Week 4 - Assignment: Evaluate a Case in Public Personnel Management and Week 5 - Assignment: Recommend an Employee-Friendly Policy

Publichumanresourcemanagement.pdf

Home >Business & Finance homework help >Management homework help >Week 4 - Assignment: Evaluate a Case in Public Personnel Management and Week 5 - Assignment: Recommend an Employee-Friendly Policy

Chapter 2 What Every Public Sector Human Resource Manager Should Know About the Constitution

David H. Rosenbloom American University Joshua Chanin San Diego State University

Constitutional law is central to public human resource management (PHRM) at all levels of American government. Judicial branch interpretation of constitutional law regulates in one way or another merit examinations, recruitment, selection, training, promotions, affirmative action and diversity efforts, drug testing, and disciplinary procedures. These court decisions are not just another concern to be balanced among the many competing pressures that public managers face; they form the basis of our public administration and are central to its operation. Because public administrators take an oath to support the Constitution, the values embodied in constitutional law decisions are ethical and normative guides for the exercise of administrative discretion (Rohr 1978, 1986). If individual administrators or local governmental agencies violate the constitutional rights of applicants or employees, they are subject to legal action and may be held liable for monetary damages. Consequently, public human resource managers are expected to maintain a sophisticated knowledge of constitutional law. This chapter explains the basic structure underlying current constitutional doctrine and reviews the leading cases in the areas of greatest concern to today’s PHRM. The following eight sections will rely on an up-to-date survey of relevant case law to familiarize those interested in PHRM with the application of the U.S. Constitution’s First, Fourth, Fifth, and Fourteenth Amendments to public employment; as well as with the structure of public administrators’ potential liability for constitutional torts arising out of breaches of their subordinates’ or others’ constitutional rights. The chapter concludes with a brief summary of these constitutional concepts and a few examples of the critical role constitutional law plays in maintaining the integrity of our public administration.

Constitutional Doctrine

Constitutional law has not always been central to the operation of our public administrative agencies. As surprising as it may seem, prior to the 1950s public employees in the United States had very few federally protected constitutional rights, and even less of an ability to assert these rights effectively within the framework of their employment. These public positions were governed by the “doctrine of privilege,” a constitutional reasoning that held that because public employment was a privilege rather than a right, it could be offered on almost any terms the governmental employer saw fit, no matter how arbitrary. Not having a right to a position in the public service, the employee, upon dismissal, lost nothing to which he or she was entitled. As Justice Oliver Wendell Holmes made clear in an early case establishing the constitutionality of disciplining public employees for the content of their speech, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman” ( 1892: 220).McAuliffe v. New Bedford Under this approach, the Constitution failed to provide public employees and applicants with the very basic protections enjoyed by private citizens.

Although the doctrine of privilege had a certain logic, it also ignored the realities of citizens’ interactions with government in the modern administrative state. If the Constitution did not protect public employees and applicants fired or denied jobs for virtually any reason, would not the same principle apply to other kinds of privileges, such as welfare benefits, government contracts, passports, public housing, drivers’ licenses, and so forth? Could those be denied, as public employment sometimes was, partly because the individual favored racial integration, read Tom Paine or , failed to attend church services, or engaged in aThe New York Times host of nonconformist and unconventional activities (Rosenbloom 2014: 119–122)? To the extent that “big government” creates a dependency of the people on government benefits, which were considered privileges, strict adherence to the doctrine of privilege would enable government to attach conditions to their receipt that

Co py ri gh t © 2 01 6. C Q

Pr es s. A ll r ig ht s re se rv ed . Ma y no t be r ep ro du ce d in a ny f or m wi th ou t pe rm is si on f ro m th e pu bl is he r, e xc ep t fa ir u se s pe rm it te d un de r U. S. o r ap pl ic ab le c op yr ig ht

la w.

EBSCO Publishing : eBook Collection (EBSCOhost) - printed on 2/19/2022 5:48 PM via NORTHCENTRAL UNIVERSITY AN: 1945908 ; Richard C. Kearney, Jerrell D. Coggburn.; Public Human Resource Management : Problems and Prospects Account: s1229530

could undermine recipients’ constitutional rights. For instance, eligibility for unemployment benefits could require one to be willing to work on Saturday in violation of her constitutional right to free exercise of religion ( 1963).Sherbert v. Verner

Notwithstanding a variety of twists and turns in the development of case law since the 1950s, the courts eventually developed an alternative method for analyzing the constitutional rights of public employees. The fundamental underlying premise is that “the government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign [dealing with citizens] to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate” (Waters v. Churchill 1994: 675). The contemporary approach, generally termed the “public service model,” calls on judges to balance four often competing concerns: (1) the public employee’s or applicant’s interests as a member of the political community in exercising constitutional rights and enjoying constitutional protection from arbitrary, discriminatory, or repressive treatment by the governmental employer; (2) the government’s interest as an employer in having an efficient and effective workforce; (3) the public’s interest in the operation of public administration and government more generally; and (4) the judiciary’s interest in avoiding undue involvement in day-to-day PHRM decisions ( 1984; 2006;Harvard Law Review Garcetti v. Ceballos Rosenbloom 2014: 149–152).

Importantly, depending on the specific circumstances, the public’s interest can coincide with either that of the employee or the government. For instance, the public shares a strong interest in robust First Amendment protection of whistle-blowers who alert the media to gross governmental mismanagement or government-created or -abetted dangers to the community’s health or safety. Conversely, the government and the public share an interest in having very limited constitutional constraints on the dismissal of inefficient, dishonest, or unreliable civil servants. It is important to note that under the public service model all public employees can assert some of the rights they have as citizens or legal residents against their governmental employers. Consequently, the term is a misnomer in the public sector. It refers toat-will employment employees who lack a property right or interest in their positions (e.g., those who lack civil service protections against arbitrary treatment). Such employees have no constitutional procedural due process protections against dismissals or other adverse actions for ordinary work-related causes, such as inefficiency or insubordination. However, due process also applies to liberty interests and public employees retain First, Fourth, Fifth, and Fourteenth Amendment rights to some degree of freedom of speech, association, and exercise of religion, privacy, and equal protection of the laws.

