Tuesday, July 13, 2010

Understanding Public Employee Rights

There's a really fascinating discussion over at Ta-Nehisi Coates blog about bad cops in the wake of the Oscar Grant verdict. The conversation has meandered into the issue of public employee unions and one of Coates' commenters (and guest blogger) writes,

Some subjects are so complicated that they really deserve threads of their own - public employee unions are a prime example. But yeah, I have some fundamental concerns about the concept. And it's an issue of increasing salience - we now live in a nation in which most union members work for the government, and in which they generally enjoy greater job security and richer benefits than the taxpayers who fund them. Whether or not it's wise, it doesn't strike me as sustainable.

Well on the first point, he is right - this is a big issue on its own. On the second point though I think his analysis demonstrates a lack of understanding about the rights of public employees. Public employees do enjoy greater job security than most private employees however that is not a function of public employee unions but rather a basic matter of due process under the United States Constitution. To boil it down its most simplest terms - public employees (for the most part) have a property interest in their job. The Federal government, via the 5th Amendment, and state and local governments, via the 14th Amendment, cannot deprive persons of their property without due process of law. And in the case of public employees the Supreme Court has held that due process requires pre-termination notice coupled with an opportunity to respond plus a post-termination appeal process.

If you think public employees enjoy too much job security don't blame the unions - blame the Constitution.

1 comment:

Andrew Oh-Willeke said...

"Public employees do enjoy greater job security than most private employees however that is not a function of public employee unions but rather a basic matter of due process under the United States Constitution. To boil it down its most simplest terms - public employees (for the most part) have a property interest in their job."

This analysis misses a key point.

Employees have job security not because public employees generally have a property interest in their jobs. They don't. There are plenty of public employees (including most political appointees and government lawyers) who are employees at will and can be fired without due process. Indeed, the U.S. Supreme Court recently held that it was unconstitutional for employees of the PCAOB to be anything other than employees at will.

What gives public employees property interests in their jobs that entitle them to due process is that their jobs come with civil service protections. The U.S. constitution does not demand that public employees have civil service protections, and through President Andrew Jackson, at least, it was common for public employees to be employees at will.

The statutory (and in some cases, state constitutional) right of public employees who have civil service protections to be fired only for cause is what gives them a property interest in their positions and due process protections.

It would not violate the U.S. Constitution to end civil service protections for public employees, and if those protections were ended, they would no longer have any due process rights in employment termination proceedings.

In the same vein, teachers and professors with tenure, which is simply a form of civil service protection for civil servants in most cases, are entitled to due process when there is an attempt to terminate their employment, but there is no constitution rule that say that teachers or professors must be given tenure and many do not have tenure.