Debate It: Take a position for or against this statement: Public sector employees charged with offenses outside of the workplace should be held accountable and liable for their actions – written reprimand, administrative leave, or dismissal from public service. Provide two reasons and examples to support your position. Hypothesize a situation in which a public administrator or employee should have the constitutional right to disobey a directive ordered by a superior. Provide at two reasons and examples to support your position.
Debate It: Take a position for or against this statement: Public sector employees charged with offenses outside of the workplace should be held accountable and liable for their actions – written reprimand, administrative leave, or dismissal from public service. Provide two reasons and examples to support your position. Hypothesize a situation in which a public administrator or employee should have the constitutional right to disobey a directive ordered by a superior. Provide at two reasons and examples to support your position.
|PUBLIC EMPLOYEES’ LIABILITY FOR “CONSTITUTIONAL TORTS”|
David H. Rosenbloom
David H. Rosenbloom is Distinguished Professor of Public Administration at American University (Washington, DC) and Chair Professor of Public Management at City University of Hong Kong. A member of the National Academy of Public Administration, he is recipient of the Levine, Waldo, Gaus, Brownlow, and Mosher Awards, among others, for his scholarly contributions to the field of public administration. Rosenbloom’s competing perspectives model of public administration as management, politics, and law is widely used internationally.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.
CIVIL RIGHTS ACT OF 1871, AS AMENDED AND CODIFIED IN 42 U.S. CODE, SECTION 1983 (1982).
Ever since the establishment of the republic, public employment in the United States has been considered a “public trust.” The concept that public employees have special obligations to the political community has prompted a variety of restrictions on their constitutional rights. For instance, the Constitution prohibits federal employees from being electors in the electoral college and from accepting gifts, offices, emoluments, or titles from foreign governments without the consent of Congress. The document also requires them to swear or affirm their support for it. As early as 1801, President Jefferson sought to restrict the First Amendment rights of federal employees to engage in electioneering because he deemed such activities “… inconsistent with the spirit of the Constitution and [their] duties to it” (Rosenbloom, 1971, pp. 39–40). Over the years, public employees have faced limitations not only on their political and economic activities but also on their residency, privacy, speech and association, and general liberties (Riccucci and Naff, 2007, chapter 3; Rosenbloom, 1971; Rosenbloom and Carroll, 1995; Rosenbloom, O’Leary, and Chanin, 2010, chapter 6). Beginning in the 1970s, public employees also became potentially liable for “constitutional torts,” which has had the effect of requiring public administration to comport more fully with constitutional law and values. The development of this additional legal obligation, its scope, and its consequences for public personnel management in the United States are the subject of this chapter.
Constitutional torts are acts committed by public officials or employees, within the frameworks of their jobs, which violate individuals’ constitutional rights in ways that can be appropriately remedied by civil suits for money damages. For instance, the violation of an individual’s Fourth Amendment right to privacy through an unconstitutional search is such a tort. So is a public employee’s unconstitutional act of racial discrimination. Most federal, state, and local government employees potentially face civil liability for money damages for constitutional torts. In general, they are vulnerable to both compensatory and punitive or exemplary damages. Under Eleventh Amendment interpretation, state governments and agencies cannot be sued in federal court for money damages for their constitutional torts (though other remedies for their unconstitutional acts are available). By extension, state employees cannot be sued as surrogates for state governments in such cases (Will v. Michigan Department of State Police, 1989). However, state employees can be sued in their personal capacities for constitutional torts committed while exercising official authority (Hafer v. Melo, 1991). Similarly, federal employees, but not agencies, can be sued for money damages in constitutional tort suits (FDIC v. Meyer, 1994). Local governments do not have Eleventh Amendment immunity. They are treated as “persons” in this area of the law, can be sued for compensatory, but not punitive or exemplary, damages for constitutional torts caused directly by their policies (City of Newport v. Fact Concerts, 1981; Pembaur v. City of Cincinnati, 1986). Even public employees who never deal directly with members of the public may face liabilities for violations of their subordinates’ constitutional rights.
This chapter focuses on public employees’ personal liability for constitutional torts, which makes “constitutional competence” a matter of basic job competence by requiring public personnel to know the constitutional law that governs their official actions (Rosenbloom and Carroll, 1990; Rosenbloom, Carroll, and Carroll, 2000, chapter 2). For human resource managers, avoidance of personal liability for constitutional torts necessitates the following: (1) understanding how the Constitution pertains to public employment and (2) building constitutionally required protections and procedures into administrative systems for recruitment, selection, employee development, promotion, adverse actions, reductions in force, equal opportunity, labor relations, background investigations, drug testing, and assisting employees with substance abuse and other problems that may jeopardize privacy rights.