Despite its imperfections, the public service model is certainly an advance over less complicated approaches such as the doctrine of privilege. However, because this approach requires a subjective and often elaborate balancing of the interest of employees, government, and the public, reasonable judges and human resource managers will often disagree on what the Constitution requires in specific circumstances. Judicial decision making under the public service model not only has the potential to cause disagreement; it can also generate constitutional decisions that are difficult to follow and apply to specific personnel decisions. As then Supreme Court Justice, and later Chief Justice, William Rehnquist noted:

This customary “balancing” inquiry conducted by the Court . . . reaches a result that is quite unobjectionable, but it seems to me that it is devoid of any principles which will either instruct or endure. The balance is simply an ad hoc weighing which depends to a great extent upon how the Court subjectively views the underlying interests at stake. ( 1985:Cleveland Board of Education v. Loudermill 562)

Rehnquist was specifically addressing procedural due process issues involved in the dismissal of a municipal employee. Much the same can be said of judicial decision making regarding free speech and other areas under the public service model, as is demonstrated by the following review of the contemporaryC

op yr ig ht ©

2 01 6. C Q

la w.

constitutional law of public personnel.

Freedom of Speech

Rankin v. McPherson (1987) outlines the current approach for analyzing public employees’ constitutional rights to nonpartisan free speech. Ardith McPherson was a nineteen-year-old probationary clerk in the office of Constable Rankin in Texas. While talking with a coworker (who was apparently also her boyfriend) shortly after the assassination attempt on President Ronald Reagan, she remarked, “Shoot, if they go for him again, I hope they get him” (322). Another office employee overheard her remark and reported it to Constable Rankin, who fired McPherson after she admitted making the comment. Believing that the dismissal violated her right to free speech under the First and Fourteenth Amendments,1 McPherson sued for reinstatement, back pay, and other relief. In analyzing the case, the Supreme Court’s majority noted that “even though McPherson was merely a probationary employee, and even if she could have been discharged for any reason or for no reason at all, she may nonetheless be entitled to reinstatement if she was discharged for exercising her constitutional right to freedom of expression” (324). This is an example of why so-called at-will employment is an inapt term in contemporary PHRM.

The Court went on to explain the logical structure of public employees’ right to free speech, beginning with whether the employee’s remark touched on a matter of public concern (that is, of potential interest to the public). If a remark relates to a matter of public concern, it is considered of value to the public’s informed discussion of government and public policy. Such comments are part of the free marketplace of ideas that is vital to the operation of our constitutional democracy. By contrast, statements of purely private concern, such as what one employee thinks of another’s personality, intelligence, or clothes, are afforded minimal (if any) protection when they interfere with the proper functioning of government offices.

In , a 5–4 majority concluded that McPherson’s remark touched upon a matter of public concern. ItRankin had been made in the context of a discussion of Reagan’s policies, and McPherson, an African American, apparently offered it as a way of punctuating her disdain for the administration’s approach to minorities.2 Next, upon determining that McPherson’s comment touched on a matter of public concern, the Court proceeded with the balancing required by the public service model. When weighing the government’s interest in discharging an employee for statements that somehow undermine the mission of the public employer, courts must consider the responsibilities of the employee within the agency. An employee’s burden of caution and responsibility for the words he or she speaks will vary with the extent of authority and interaction with and accountability to the public that the employee’s role entails. Where, as in McPherson’s case, “an employee serves no confidential, policymaking, or public contact role,” the potential harm to the public office due to that employee’s private speech is minimal and is outweighed by the employee’s First Amendment rights (328).

Public employees’ free speech protections include a right to “whistle-blow,” which generally involves alerting elected officials or the public to gross waste, fraud, abuse, mismanagement, or specific government-created or abetted dangers to the health, security, or safety of the community. The Supreme Court has reasoned that due to their positions inside government, public employees are sometimes uniquely able to contribute to the “free and open debate, which is vital to informed decision-making by the electorate” and “accordingly it is essential that they be able to speak out freely without fear of retaliatory dismissal” (

1968: 571–572).Pickering v. Board of Education

A public employee’s First Amendment protection for whistle-blowing and speaking out about their agencies’ decision making and performance was narrowed by the Court’s decision in (2006).Garcetti v. Ceballos There, the Court held that the First Amendment does not protect public employees’ speech made pursuant to their professional duties, regardless of whether the content of the remarks is deemed a matter of public concern. In the 5–4 holding, the Court’s conservative majority conjured up the doctrine of privilegeGarcetti in determining that “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simplyC

op yr ig ht ©

2 01 6. C Q

la w.

reflects the exercise of employer control over what the employer itself has commissioned or created” ( 2006: 421–422). In short, a public employee’s expression as part of his or her Garcetti v. Ceballos work

does not enjoy First Amendment protection.3product

The Court’s majority opinion in drew a confusing distinction between the rights of individuals asGarcetti public employees and as citizens: “refusing to recognize First Amendment claims based on government employees’ work product does not prevent them from participating in public debate. The employees retain the prospect of constitutional protection for their contributions to the civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit” (Garcetti v.

2006: 422). This seems to suggest that whistle-blowers have more constitutional protection in theirCeballos role as private citizens than they do as public employees. In other words, an employee garners more First Amendment protection if he or she raises a concern through external channels such as the media rather than through the professional chain of command or other internal channels established to protect whistle-blowers. Furthermore, rather than relying on the First Amendment to shield them from retaliatory action, the Court urged public employees who whistle-blow to familiarize themselves with and rely on protective statutes, such as the federal Civil Service Reform Act of 1978, as well as relevant state and local statutory provisions. If a statement is covered by the terms of such statutes, it is automatically considered a matter of public concern and the government is prohibited from retaliating, regardless of how disruptive the comments may be.

In (2014: 2), the Court attempted to further clarify the holding by drawing aLane v. Franks Garcetti distinction between work product speech and “speech [on a matter of public concern] that simply relates to public employment or concerns information learned in the course of public employment,” which continues to enjoy constitutional protection. In practice, however, distinguishing between speech that is part of a work assignment and speech resulting from something learned on the job is sometimes likely to be difficult. Consequently, public sector human resource managers should be cautious in applying the and Garcetti

rulings.Franks

Public employees’ constitutional right to free speech does not extend to partisan management or campaigning. In the Supreme Court’s view, the governmental interests in workplace efficiency and the appearance of partisan neutrality outweigh the damage that governmental restrictions on political activity do to public employees’ rights. Such measures also protect civil servants from being coerced by elected and politically appointed officials to support parties and candidates ( 1947; United Public Workers v. Mitchell

1973). The Court has given wide berthCivil Service Commission v. National Association of Letter Carriers to governmental employers in this policy area by allowing considerable flexibility in the drafting of restrictions ( 1973).Broadrick v. Oklahoma

Of course, the fact that political neutrality regulations are apt to be constitutional does not mean that governments will choose to impose them. The trend has been away from comprehensive restrictions on public employees’ participation in partisan activities. For example, the 1993 Federal Hatch Act reform modified a variety of restrictions, some of which reached back to the early 1900s (see Rosenbloom 1971: 94–110). The Hatch Act reforms allow most federal employees to distribute partisan campaign literature, make speeches, hold offices in political organizations, stuff envelopes with campaign literature, make phone calls as part of a partisan political campaign, and solicit votes (though not funds). The amended law does not extend to members of the Senior Executive Service, however, and exempts some agencies, including the Merit Systems Protection Board, and positions, such as Administrative Law Judge, on grounds that overt partisanship would undermine their missions or functions. The Hatch Act Modernization Act of 2012 reduced restrictions on state and local employees’ right to run for partisan office and exempted District of Columbia employees from many of the Hatch Act restrictions previously applying to them. The federal Office of Special Counsel receives complaints of violations of the Hatch Act and provides advisory opinions on its application.

