NCJ Number
69436
Journal
University of Chicago Law Review Volume: 42 Dated: (SPRING 1975) Pages: 530-561
Date Published
1975
Length
32 pages
Annotation
THIS ARTICLE DISCUSSES CONSTITUTIONAL AND PROCEDURAL PROTECTIONS FOR GOVERNMENT EMPLOYEES WHO DISCLOSE AGENCY WRONGDOINGS. AGENCY RIGHTS IN SUCH CASES ARE ALSO REVIEWED.
Abstract
WHETHER A CIVIL SERVANT'S REASONS FOR EXPOSING THE MALFEASANCE OF AN AGENCY ARE SELFISH OR SELFLESS, THOSE EMPLOYEES SUBJECT THEMSELVES TO POSSIBLE SANCTIONS SUCH AS DISMISSAL, OR DENIAL OF PROMOTION OR BENEFITS. AN EMPLOYEE'S SUBSTANTIVE RIGHTS INCLUDE THE CONSTITUTIONAL GUARANTEES OF FREEDOM OF SPEECH AND PETITION AND FEDERAL AND STATE STATUTORY GUARANTEES THAT BAR DISMISSAL EXCEPT WHERE CAUSE FOR REMOVAL HAS BEEN ESTABLISHED. THIS SECOND AREA NOT ONLY PROTECTS THE EMPLOYEE BUT GIVES THE GOVERNMENT THE MEANS FOR RESTRICTING EMPLOYEE CONDUCT. IN PICKERING V. BOARD OF EDUCATION, THE U.S. SUPREME COURT HELD THAT PROTECTION OF THOSE CONSTITUTIONAL RIGHTS EXTENDED TO PROTECTION AGAINST UNJUSTIFIED DISMISSAL FOR PUBLIC CRITICISM OF A GOVERNMENT EMPLOYER'S POLICIES. DESPITE THE COURT'S RELUCTANCE TO SET A PRECEDENT OF BROAD APPLICABILITY, THE OPINION HAS BEEN TAKEN BY OTHER COURTS AS PROVIDING SPECIFIC GUIDELINES FOR EVALUATING GOVERNMENT-IMPOSED SANCTION ON EMPLOYEE DISCLOSURES. MANY CASES FOLLOWED WHICH EXPLORED AREAS OF EMPLOYEE DISHARMONY AND THREAT OF HARM FROM DISCLOSURE. LEGISLATIVE MANDATES WHICH PROTECT THE DISCLOSING EMPLOYEE DELINEATE THE SCOPE OF EXECUTIVE DISCRETION IN EMPLOYMENT SANCTIONS THAT MAY REMAIN UNRESTRICTED BY CONSITUTIONAL DOCTRINES. ADVANCES IN PUBLIC EMPLOYEE RIGHTS HAVE BEEN MADE IN PROCEDURAL PROTECTIONS. FROM THE COURTS' VIEWPOINT, THE WAYS AN AGENCY TRIES TO RESTRAIN SPEECH ARE BETTER SCRUTINIZED THAN THE FORM OF SPEECH RESTRAINED. THE NATURE AND TIMING OF THE PROCEDURE BY WHICH GOVERNMENT EMPLOYEES ARE ENTITLED TO CHALLENGE THEIR DISMISSALS OR OTHER SANCTIONS MAY AFFECT THEIR CHANCES OF SUCCEEDING AND THEIR ABILITY TO UNDERTAKE THE CHALLENGE. AN EMPLOYEES'S FIRST AMENDMENT RIGHTS MUST BE BALANCED AGAINST THE GOVERNMENT'S INTERESTS, WITH THE COURTS JUDGING THAT BALANCE. FINALLY, ALTHOUGH STATUTES AND REGULATIONS PRESCRIBING GENERAL STANDARDS FOR EMPLOYMENT SANCTIONS AND THE CONSTITUTIONAL GUARANTEE OF CERTAIN PROCEDURAL PROTECTIONS CANNOT PREEMPT THE ULTIMATE RESOLUTION OF CONFLICTING INTERESTS, THEY DO SERVE TO CLARIFY AND MAKE MORE FAIR THE INITIAL ASSERTION OF THE GOVERNMENT'S INTERESTS IN RESTRICTING AN EMPLOYEE'S DISCLOSURES. FOOTNOTES ARE PROVIDED. (KHM)