The Due Process Rights of Public Employees

Under current due process doctrines, government employees can have a property right in their continued employment, where interference with that employment must be preceded by due process protections. The Fifth Amendment prohibits the federal government from depriving a person's life, liberty, and property without providing adequate due process.

Up until the mid-twentieth century, courts defined property interests by looking at how the common law had defined property; however, in Goldberg v. Kelly, the Supreme Court took a drastic turn from precedent and significantly expanded the legal sources of property interests eligible for due process protections. In Goldberg, the Court ruled that statutory entitlements like welfare benefits could also constitute a property interest, not just a governmentally conferred privilege, thus, entitling recipients to full adversarial-type hearings before those benefits could be terminated. Later, in Board of Regents of State Colleges v.

Roth, the Court extended this new due process property approach to include a public employee's interest in continued government employment. As the Court stated, a property interest is “defined by existing rules or understandings that stem from an independent source such as state law. ” If state law, for instance, entitled the employee to continued employment subject to certain terms, then a constitutionally protected property interest could arise. The current constitutional status of public employment contrasts with the way courts formerly treated public employment.

Up until the 1950s, courts viewed the rights of government employees through the lens of rights and privileges: Public employment was seen as a privilege, rather than a right, that could be withdrawn at any time without any due process. This right-privilege distinction was based on the view that no person had a constitutional right to government largess. According to this view, as perhaps most famously articulated by Oliver Wendell Holmes, public employment is a privilege that the government is free to grant or withhold at its pleasure.

This view reflected a private sector vision of the public employment relationship: One does not possess a basket of rights that private sector employees do not possess merely because one works for the government. Beginning in the early 1960s, however, the individual rights movement transformed the traditional view of public employees. Throughout this individual rights era, the Court moved beyond the right-privilege distinction and steadily expanded the rights of public employees.

During the 1970s' “due process explosion,” the Court completely cast aside the right-privilege distinction and held that public employment could indeed qualify as a property interest. In Perry v. Sindermann, for instance, the Court found that a faculty manual, along with guidelines promulgated by the state college system, created a property interest for a faculty member because the institution's actions legitimated his claim of entitlement to continued employment.

This holding effectively guaranteed lifetime tenure for the faculty member. The Loudermill Court–by holding that a property interest, once created by state or local law, must be given full constitutional due process protections and could not be subject to any procedural limitations set out in the statute that created it  –rejected the rule of Arnett v. Kennedy, which held that a property interest could be conditioned or limited in that way.

In Arnett, the Court held that a property interest could be conditioned by statutorily created “procedural limitations which had accompanied the grant of that interest. ” The Loudermill Court, however, rejected the notion that a state could create a limited property interest in employment (limited by statutory procedures governing the termination of that interest); instead, the Court held that once a property interest is created by state law, its deprivation is to be governed by constitutional due process procedures, regardless of any statutorily imposed procedures.

Thus, according to Loudermill, even though a particular statute creating a property interest might designate the terms of employment and the means or methods by which that employment can be modified or terminated, the procedures for depriving that property interest are governed by the Due Process Clause rather than by the statute itself. Subsequent public-employment due process decisions have invoked due process requirements and found property deprivations even when an employee has not been terminated.

According to case law, a reasonable expectation in a particular position can constitute a property interest. In Ciambriello v. County of Nassau, the court ruled that a denial of a promotion to which the employee had a reasonable expectation amounted to a deprivation of a property interest. A court has even held that certain job titles or designations rise to the level of legitimate property interests. However, on the question of whether a government contract is enough to create a property interest, the courts are somewhat divided.

According to some courts, contractual provisions alone are sufficient, and violations of those provisions amount to the deprivation of property interests. But in other jurisdictions, contractual provisions are not sufficient to bestow property interests on government employees. The due process explosion of the 1960s and 1970s greatly expanded and broadened the understanding of due process. This expansion of procedural due process protections reflected a notion that the law should protect a system of rights that would maintain “independence, dignity and pluralism in society.

”  Thus, the traditional protections given to common law forms of property were now to be extended to the new forms of property, such as government benefits and jobs. For the advocates of this due process explosion, the purpose of government benefits was to preserve the individual's rightful share in society. Yet even early advocates of broadened due process protections did not consider public employment to be one of the benefits that qualified as property: As one scholar put it, a government job does not reflect “an arrangement which exists for the sake of its holder, in order to satisfy one of his basic needs. ”