Can whistle-blowing and related speech on matters of public concern always be distinguished from partisan expression? The answer is clearly no, but the Supreme Court has yet to be confronted with the need to create a legal distinction between them. In terms of PHRM, therefore, some uncertainty remains in this area,

Co py ri gh t © 2 01 6. C Q

la w.

especially during electoral campaign periods.

Applying the public service model to employees’ speech can sometimes be further complicated by disputes over the exact content of the remarks at issue. In cases where the interpretations of speakers and bystanders differ, the public employer is permitted to act on what it reasonably believes was said, even in the absence of substantial evidence. The Supreme Court case law requires merely that the employer take reasonable steps to find out what the employee may actually have said. However, the Court’s guidance in this area has been exceptionally vague: “only procedures outside the range of what a reasonable manager would use may be condemned as unreasonable” ( 1994: 678).Waters v. Churchill

It is clear that the Supreme Court has given public human resource administrators much to think about regarding the scope of public employees’ constitutionally protected speech. In sum, the following must be considered: What did the employee actually say? Were the remarks on a matter of public concern? Were they made pursuant to an employee’s official duties as opposed to being based on something that he or she may have learned on the job? What was the specific context in which they were uttered? What is the nature of the employee’s position with reference to confidentiality, policy making, and public contact? What is the relative value of the remarks to the public discourse? How great are the remarks’ potential for disruption? To these factors must be added others from earlier case law, including whether the speech involves prohibited political partisanship, suggests disloyalty to the United States, or is so without foundation that the employee’s basic competence is called into question. Under the circumstances, it is not surprising that the Supreme Court admits, “competent decision-makers may reasonably disagree about the merits of a public employee’s First Amendment claim” ( 1983: note 7).Bush v. Lucas

Freedom of Association

The contemporary constitutional law regarding public employees’ First Amendment right of freedom of association is also central to some aspects of PHRM. In general, public employees’ right to join organizations voluntarily (including political parties, labor unions, and even extremist racist and other antisocial groups) is well established, as is their right to refrain from associating with or supporting organizations (AFSCME v.

1969; 1966; 1960 1976; Woodward Elfbrandt v. Russell Shelton v. Tucker ; Elrod v. Burns Abood v. Detroit 1977). However, two areas of PHRM that have been specifically “constitutionalized” inBoard of Education

this context should be noted.

First, it is possible for union security agreements to violate public employees’ constitutionally protected freedom not to associate; no public employee can be required to join a union as a condition of holding his or her job. However, an agency shop is permitted: This arrangement requires nonunion members to pay a “counterpart” or “fair share” fee to the union that represents their collective bargaining unit. In Abood v.

(1977) the Supreme Court “rejected the claim that it was unconstitutional for aDetroit Board of Education public employer to designate a union as the exclusive collective-bargaining representative of its employees, and to require nonunion employees . . . to pay a fair share of the union’s cost of negotiating and administering a collective bargaining agreement” ( 1986: 243–244). But the Court alsoChicago Teachers Union v. Hudson held that “nonunion employees do have a constitutional right to ‘prevent the Union’s spending a part of their required service fees to contribute to political candidates and to express political views unrelated to its duties as an exclusive bargaining representative’” ( 1986: 244).Chicago Teachers Union v. Hudson

Certain procedural safeguards accompany a public employee’s First Amendment protection against being compelled to underwrite a union’s political agenda. In the Supreme Court’s words, “the constitutional requirements for the Union’s collection of agency fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decision maker, and an escrow account for the amounts reasonably in dispute while such challenges are pending” (Chicago

1986: 249). In (2012), theTeachers Union v. Hudson Knox v. Service Employees International Union Supreme Court added the requirement that “when a public-sector union imposes a special assessment or dues increase,” as opposed to annual dues, “the union must provide a fresh . . . notice [to nonmembers in theC

op yr ig ht ©

2 01 6. C Q

la w.

bargaining unit] and may not exact any funds from nonmembers without affirmative consent” (Knox v. 2012: 22). In other words, with special assessments and increases, theService Employees International Union

nonmember employees must have the opportunity to before the union can deduct funds from theiropt in paychecks rather than to opt out afterward. strengthens public employees’ First Amendment right not toKnox be compelled to support causes that they oppose. Undoubtedly, though, it will make it more difficult for unions to raise funds to oppose unforeseen political initiatives, such as efforts to reduce public employees’ compensation to limit state or local governmental budgetary shortfalls.

Second, beginning with its holding in (1976), the Court began to establish substantialElrod v. Burns constitutional barriers to the use of political partisanship in public personnel decisions. was triggeredElrod when the newly elected sheriff of Cook County, Illinois, fired or threatened to dismiss sheriff’s office employees who were not members of or sponsored by the Democratic Party. The employees bringing the suit were all Republicans holding non-civil service positions and had no statutory or administrative protection against arbitrary discharge. The Court held for the first time that patronage dismissals could violate public employees’ freedom of association and belief. However, it was divided and unable to form a majority opinion on the standard that the government must meet when dismissing someone based on partisan affiliation.

Four years later, in (1980), the Court revisited the issue of patronage dismissals. TwoBranti v. Finkel employees of the Rockland County, New York, Public Defenders Office were dismissed solely due to their affiliation with the Republican Party. The Court’s majority now agreed that “the ultimate inquiry is not whether the label ‘policy maker’ or ‘confidential’ fits a particular position; rather, the question is whether hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved” (518). This standard places a heavy burden of persuasion on elected officials and political appointees who would dismiss employees based on their partisan affiliation.

The next patronage case to reach the Supreme Court was (1990). TheRutan v. Republican Party of Illinois governor of Illinois ordered a hiring freeze prohibiting state officials from filling vacancies, creating new positions, or recalling furloughed employees without his “express permission.” About 5,000 positions became open annually and several employees who were denied promotions, transfers, or recalls charged that the governor was “operating a political patronage system” by granting permission to fill openings only with employees having “Republican credentials” (62, 67). The Court held that “the rule of and Elrod Branti extends to promotion, transfer, recall, and hiring decisions based on party affiliation and support” (79). Accordingly, for most intents and purposes, partisanship is an unconstitutional justification for taking public personnel actions.

