Public Employees

• Author: Jonathan D. Varat
• Pages: 2065-2067

Page 2065

The government may regulate public employees more extensively than citizens at large because legitimate employer interests in controlling job-related behavior supplement the government's general constitutional power to control the behavior of private citizens. Government employers constitutionally are less free than private employers to control their employees, however, for the simple reason that the Constitution primarily limits government, not private, power. Eligibility criteria, work rules, and myriad personnel decisions take on constitutional dimensions in public sector employment that are absent from the private sector.

The competing analogies of government as citizen-regulator and government as private employer raise related questions. How much more power may the government exercise over its employees than over citizens at large? What constitutional limits bind public employers that do not bind private employers? The two questions tend to converge because, inevitably, the government affects its employees as regulator and employer simultaneously.

The constitutional issues comprise both substance and process. What substantive freedoms may the government require its employees to forgo as a condition of employment and what are the permissible and impermissible bases for disadvantaging public employees? Procedurally, when, how, and with what opportunity to respond, must government employers inform their employees of the reasons for adverse personnel actions?

The constitutional values at stake clash and mesh in complex ways. Government workers have individual rights to exercise substantive freedoms without improper penalty and to be treated fairly by the government. These often vie with government interests in effective, honest, efficient, and democratic management of the public's business. The government also has interests in employee loyalty and in the confidential execution of public policy. These may war with the value of freedom for dissident employees to bring important information to public attention and to check abuse of government power by other officials. Inevitably, public employees have greater opportunities than ordinary citizens both to impede legitimate government action and to prevent government abuse.

Public employees' own rights and the implication of their activities for public governance make the constitutional balance important and intricate, especially given this century's extensive increase in public employment. The existence of 3 million federal employees and 13 million more state and local government workers makes sacrifices of their constitutional freedoms of considerable consequence, both personal and societal. Yet their numbers create a potent political force able to secure statutory job protection and to fend off arbitrary treatment as a group, diminishing the need for constitutional protection. In addition, the size of the public work force increases...