing is necessary at all since the employee receives notice of the reasons for his termination and has a reasonable time in which to make a meaningful response to the charges. The United States Supreme Court in a 3-2-1-3 decision upheld the termination without a pretermination hearing, but Mr. Justice Powell, in writing for himself and Justice Blackmun, made it clear that he agreed with the 3-man majority only because of the prior notice provision of the regulation in question:
“Appellee also argues that the absence of a prior evidentiary hearing increases the possibility of wrongful removal and that delay in conducting a post-termination evidentiary hearing further aggravates his loss. The present statute and regulations, however, already respond to these concerns. The affected employee is provided with 30 days’ advance written notice of the reasons for his proposed discharge and the materials on which the notice is based. He is accorded the right to respond to the charges both orally and in writing, including the submission of affidavits. Upon request, he is entitled to an opportunity to appear personally before the official having the authority to make or recommend the final decision. Although an evidentiary hearing is not held, the employee may make any representations he believes relevant to his case. After removal, the employee receives a full evidentiary hearing, and is awarded backpay if reinstated. See 5 CFR §§ 771.208 and 772.305; 5 U.S.C. § 5596. These procedures minimize the risk of error in the initial removal decision and provide for compensation for the affected employee should that decision eventually prove wrongful, [footnote omitted]
“On balance, I would conclude that a prior evidentiary hearing is not required and that the present statute and regulations comport with due process by providing a reasonable accommodation of the competing interests, [footnote omitted]” Arnett v. Kennedy, 416 U.S. at 170-71, 94 S.Ct. at 1652, 40 L.Ed.2d at 42-3.
Under the facts of this case, I believe Roberts was entitled to a pretermination hearing.