In reaching these decisions regarding public employees’ freedom of association, the Supreme Court considered the various claims that union security arrangements strengthen labor-management relations and that patronage promotes democracy and loyalty to elected officials, as well as governmental efficiency. However, using the public service model, the Court concluded that these interests could be secured by means that were less invasive of public employees’ First Amendment rights. The patronage cases illustrate that constitutional law is forever changing and that even “a practice as old as the Republic” may eventually succumb to new constitutional thinking ( 1976: 376).Elrod v. Burns

Privacy

The Fourth Amendment affords protection to private individuals against “unreasonable” government searches and seizures. Traditionally, courts have addressed Fourth Amendment issues in the criminal justice context. During the 1980s, however, as drug testing became common practice, the scope of the amendment’s application to public employees emerged as an important issue in PHRM. In law enforcement cases, the amendment requires that searches and seizures be pursuant to warrants, or, where these are impracticable, probable cause (reasonable suspicion that an individual is engaged in criminal wrongdoing). In applying the public service model, courts have construed the Fourth Amendment to permit government employers to meet a much lower standard to justify administrative (non-law enforcement) searches. Consistent with the publicC

op yr ig ht ©

2 01 6. C Q

la w.

service model, this lower threshold both manifests and facilitates the government’s significant interest in the performance of its employees and the efficiency of its agencies.

In (1987), a divided Supreme Court held that “individuals do not lose FourthO’Connor v. Ortega Amendment rights [against unreasonable government searches and seizures] merely because they work for the government instead of a private employer” (723). The justices also agreed that the relevant threshold question is whether the employee has a reasonable expectation of privacy in the workplace. Such an expectation is defined as one that, according to the courts, society is prepared to share. If there is no reasonable expectation of privacy, then the search will not violate the Fourth Amendment. If there is such an expectation, then the search must be reasonable in its inception and scope. In practice, this approach often requires that judges analyze cases individually on their own merits rather than according to broad principles.

requires that workplace searches of offices, desks, files, and so forth be based on a reasonable O’Connor suspicion that an employee may have engaged in behavior for which discipline would be appropriate.

In (2010), the Supreme Court extended ’s logic to the “electronic sphere”City of Ontario v. Quon O’Connor (760). The extent to which a governmental employer can obviate its employees’ Fourth Amendment protections against administrative searches through policy statements regarding expectations of privacy remains uncertain. In , Ontario’s “Computer Policy stated that ‘[u]sers should have no expectation ofQuon privacy or confidentiality when using’ City computers” (758). Whether that policy extended to Quon’s text messaging was in dispute. However, the Court held that even if Quon had a reasonable expectation in his texting, the City’s search of his messages was reasonable in its inception and scope because “a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether . . . pager[s] [were] being appropriately used” (762). While ruling against based onQuon the specific facts of the case, the Court left open the issue of when, if ever, public employees might have a reasonable expectation of privacy in their use of government owned computers, pagers, and other electronic devices because “[a] broad holding concerning employees’ privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted” (760).

The Supreme Court has also held that in certain cases where the “special needs” of the government outweigh the privacy rights of individuals, public employers may conduct warrantless searches, even in the absence of a reasonable suspicion that an employee has engaged in wrongdoing. In most of these situations, the government’s interests (as well as the public’s) are asserted through suspicionless drug-testing programs, which randomly test certain public employees, regardless of whether there is a reasonable basis for believing that any of these employees use illegal drugs. For example, in Skinner v. Railway Labor Executives

(1989), the Court held that the Federal Railroad Administration (FRA) may subject certainAssociation railroad employees, although working for private corporations, to random, suspicionless blood and urine tests for the presence of drugs or alcohol. The Court reasoned that the government’s legitimate interest in protecting its citizens from railroad employees under the influence of alcohol or drugs significantly outweighed the Fourth Amendment privacy interests of the employees. In National Treasury Employees

(1989), the Court extended this rationale to those public employees who carry firearms orUnion v. Von Raab are engaged in drug interdiction. Accordingly, the Court noted that such employees have a reduced expectation of privacy “by virtue of the special, and obvious, physical and ethical demands of those positions” (711). HIV and other health-related testing programs present similar legal issues. In this context, blood- and urine-testing regimes must be reasonable in terms of purpose and procedure. However, as such practices become more common it is increasingly difficult for employees and applicants to claim that they violate a reasonable expectation of privacy (see, e.g., 1989).Fowler v. New York

Further, anyone engaged in law enforcement, public safety, and national security positions can be subjected to a reasonably designed suspicionless drug-testing program. Public human resource managers should remember that such testing programs are only for administrative objectives, such as greater cost-effectiveness, safety, health, and productivity. Searches for potential criminal punishment require warrants or probable cause, without which evidence generated by them usually may not be used as a basis for prosecution.

Co py ri gh t © 2 01 6. C Q

la w.

Liberty

The broad issue of public employees’ constitutional liberty has also been the subject of significant litigation. This area of jurisprudence, called , focuses on the meaning of the word in thesubstantive due process liberty Fifth and Fourteenth Amendments, which respectively prohibit the federal government and states (and their political subunits) from depriving anyone within their jurisdictions of life, liberty, or property without due process of law. Courts have interpreted the due process clause to include those fundamental rights that are “implicit in ordered liberty” and are “deeply rooted” in our society’s history and traditions. Many of these rights, including, for example, the right to use contraception or the right to travel, are not mentioned explicitly in the text of the Constitution.

It is common, even natural, for government employers to exercise control over public employees, particularly where matters of public policy, workplace efficiency, and employee morale are concerned. To this end, Senator Sam Ervin found that in the 1960s public employees were requested “to lobby in local city councils for fair housing ordinances, to go out and make speeches on any number of subjects, to supply flower and grass seed for beautification projects, and to paint other people’s houses” (United States Senate 1967: 9). Today, it is more common for federal employers to pressure employees to participate in blood drives, charitable campaigns, and similar programs. A court will deem such conditions unconstitutional only if they are found to violate an employee’s fundamental rights, or if the court determines the conditions to be nothing more than tenuously connected to the interests of the government (see United States v. National Treasury

1995). The liberty interests of public employees have the potential to affect governmentEmployees Union employment practices, but to date have not done so significantly. Public employees’ reproductive decisions are an exception; their grooming preferences and residency requirements illustrate the general tendency.

Cleveland Board of Education v. LaFleur (1974) focused on the constitutionality of a policy requiring mandatory, unpaid maternity leave for public school teachers. The Court found the mandatory leave policy unconstitutionally restrictive, but used language broad enough to provide protection for public employees’ reproductive choices. The Court stated that it “has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment” and that “there is a right ‘to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child’” (639).

