This document provides an overview of administrative law regarding public employment. It discusses the constitutional protections that apply to public employees, including protections under the 1st, 4th, and 14th Amendments. It outlines the development of due process protections for public employees through key Supreme Court cases like Board of Regents v. Roth and Cleveland Board of Education v. Loudermill. It also discusses other legal protections for public employees, such as protections for political expression, privacy, and against discrimination.

1. Administrative Law
The Law of Public
Employment

2. Introduction
 Public officers are required to take an oath to uphold the U.S. Constitution
before assuming duties as a member of Congress, state legislature, or as a
federal or state executive or judicial officer.
 Bureaucrats are citizens too.
 Bureaucrats derive protection from:
 The U.S. Constitution
 Federal statutes
 State constitutions
 State statutes
 The law of public employment involves a variety of issues:
 Hiring
 Promotion
 Job security
 Unionization
 Collective bargaining
 The right to strike
 Discrimination
 Sexual harassment

3. Three Aspects of Public
Employment
 The history and development of the American
bureaucracy.
 Constitutional requirement for hearings
(Goldberg v. Kelly, Mathews v. Eldridge)
 The duties of the government to uphold the
Constitution when it comes to the rights of
employees.
 First Amendment
 Right to privacy
 Fourth Amendment
 Equal Protection Clause of the 14th Amendment

4. Due Process Protections for Public
Employees
 Early on, courts refused to recognize a job held by a public
employee as a property interest that was protected by the due
process clause of the 5th or 14th Amendments.
 “The New Property,” Charles Reich.
 Board of Regents v. Roth,
 A university refused to rehire a tenure-track processor after the
expiration of his one-year contract.
 Roth believed the decision was the result of comments he made in
which he publicly criticized the university.
 Though the university provided no explanation for its decision, the
Supreme Court said that the professor was not entitled to a hearing
because:
 The university had not publicly criticized Roth by stating the reasons for the
decision to not rehire.
 There was no informal promise of tenure or contact renewal.
 The next case deals with this issue as well but involves a different
set of facts…

5. Perry et al. v.
Sindermann, 408 U.S. 593
(1972)

6. Expansion of the Property Interest
in Public Employment
 The Court demonstrated in Sindermann that a public employee must
demonstrate a property interest in their job then a due process protection is
triggered.
 But the question becomes what sort of process is due?
 Civil Service Reform Act of 1978.
 The act provides additional protections for public employees who are removed, suspended,
demoted, or laid off.
 This demonstrated a trend toward a greater property interest in public employment.
 The Court would also move away from the logic that the scope of
procedural protection was linked with the substantive nature of the
property interest (Arnett v. Kennedy, 1974).
 Previously these decisions were based on the procedural protections afforded by the
legislature.
 When legislatures provided limited procedural protections, the Court accepted this
idea.
 Thus the scope of the procedural protections was linked with the substantive nature of
the property interest.
 But notice that this was prior to Mathews v. Eldridge (1976)
 The next case would change the Court’s position on this matter…

7. Cleveland Board of
Education v. Loudermill,
470 U.S. 532 (1985)

8. Gilbert et al. v. Homar,
520 U.S. 924 (1997)

9. Other Protections for Public
Employees
 Freedom of Political Expression
 How exactly is the right to free speech under the First Amendment applied to public
employees?
 Pickering v. Board of Education (1968),
 The Supreme Court stated that “a public employee does not relinquish First Amendment rights
to comment on matters of public interest by virtue of government employment.”
 The emphasis is on whether the speech addresses a matter of public concern.
 The Court will look at the text of a given statement to determine the content, form, and
context.
 If the speech does not touch on a matter of public concern, then First Amendment protection
is not offered.
 Connick v. Meyers (1983)
 The Court upheld the firing of a district attorney in because her actions were “in-house” and
thus not a matter of public concern.
 Rankin v. McPherson
 The Court ordered the reinstatement of a public employee in for being fired for her
statements about the attempted assassination of Ronald Reagan when she said, “If they go
for him again, I hope they get him” as her statement was clearly a matter of public concern.
 Garcetti v. Ceballos (2006),
 The Court said that speech made in the official capacity of an employee’s duties are not
protected by the First Amendment.

10. Other Protections for Public
Employees
 The Right to Privacy
 The right to privacy cannot be found in the
Constitution, but was asserted in the case of
Griswold v. Connecticut (1965).
 Some suggest it comes from the following places:
 The First Amendment (right to free association)
 The Third Amendment
 The Fourth Amendment
 The Fifth Amendment (self-incrimination)
 The Ninth Amendment

11. Kelley v. Johnson, 425
U.S. 238 (1976)

12. Discussion
 Mandatory drug testing of public officials.
 The question is whether the right to privacy protects
government employees from mandatory drug testing.
 Notice that this is also a 4th Amendment issue.
 The Fourth Amendment prohibits unreasonable searches and
seizures conducted by police and other officials.
 Since, Katz v. United States, the 4th Amendment has protected
citizens’ reasonable expectations of privacy (if there is no
reasonable expectation of privacy, then there is no protection).
 This is a problem for public employees as the Court does not
regard privacy expectations in the workplace as being as great
as in one’s home.
 Normally, under the terms of the Fourth Amendment, in
order to conduct a search, the government must have a
search warrant that was obtained upon showing probable
cause unless there were exigent circumstances.

13. National Treasury
Employees Union et al. v.
Von Raab, 489 U.S. 656
(1989)

14. Anti-Discrimination Law
 Employment discrimination – denying
employment or treating employees unequally
based on their disabilities, race, religion, sex, age,
or national origin.
 Equal Protection Clause of the 14th Amendment
 The 14th Amendment prohibits states from denying to
persons within their jurisdiction the equal protection
of the laws.
 Title VII of the Civil Rights Act of 1964
 Prohibits discrimination on the basis of color, race,
religion, Sex or national origin in both public and
private hiring, firing, and promotion practices.