You’re Not Fired: Do Civil Servants Have a Property Interest in Their Job? [POLICYbrief]
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You’re Not Fired: Do Civil Servants Have a Property Interest in Their Job? [POLICYbrief]


Whether the president can fire any given employee
depends on two things. First, the nature of the position that they’re
in, and second, your views of the president’s constitutional powers. The president’s authority to fire federal
employees is rooted in the Appointments Clause, Article II, Section II, Clause II of the Constitution,
which actually only states the president’s affirmative authority to appoint officers of
the United States. The Supreme Court has long read into that
authority the ability to remove those officials as well. Across the whole federal government, you can
divide federal employees into basically two buckets. At the top of the food chain, you have officers
of the United States. And then, you’ve got the rest of the federal
government, who are general employees, most of them, although not all of them, subject
to the protections of the Civil Service Reform Act. At the officer of the United States level,
many positions have removal restrictions of some kind that have been enacted by Congress,
and then when you get below the officer of the United States level, the vast majority
of federal employees fall within the protections of the Civil Service Reform Act. Those statutory restrictions really form the
set of obstacles that prevent the president from f- firing at will those employees that
he thinks are not performing their jobs properly. In addition to the statutory restrictions
that exist on the president’s authority to fire, it’s interesting that, when you look
at the Supreme Court’s decisions from the 1970s and mid-1980s that created, uh, or recognized
a property interest of em- government employees in their jobs, they did so in the context
of saying that the rights that you have given someone under a contract or under a statute
are the very thing that gives rise to the constitutional protections. So, going back to the early 1970s, a couple
of cases went up to the Supreme Court, one of which was the Board of Regents v. Roth,
and in that case, Roth had a contract to teach that wasn’t renewed, and he alleged that he
had not been renewed for First Amendment reasons that the administration hadn’t liked what he
was saying. And in that case, the Supreme Court said,
“You had no property interest in that contract. You had a one-year contract. It didn’t guarantee that you would be renewed. No process was required for them not to renew it.” That same term, in Perry v. Sindermann, another
professor, also not tenured but who had been long within the Texas professorial system for
several years, the Supreme Court held that that, alone, even though there was no contractual
tenure right at issue, having been a longer-term employee somehow created a property interest
for him in his job. And that required the government to give him
some form of due process prior to choosing not to renew his contract. Sindermann’s contract was a one-year contract
that they simply had elected not to renew. So, that early 1970s case provided the foundational
due process rights that the Supreme Court created with respect to government possessions,
and that really culminated in a case, Cleveland Board of Education v. Loudermill in the mid-1980s. Now, Loudermill was a security guard who had
failed to report to his employer when he applied for his security guard job, uh, that had actually
lied on his application to get his job. He had committed grand larceny and hadn’t reported
it on his application, and they fired him after they discovered that he had lied. Now, he actually had tenure protections under
the Ohio Civil Service system, and under those protections, he was entitled to a post-termination
hearing, which they gave him. But he said, “That’s not enough. I deserved a pre-termination hearing before
I got fired, and not just post-termination review.” And the Supreme Court agreed with him and
said that, “Because the government had given you a tenured position where you had protections
with respect to your job, that was sufficient to create a property interest in your job,
and once you have that property interest, the post-termination hearing wasn’t enough.They’re
also somehow required to give you a pre-termination hearing as well.” Once you have any kind of statutory rights,
even if you have merely a long tenure that has given you the expectation that your contract
is going to be renewed, even though you have no contractual right to do it, those kinds
of facts may give you, according to the Supreme Court, a property interest in your job that requires
some form of due process before you can be fired.

7 Comments

  • Witch Slayer

    An employee has a property interest in his job only if the company/organization is employee owned. Otherwise, s/he serves at the pleasure of the stockholders, taxpayers, or whoever actually owns the business/organization. The idea that being an employee gives you a right to ownership of the business is a bald faced attempt to copy-paste Marxist thought into Anglo-American legal traditions.

  • Stay EZ My Friends

    I always like to remind my public servants that they are in fact public servants. I usually point at me when I say "public" and then point at them when I say "servant".

    Government employees serve the electorate and thus are subject to the will of the electorate, who is ultimately represented by those elected of course. In recent years there has been a massive inversion of this fundamental principal and thus we are seeing tyranny being birthed into the western world.

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