In the Court’s view, the liberty to bear children must remain free of undue or purposeless governmental interference. Choices with regard to grooming and residence have been given lesser protection. In Kelley v.

(1976) the Court found no constitutional barrier to grooming regulations applying to male policeJohnson officers. Although a lower court held that “choice of personal appearance is an ingredient of an individual’s personal liberty” (241), the Supreme Court placed the burden of persuasion on the employee challenging the regulation to “demonstrate that there is no rational connection between the regulation . . . and the promotion of safety of persons and property” (247). The challengers were unable to do this despite the government’s questionable rationale: The government claimed that the grooming standards would make the police more readily identifiable to the public (ignoring, apparently, that police officers wear uniforms) and that they would promote esprit de corps, despite the police union’s vehement opposition to them.

Finally, in (1976), the Court upheld the constitutionalityMcCarthy v. Philadelphia Civil Service Commission of residency requirements for firefighters. It did so without much discussion and in the face of petitioner McCarthy’s rather compelling concern for the well-being of his family. The decision remains good law and, consequently, public employees can be required to live within the jurisdictions in which they work or a specified distance from it. Though these issues are not frequently litigated and are no longer capturing headlines, the principles are still very much alive in current constitutional jurisprudence; public sector human resource managers should understand and follow the law established in this line of cases.

Equal ProtectionCop yr ig ht ©

2 01 6. C Q

la w.

1. 2.

Contemporary equal protection analysis under the Fourteenth and Fifth Amendments is of critical importance to PHRM. Equal protection doctrine regulates government affirmative action policies, procedures having a disparate impact on different social groups, and overt discrimination against individuals based on race, ethnicity, citizenship, gender, age, and other factors. The threshold question in an equal protection inquiry is whether a law, policy, decision, custom, or practice classifies individuals according to some characteristic such as race, gender, wealth, residency, or education. Such categorizations—either explicit or implicit—must be present in order to justify an equal protection challenge.

What distinguishes an actual classification, such as one created by law, from practices that are ostensibly neutral but have a disparate impact on different categories of people, such as racial groups or males and females? The Court addressed that difference in (1976), a case in which unsuccessfulWashington v. Davis candidates for the Washington, DC, police academy sued on grounds that the department’s use of an exam testing verbal skills, which African Americans failed disproportionally, amounted to a racially discriminatory hiring practice. In finding for the police department, the Supreme Court made clear that public human resource practices that appear neutral on their face but bear more harshly on one racial group than another, as has often been the case with merit examinations, will not be unconstitutional simply because of their disparate impact. To violate the equal protection clause, public practices must manifest a discriminatory purpose of some kind. The Court emphasized that such a purpose need not be “express or appear on the face of the statute” and made clear that it could be “inferred from the totality of the relevant facts” (Washington v.

1976: 241–242). Such implicit classifications are treated identically to explicit ones. Once they haveDavis determined that a classification exists, courts rely on a three-tiered structure to determine its constitutionality. What follows is a brief description of this framework, with a particular focus on the application of each tier in the context of PHRM.

Suspect Classifications

Courts consider legal classifications based on race or ethnicity as “suspect,” or highly likely to violate equal protection principles. These suspect classifications, historically employed to disadvantage members of minority groups, can be very difficult for governments to justify. Reviewing courts subject laws that create suspect classifications to “strict scrutiny,” the most intense and exacting form of judicial review. In these cases, the government will bear a heavy burden of persuasion and receive little if any deference. Courts deem suspect classifications constitutional only if they are found to serve a compelling governmental interest and are “narrowly tailored” to achieve that purpose. To date, workforce diversity has not been considered a compelling governmental interest by the Supreme Court.4 Affirmative action for members of minority groups may be viable if its purpose is to remedy past, proven discrimination against racial or ethnic groups. The leading case in this area is (1987), in which a federal judge imposed hiring andUnited States v. Paradise promotion quotas for African Americans in the Alabama Department of Public Safety. The case so divided the Supreme Court that it was unable to form a majority opinion. Nevertheless, most of the justices agreed that the remedy was a constitutional means to overcoming decades of discrimination and resistance to equal protection in the Alabama state patrol. A majority also agreed that the relief was adequately narrowly tailored.

In the public personnel context, narrow tailoring requires that five conditions be met:

Less drastic and equally efficacious remedies, such as fines, are impractical or unavailable. There must be a fixed stopping point at which use of the classification ends. This may be based on time, for example, three to five years, or successful remediation of the previous violation of equal protection, such as minorities having gained 25 % of the positions the governmental workforce involved. The quotas, goals, or targets must be proportionate to the racial and/or ethnic composition of the relevant population or workforce base. For example, a 25 % quota for African Americans would be disproportionate in Vermont, but not in Alabama. Waivers must be available so that if the agency is unable to find qualified candidates then it will not be

Co py ri gh t © 2 01 6. C Q

la w.

5. forced to hire or promote incompetents, on the one hand, or remain understaffed, on the other. The approach cannot place a harsh burden on “innocent third parties.” The general principle is that those employees to whom the classification does not apply (e.g., non-minorities) should not be made objectively worse off by the government’s efforts to promote inclusion and diversity, as in affirmative action. Consequently, firing or furloughing nonminorities to free up positions for minorities is considered a harsh burden, whereas not providing training to nonminorities, which reduces their opportunities for advancement but does change their rank, pay, or other working conditions, is not (see

1986; 1979).Wygant v. Jackson Board of Education United Steel Workers of America v. Weber

In (2003), dealing with affirmative action for applicants to the University of MichiganGrutter v. Bollinger Law School, the Court added a sixth condition that logically applies in the public personnel context as well: that each candidate be afforded an individualized assessment of his or her qualifications.

It is important to note that racial and ethnic classifications are considered suspect even if their purpose is to enhance minority employment opportunities. At various times since the 1970s, when the Supreme Court began hearing affirmative action cases, efforts have been made to distinguish between classifications based on “invidious discrimination” and those that are deemed “benign,” or intended to promote the employment interests of minorities and women. In (1995), a 5–4 majority of the SupremeAdarand Constructors v. Pena Court deviated from previous Court jurisprudence and defied considerable academic and pundit commentary suggesting that benign racial or ethnic classifications pose little threat to equal protection because they lack a discriminatory purpose. The Court held that “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny” (227). In the majority’s view, requiring such scrutiny is the only way to ensure that there is no intent to discriminate, or if there is one, it is somehow justified by a compelling governmental interest and is narrowly tailored.5 In a concurring opinion, Justice Clarence Thomas took pains to explain that, in his view, the entire distinction between invidious and benign was untenable and irrelevant: “government-sponsored racial discrimination based on benign prejudice is just as noxious as discrimination inspired by malicious prejudice. In each instance, it is racial discrimination, plain and simple” (241). In (2005), a case involvingJohnson v. California prison administration, the Supreme Court held that racial classifications purported to be neutral rather than invidious or benign are also subject to strict scrutiny.

