Most public managers are familiar with employees’ procedural rights under due process clauses of the 5th and 14th Amendments to the United States Constitution. According to these amendments, federal and state governments may not deprive persons of “life, liberty or property without due process of law. ” In the context of public employment, the U. S. Supreme Court has interpreted these words to require certain notification and hearing rights when a government employer terminates or otherwise adversely affects an employee’s employment status.
In addition, the Supreme Court has interpreted the due process clause to contain a substantive restriction on governmental action as well. Although public managers may be less familiar with this substantive due process in the employment context is far from clear, however, and continues to generate litigation. As a consequence, prudent managers may wish to become familiar with potential substantive due process challenges to their employment decisions.
The Constitution prohibits the government from depriving anyone of a property interest without first according that person procedural due process. The Fifth Amendment Due Process Clause codified the natural law principle that government cannot arbitrarily deprive its citizens of the property they have acquired through their participation in civil society. However, during the due process revolution of the 1960s, the Court extended the constitutional definition of property to include government employment.
If a public employee had an expectation of continued employment, the government could not terminate that job, or property, without first giving that person sufficient due process protections. Under this new approach to property, a public employee did not just acquire a job from her government employer, he or she also acquired a constitutionally protected property interest. Thus, in their employment relationship, public employees, by way of the Due Process Clause, possessed something that none of their private sector colleagues possessed: a constitutional right to their job.
This extension of property protections brought a significant change in the focus of the Due Process Clauses. During the eighteenth, nineteenth, and first half of the twentieth centuries, due process protections pertained to the relationship between citizens and their government. Procedural due process aimed to check and prevent a sovereign authority's arbitrary deprivations of certain fundamental rights of its citizens. As such, due process rights were shared equally by all citizens.
The necessity of such rights resulted from the fact that, regarding actions by the sovereign, citizens had no other remedies available to them to redress actions by the sovereign: There was no other sovereign to which the citizens could appeal, no other sovereign that could rectify the injustices. However, after the due process revolution had infused the public employment area with due process rights, public employees obtained a special constitutional protection that no other citizens had enjoyed.
Moreover, due process rights were given even though public employees had an adequate and ample alternative for the loss of their jobs: They could go out into the private sector, where the majority of jobs existed, and obtain employment. By equating government employment with constitutionally protected property, the courts have muddied the traditional focus of the Due Process Clauses and blurred the distinctions between government functions and roles. Government as employer was equated with government as sovereign.
This Article attempts to reveal the error of that equation. It seeks to revive the original focus of the Due Process Clauses and highlight the constitutional relevance of the distinction between government as sovereign and government as employer. In doing so, the Article relies on the doctrines governing the First Amendment speech rights of public employees as an analogy for how the due process rights of public employees should be defined. In Garcetti v. Ceballos, the Supreme Court clarified the First Amendment speech rights of government employees.
According to the Court, public employees who speak as a result of the required duties of their job, who speak as employees rather than as citizens, do not have a First Amendment protection from subsequent disciplinary action by their employers. This ruling obviously hinges the granting of constitutional rights on the vital distinction of how the individual is acting or speaking: Is she exercising her constitutional rights as a citizen, or is she simply performing the job functions required by her government employer?
Such a distinction, as argued in this Article, should be reincorporated into the due process doctrines governing public employees. If a right as fundamental and basic as the First Amendment right to free speech hinges on whether the individual-government relationship is one of employee-employer or citizen-sovereign, then the procedural due process rights of public employees should be similarly qualified.