Due Process and Public Personnel Management

• Published date: 01 September 1981
• DOI: 10.1177/0734371X8100200103
• Author: Deborah D. Goldman
• Date: 01 September 1981
• Subject Matter: Articles

DUE
PROCESS AND PUBLIC PERSONNEL MANAGEMENT
Deborah D. Goldman
The Maxwell School of Citizenship
and Public Affairs
Syracuse University
Introduction
The federal judiciary has given a great deal of attention to the issues posed
by the application of procedural due process to adverse actions against public
employees. On the surface, it has frequently appeared that federal judges were
trying to control both the substance and process through which public employees
were disciplined. Indeed, public managers and politicians occasionally complain
that it is becoming increasingly difficult to manage the public sector as a result
of judicial intervention of this nature.
However, a more thoroughgoing analysis of the content of Supreme Court
decisions concerning the due process rights of public employees indicates that
the Court has not generally attempted to substitute its judgment for that of ex-
ecutive branch officials on the merits of whether an individual civil servant
should be dismissed. Rather, for the most part, the Court has sought to establish
guidelines for the constitutional treatment of public employees in adverse ac-
tion cases. Thus, most of the Court’s attention has been paid to matters of pro-
cedure. Although it is sometimes argued that the process required by the judiciary
in adverse action cases has become so elaborate that public managers are de-
terred from undertaking it except in extreme instances, there is reason to believe
that this view is condsiderably overstated (Merrill, 1973). In reality, judicial
involvement in this area of public personnel management has been far more
limited than is sometimes perceived. Moreover, at the present time the Supreme
Court appears to be reducing the relevance of procedural due process to public
employment even further.
Procedural Due Process
One of the difficulties generally confronting public personnel managers in
trying to apply procedural due process in adverse actions is determining precisely
what the constitution and court require. Indeed, the judiciary has not developed
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a rigid definition of procedural due process. For instance, in Hannah v. Lar-
che (1960:442) the Supreme Court specifically addressed the amorphous
character of procedural due
&dquo;
process:
’Due process’ is an elusive con-
.. whether the Constitution requires that a particular right obtain in a
specific proceeding depends upon a complexity of factors. The nature of the
alleged right involved, the nature of the proceeding, and the possible burden
on that proceeding, are all considerations which must be taken into account.&dquo; 9
Generally, however, procedural due process involves at least the right to notice
of the proposed government action, the reasons for it, and an opportunity to
respond. It often goes further by affording the injured individual a hearing
before an impartial official. The hearing may include the right to counsel, con-
frontation, cross examination, and the subpoena witnesses. It may also have
to be open to the public.
Historically the Supreme Court has been extremely reluctant to make pro-
cedural due process applicable to adverse actions against public employees. The
reasons for this appear to be primarily twofold. Firstly, from the 1830s through
the 1950s, the Court’s reluctance could be attributed to its adherence to the
then prevailing doctrine of privilege, as noted by Rosenbloom in his essay. For
example, in Bailey v. Richardson (1951) the Court sustained the opinion of a
lower court that allowed a federal employee to be dismissed for disloyalty after
a procedure in which she was denied the right to confront and cross examine
the informants against her, who were also unknown to the Loyalty Board hearing
her case. Secondly, and more recently, the Court has sought to reduce its role
in defining the procedural rights of public employees in an effort to avoid over-
burdening public personnel management with excessive judicial intervention and
also in order to reduce the pressures on the federal courts’ crowded dockets.
In fact, the Court has explicitly announced that the federal judiciary is not the
appropriate forum for the resolution of mistakes by public personnel managers.
During the 1960s and early 1970s, however, the Supreme Court expressed a
markedly different view.
The doctrine of privilege was never confined to public employment. It de-
fined the constitutional relationship between the individual and the government
in most situations where some form of governmental largess was being
distributed (Reich, 1964; Van Alystyne, 1968). Its demise by the 1960s coincid-
ed with a period of remarkable judicial activism in which the rights of individuals
generally underwent a widespread expansion. In the area of the procedural due
process rights of public employees, the doctrine’s influence eroded primarily
as a result of two factors. Firstly, the abuses of the loyalty-security program
in the 1950s led the Supreme Court to reconsider the rights of an individual
whose dismissal from government impugned her or his reputation. For instance,
in Cafeteria Workers v. McElroy ~19610~9~~ the court had occasion &dquo;to
acknowledge that there exist constitutional restraints upon state and federal
governments in dealing with their...