Quasi-Suspect Classifications

Classifications based on biological sex are “quasi-suspect” and subject to an intermediate level of scrutiny. In these cases, the burden of proof is on the government to show that the classification is substantially related to the achievement of important governmental objectives. Originally, courts considered these classifications nonsuspect and evaluated them using a much less rigorous standard of review. As society and the judiciary became more conscious of the discriminatory effects of efforts to “protect” women from long working hours, physically demanding jobs, participating on juries in cases involving depravity, and so on, these classifications were raised to an intermediate level. In practice, courts evaluate sex-based classifications using a standard comparable to that of a strict scrutiny review, requiring governments to provide an “exceedingly persuasive justification” for their use ( 1996: 533). Intermediate scrutiny poses aUnited States v. Virginia challenge to government employment practices based on traditional thinking about “male” and “female” jobs, workplace behavior, physical strength, and other capacities. Practices based on outdated perceptions of gender roles may be vulnerable to constitutional challenge. Although it is currently easier in a technical sense to justify affirmative action for women than for racial or ethnic minorities because classifications based on biological sex do not receive strict scrutiny, public sector human resource managers should be alert to the likelihood that such programs will be unconstitutional in the absence of a very strong governmental interest.

Nonsuspect Classifications

The federal courts consider classifications based on residency, wealth, age, education, and similar factors toCo py ri gh t © 2 01 6. C Q

la w.

be nonsuspect. Public policies use such classifications frequently and for a variety of reasons—eligibility for benefits of some kind such as social security, voting, drivers’ licenses, and so forth. Judges subject these classifications to a lower level of scrutiny through what has become known as the “rational basis” test. The burden of persuasion is generally on the challenger to show that such classifications are not rationally related to the achievement of a legitimate governmental purpose. Courts typically grant a great amount of deference to the judgment of lawmakers and governmental employers in such cases. For instance, the Supreme Court found a rational connection between the state’s interest in public safety and its policy requiring police officers to retire at age fifty. No equal protection violation was found, despite the fact that many officers would be physically and mentally fit to continue in their jobs well beyond age fifty (Massachusetts Board of

1976). At present, classifications based on sexual orientation are nonsuspect. However,Retirement v. Murgia as with other nonsuspect classifications, they must serve a legitimate governmental purpose.

Procedural Due Process

In addition to their substantive aspects, the due process clauses of the Fifth and Fourteenth Amendments guarantee certain procedural rights to individuals being deprived of life, liberty, or property by the federal or a state or local government. In determining the extent of procedural due process to be afforded in administrative matters, courts balance three factors: (1) the individual’s interests at stake; (2) the risk that the procedures used, if any, will result in an erroneous decision, and the probable value of additional procedures in reducing the likelihood of error; and (3) the government’s interests, including administrative burdens and financial costs, in using the procedures in place. The underlying assumption in this formula is that although additional procedures will generally reduce mistakes, they also add costs. For example, the high cost of guaranteeing a full-fledged adjudicatory hearing, which includes the right to witness confrontation, cross-examination, and legal representation, might be considered necessary in cases where the interest at stake is substantial enough to require a very low error rate. Conversely, where an individual’s interest is minimal, the government may be required to provide nothing more than notice of the decision-maker’s rationale and an opportunity to challenge the decision in writing. Cases involving the rights of public employees illustrate that procedural due process balancing takes place within the framework of the public service model.

In (1972), the Supreme Court identified four individual interests that would giveBoard of Regents v. Roth public employees a right to a full hearing in dismissals: (1) where the dismissal was in retaliation for the exercise of constitutionally protected rights, such as freedom of speech; (2) “where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him” (573); (3) where the dismissal diminishes a public employee’s future employability; and (4) where the employee has a property right or property interest in the position, such as tenure or a contract.

The public service model is important in determining both the timing and the nature of the hearing. In (1985), the Supreme Court held that a security guard whoCleveland Board of Education v. Loudermill

allegedly lied on his application was entitled to notice of the allegations, an explanation of the employer’s evidence, and an opportunity to respond—all prior to being terminated. The Court noted that hadLoudermill a property right in his job by virtue of being a “classified civil servant.” The pretermination requirement is an “initial check against mistaken decisions—essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action” (545–546). This serves the interests of the employee as well as those of the public and the government. In cases involving employment terminations, such as those at issue in and , a preterminationRoth Loudermill hearing frequently helps the state avoid additional personnel costs caused by unnecessary turnover and complex posttermination litigation.

A court’s procedural due process balancing changes when employee suspensions are at issue. In Gilbert v. (1997), the Supreme Court reasoned that no due process was required prior to suspending a lawHomar

enforcement officer who had been charged with a felony. In this case, the governmental and public interests in an effective workforce outweighed those of the employee. As the Court explained, “So long as a

Co py ri gh t © 2 01 6. C Q

la w.

suspended employee receives a sufficiently prompt post-suspension hearing, the lost income is relatively insubstantial, and fringe benefits such as health and life insurance are often not affected at all” (932). The Court also noted that the government has reasonable grounds for suspending an employee who has been formally charged with criminal behavior.

An adverse action triggering procedural due process protections may be based on a mix of factors, some of which involve constitutional rights and others that do not. For instance, an employer may also consider an employee who has engaged in controversial speech to be incompetent or disruptive for reasons unrelated to his or her remarks. In such a case, the employer will have the opportunity to demonstrate “by a preponderance of the evidence that it would have reached the same decision . . . even in the absence of the protected conduct” ( 1977: 287).Mount Healthy School District Board of Education v. Doyle

Because procedural due process analysis considers the probability that the government is acting in error, the public employer will often investigate an employee before taking disciplinary action. In LaChance v.

(1998), the Supreme Court held that employees suspected of lying to or attempting to misleadErickson investigators in an effort to defend themselves may be disciplined for their falsehoods without any violation of their due process rights. Courts have determined that the due process “right to be heard” does not protect an employee from sanctions resulting from lying. However, where an investigation may lead to criminal charges, the public employee does maintain the right to remain silent under the Fifth Amendment.

As in other areas, the public service model’s balancing approach in procedural due process cases provides public sector human resource managers with a rough set of guidelines, but it may not prove sufficient to inform particular administrative decisions. Individual facts and circumstances may ultimately determine close legal questions. For example, it is difficult in the abstract to know how quickly after suspending an employee an employer must provide a hearing in order to meet the current “prompt post-suspension hearing” requirement. As always, the best way to keep track of answers to such questions is to follow the case law in one’s jurisdiction, including rulings by the federal district courts and courts of appeals in one’s judicial circuit.

Liability

It cannot be overemphasized that a public manager’s need for knowledge and understanding of relevant constitutional doctrine is much more than academic. As a result of several Supreme Court decisions over the past three decades, such knowledge has become a positive job requirement (Rosenbloom, O’Leary, and Chanin 2010: 271–287). Today, a public sector manager occupying a position at any level of government may well be personally liable for compensatory and even punitive damages, if found to have violated “clearly established . . . constitutional rights of which a reasonable person would have known” (Harlow v. Fitzgerald 1982: 818; see also 1983; 1991). “Clearly established” in this context itself isSmith v. Wade Hafer v. Melo not altogether clearly established. In (2002) the Court held that “clearly established” does notHope v. Pelzer require a judicial precedent in a case with materially similar facts, only that the public employee has “fair warning” from constitutional law and values that his or her behavior will violate someone’s rights. However, in (2012), “clearly established” was defined as such “that every ‘reasonable officialReichle v. Howards would [have understood] that what he is doing violates’” a right ( 2012: 2093; brackets inReichle v. Howards the original text). The Supreme Court essentially reiterated this standard with reference to police in Plumhoff

(2014): “a defendant cannot be said to have violated a clearly established right unless the right’sv. Rickard contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it” (2023).

An exception to personal liability exists for federal personnel in some cases where the individual whose rights have been violated is able to obtain a remedy in alternative fashion established by legislation or, presumably, executive order, such as through appeal to the Merit Systems Protection Board (Bush v. Lucas 1983). Moreover, public employees have absolute immunity from civil suits for damages for violations of individuals’ constitutional rights when they are performing adjudicatory functions, such as hearing examinersC

op yr ig ht ©

2 01 6. C Q

la w.

or “prosecuting” adverse actions ( 1978; 1988; 1991).Butz v. Economou Forrester v. White Burns v. Reed Nevertheless, it must be emphasized that absolute immunity attaches to the specific function rather than the job title. Thus, a hearing examiner has absolute immunity when engaged in adjudication, but not when hiring or firing his or her secretary.

In addition to the federal constitutional principles outlined in this chapter, public sector human resource experts must be aware of state constitutional law, which may also affect public sector human resource matters. Where a state’s protection of public employees’ rights such as privacy or substantive due process exceeds that of the federal Constitution, state and local governments must meet the higher state standard. Public managers at all levels of government may avoid liability by exercising their constitutional “right to disobey” any order requesting implementation of an unconstitutional law or policy so as to prevent infringement of others’ protected rights ( 1979). This ability, of course, isHarley v. Schuylkill County premised on an understanding of the constitutional rights at issue and a facility with the public service model for balancing all the interests at stake. Gaining reasonable knowledge of the constitutional law—both state and federal—that governs one’s actions is the best way to avoid violating rights. Public managers need not be lawyers, but they must develop the ability to recognize if and when decisions, actions, procedures, or policies run afoul of the law.

Conclusion

Contemporary efforts to improve public sector performance serve two components of the public service model—the governmental and public interests. However, the interests and rights of employees may receive limited attention. The tools of contemporary public administration—downsizing, performance measurement and management, newer electronic communication technologies and social media, outsourcing, competitive sourcing, and collaborative governance arrangements—can increase the immediacy of the Constitution in dealing with human resources. For instance, downsizing and competitive sourcing can bump up against procedural due process and equal protection rights. Where civil service status or other property interests in employment are involved, dismissals cannot constitutionally be arbitrary, capricious, discriminatory, or unauthorized by law. If individual employees are picked as targets for reductions in force, they will almost certainly have substantial due process rights. Depending on the circumstances, and especially in cases where agencies have been under court order to increase diversity (as in ), downsizing thatUnited States v. Paradise has a harmful impact on the employment interests of minorities or women will be subject to challenge under the equal protection clause.

In an age in which employers can monitor employees’ computer usage, including key strokes, email, and use of pagers and other communication devices, new Fourth Amendment privacy questions are certain to arise, as in .Quon

Outsourcing and collaborative governance present a special set of constitutional issues when they involve a public function (such as incarceration) or so entwine the government and a private organization that it is impossible to tell where one begins and the other ends (e.g., public-private partnerships). In those circumstances, under current “state (i.e., governmental) action” doctrine, at the state and local levels, the private organization and its employees may well become liable for violating individuals’ constitutional rights. A private individual working directly for a state or local government is likely to have the same qualified immunity as public employees ( 2012). Yet one working for a private organization underFilarsky v. Delia contract with a government may not. For example, in (1997), a prison guardRichardson v. McKnight employed by a private prison management firm was held to a higher liability standard. Unlike a public employee, he was subject to liability for violating prisoners’ constitutional rights regardless of whether they were clearly established or a reasonable person would have known of them. Private organizations that become state actors by virtue of their contractual or other cooperative arrangements with the federal government are not liable for money damages in constitutional tort suits (Correctional Services Corporation

2001). Neither are their employees, at least in so far as state tort law offers an alternative throughv. Malesko which the injured party may be compensated ( 2012).Minneci v. Pollard

Co py ri gh t © 2 01 6. C Q

la w.

A human resource expert aware of constitutional principles and current doctrine could bring this constitutional dimension to bear on organizational decisions concerning outsourcing and collaborating with private entities. Will the private organizations, whether for profit or nonprofit, seeking government contracts be working in policy or program areas in which constitutional rights are relevant? Will their organizational cultures and staffing levels ensure that such rights will be protected? Could they and their employees withstand liability suits? Would it be better public policy to keep the function within a government agency in order to make sure that the employees are properly trained with respect to their constitutional responsibilities?

By taking a proactive role in alerting decision-makers to constitutional issues, particularly those presented in First, Fourth, Fifth, and Fourteenth Amendment jurisprudence, public sector human resource experts will not only protect individual rights but also reduce susceptibility to lawsuits. Incorporating a constitutional dimension into public administration will give managers better and more consistent information and skills to protect employees’ rights as well as to achieve organizational goals within the framework of our democratic-constitutional government.

Notes

1. The first ten amendments to the Constitution, known as the Bill of Rights, apply directly to the federal government. The Fourteenth Amendment, which was ratified in 1868, prohibits the states (and their political subunits) from violating many of these rights as well. The due process clause of the Fourteenth Amendment protects individuals from the deprivation of life, liberty, or property by sub-national governments. Over the years, the term has been read by the Supreme Court to “incorporate” much of the Bill of Rights,liberty including the First and Fourth Amendments, which are of particular importance to PHRM. This is why McPherson can argue that her First Amendment rights, which are incorporated into the Fourteenth Amendment, have been violated. Because the Fourteenth Amendment is what applies the First Amendment to state and local governments, she argues that it has been violated as well. As is discussed later in the chapter, the Fourteenth Amendment also prohibits the states and their subunits from depriving any person within their jurisdiction “equal protection of the laws.” Known as the equal protection clause, this provision is interpreted to apply to the federal government through the word in the Fifth Amendment, a processliberty called “reverse incorporation.”

2. , 461 U.S. 138 (1983), establishes that courts must consider a public employee’sConnick v. Myers comment in its original context when evaluating whether the comment touches on a matter of public concern.

3. The Court noted that an exception might be made for faculty at public universities and colleges, whose work product involves teaching and writing.

4. In (2003), the Supreme Court held that diversity in higher education can constitute aGrutter v. Bollinger compelling governmental interest. The Court’s reasoning would seem to apply to diversity in public sector human resource management as well: “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity” (332).

5. As an interesting and relevant aside, courts may also hold local governments and agencies liable for monetary damages when their policies are closely connected to violations of individuals’ constitutional rights, regardless of whether those rights can be said to be clearly established or should be reasonably known ( 1978; 1986).Monell v. New York City Department of Social Services Pembaur v. Cincinnati

References ( ).Abood v. Detroit Board of Education, 431 U.S. 209 1977Co

py ri gh t © 2 01 6. C Q

la w.

( ).Adarand Constructors v. Pena, 515 U.S. 200 1995

.AFSCME v. Woodward, 406 F.2d 137 (8th Cir. 1969)

( ).Board of Regents v. Roth, 408 U.S. 564 1972

( ).Branti v. Finkel, 445 U.S. 507 1980

( ).Broadrick v. Oklahoma, 413 U.S. 601 1973

( ).Burns v. Reed, 500 U.S. 478 1991

( ).Bush v. Lucas, 462 U.S. 367 1983

( ).Butz v. Economou, 438 U.S. 478 1978

( ).Chicago Teachers Union v. Hudson, 475 U.S. 292 1986

( ).City of Ontario v. Quon, 560 U.S. 746 2010

( ).Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 1973

( ).Cleveland Board of Education v. LaFleur, 414 U.S. 632 1974

( ).Cleveland Board of Education v. Loudermill, 470 U.S. 532 1985

( ).Connick v. Myers, 461 U.S. 138 1983

( ).Correctional Services Corporation v. Malesko, 534 U.S. 61 2001

. . , ( ), – .Developments in the Law—Public Employment 1984 Harvard Law Review 97 7 1611 1800

la w.

( ).Elfbrandt v. Russell, 384 U.S. 11 1966

( ).Elrod v. Burns, 427 U.S. 347 1976

( ).Filarsky v. Delia, 132 S.Ct. 1657 2012

( ).Forrester v. White, 484 U.S. 219 1988

.Fowler v. New York, 704 F. Supp. 1264 (S.D.N.Y. 1989)

( ).Garcetti v. Ceballos, 547 U.S. 410 2006

( ).Gilbert v. Homar, 520 U.S. 924 1997

( ).Grutter v. Bollinger, 539 U.S. 306 2003

( ).Hafer v. Melo, 502 U.S. 21 1991

(E.D. Penn 1979).Harley v. Schuylkill County, 476 F. Supp. 191

( ).Harlow v. Fitzgerald, 457 U.S. 800 1982

( ).Hope v. Pelzer, 536 U.S. 730 2002

( ).Johnson v. California, 543 U.S. 499 2005

( ).Kelley v. Johnson, 425 U.S. 238 1976

( ).Knox v. Service Employees International Union Local 1000, 132 S.Ct. 2277 2012

( ).LaChance v. Erickson, 522 U.S. 262 1998

la w.

( ).Massachusetts Board of Retirement v. Murgia, 427 U.S. 304 1976

( ).McAuliffe v. New Bedford, 155 Mass. 216 1892

( ).McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645 1976

( ).Minneci v. Pollard, 132 S.Ct. 617 2012

( ).Monell v. New York City Department of Social Services, 436 U.S. 658 1978

( ).Mount Healthy School District Board of Education v. Doyle, 429 U.S. 274 1977

( ).National Treasury Employees Union v. Von Raab, 489 U.S. 656 1989

( ).O’Connor v. Ortega, 480 U.S. 709 1987

( ).Pembaur v. Cincinnati, 475 U.S. 469 1986

( ).Pickering v. Board of Education, 391 U.S. 563 1968

( ).Plumhoff v. Rickard, 134 S. Ct. 2012 2014

( ).Rankin v. McPherson, 483 U.S. 378 1987

( ).Reichle v. Howards, 132 S.Ct. 2088 2012

( ).Richardson v. McKnight, 521 U.S. 399 1997

. . . : ., Rohr John 1978 Ethics for Bureaucrats New York, NY Marcel Dekker

. . : ., Rosenbloom David H. 1971 Federal Service and the Constitution Ithaca, NY Cornell University Press

la w.

. . ( ed.). : , Rosenbloom David H. 2014 Federal Service and the Constitution 2nd Washington, DC Georgetown .University Press

, , and . . (, Rosenbloom David H. Rosemary O’Leary Joshua Chanin 2010 Public Administration and Law 3rd ed.). : .Boca Raton, FL CRC/Taylor & Francis

( ).Rutan v. Republican Party of Illinois, 497 U.S. 62 1990

( ).Shelton v. Tucker, 364 U.S. 479 1960

( ).Sherbert v. Verner, 374 U.S. 398 1963

( ).Skinner v. Railway Labor Executives Association, 489 U.S. 602 1989

( ).Smith v. Wade, 461 U.S. 30 1983

( ).United Public Workers v. Mitchell, 330 U.S. 75 1947

( ).United Steel Workers of America v. Weber, 443 U.S. 193 1979

. . United States Senate 1967 “Protecting Privacy and the Rights of Federal Employees” S. Rept. 519. 90th . .Cong., 1st Sess August 21

( ).United States v. National Treasury Employees Union, 513 U.S. 454 1995

( ).United States v. Paradise, 480 U.S. 149 1987

( ).United States v. Virginia, 518 U.S. 515 1996

( ).Washington v. Davis, 426 U.S. 229 1976

( ).Waters v. Churchill, 511 U.S. 661 1994

( ).Wygant v. Jackson Board of Education, 476 U.S. 267 1986

la w.