PUBLIC OFFICIALS’ ABSOLUTE IMMUNITY: THE TRADITIONAL APPROACH
Until the 1970s, under federal judicial interpretations, public employees at all levels of government generally held absolute immunity from civil suits for constitutional torts stemming from the exercise of their official functions. Under this approach, when public employees acted within the outer perimeter of their authority, they could not be sued personally for violating individuals’ constitutional rights. For example, in Stump v. Sparkman (1978), a state judge enjoying absolute immunity was shielded from a damage suit even though he authorized the sterilization of a “mildly retarded” female high school student under circumstances that failed to protect her constitutional right to due process of law. Moreover, the judge acted without specific legal authorization, but not beyond the ultimate scope of his office. The rationales for granting legislators, judges, executive branch officials, and rank-and-file employees absolute immunity are all somewhat different. But at their root is the belief, developed in common law interpretations, that the activities of governmental functionaries should not be controlled or impeded by individuals’ actual or threatened lawsuits. The Supreme Court stated the principle in Spalding v. Vilas (1896), the first case on official executive immunity to reach it:
In exercising the functions of his office, the head of an Executive Department, keeping within the limits of his authority, should not be under an apprehension that the motives that control his official conduct may, at any time, become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and effective administration of public affairs as entrusted to the executive branch of the government, if he were subjected to any such restraint. (Spalding v. Vilas, 1896, p. 498)
This approach drew some of its legal strength from the centuries-old common law principle of “sovereign immunity.” In English law, sovereign immunity rests on the premise that “the king can do no wrong,” and, consequently, it would be pointless to allow suits against him. Precisely why sovereign immunity was incorporated into U.S. constitutional law has never been wholly clear (United States v. Lee, 1882). However, it precludes suing the federal and state governments in some types of cases unless they have given their permission to be sued through a tort claims act or other legal device.
GENERAL LEGAL TRENDS RELATED TO OFFICIAL LIABILITY
Whatever the strength of the legal rationales for public employees’ absolute immunity, by the 1970s, there was clearly weaker judicial support for precluding civil suits against public employees for money damages. The changing attitude toward absolute immunity was related to two major legal trends. First, civil liability was expanding throughout the American legal system. As Peter Schuck (1988, p. 4) reflected toward the end of the 1980s, “On almost all fronts and in almost all jurisdictions, liability has dramatically expanded. It does not seem to matter what kind of party is being sued. Doctor or public official, landlord or social host, government agency or product manufacturer—all are more likely to be held liable today.” Although the number of suits initiated per capita may be no larger at present than in colonial times and other periods in U.S. history (Galanter, 1988, p. 19), plaintiffs appeared more apt to win or receive satisfactorysettlements because of changing judicial interpretations. Schuck (1982), a leading student of “suing government,” summarized the underpinnings of the emerging tort law:
Although the new judicial ideology of tort law is complex and multifaceted, four elements stand out: (1) a profound skepticism about the role of markets in allocating risk; (2) a shift in the dominant paradigm of causation [from determinant to probabilistic causal relationships]; (3) a tendency to broaden jury discretion; and (4) a preoccupation with achieving broad social goals instead of the narrower, more traditional purpose of corrective justice between the litigants. (Schuck, 1988, p. 6)
The second trend affecting the liability of public administrators for constitutional torts was the expansion of individual constitutional rights. Headed by the Supreme Court under Chief Justice Earl Warren (1953–1969), the federal judiciary demonstrated a new propensity to afford individuals greater constitutional protections vis-à-vis public administrative action (Rosenbloom, O’Leary, and Chanin, 2010). Whole categories of persons who formerly had very few constitutional protections when interacting with public bureaucracies were granted greater substantive, privacy, procedural, and equal protection rights under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments. For instance, public employees were afforded substantial procedural due process protections in dismissals, greater freedom of speech and association rights (including such activities as whistle-blowing and joining labor unions), and much stronger claims to equal protection of the laws. Clients or customers receiving welfare or public housing gained clear procedural due process protections of these benefits for the first time. The courts reinterpreted the equal protection clause to overturn the “separate but equal” doctrine that had previously permitted public services, such as education, to be racially segregated. Prisons were also desegregated under the Fourteenth Amendment and drastically reformed, via the Eighth and Fourteenth Amendments, to reduce overcrowding and brutal conditions. Individuals confined to public mental health facilities were granted a constitutional right to treatment or habilitation. The constitutional rights of persons interrogated about their alleged criminal behavior were expanded to include “Miranda warnings” (Miranda v. Arizona, 1966) and other safeguards. The privacy and due process rights of persons engaged in “street-level” encounters were also enhanced, though somewhat modestly (Delaware v. Prouse, 1979; Kolender v. Lawson, 1983; Lipsky, 1980; Terry v. Ohio, 1968).
For the most part, the trend toward greater constitutional rights for individuals in their encounters with public administration continued during the tenures of Chief Justice Warren Burger (1969–1986) and, to a somewhat lesser extent, Chief Justice William Rehnquist (1986–2005). For example, in the 1990s, property rights were strengthened against administrative zoning regulations that effectively deprived individuals of legitimate uses of their land (Dolan v. City of Tigard, 1994; Lucas v. South Carolina Coastal Council, 1992). New procedural due process protections were applied to civil forfeitures of real property (United States v. James Daniel Good Real Property, 1994). Contractors’ free speech rights were also strengthened (Board of County Commissioners, Wabaunsee County v. Umbehr, 1996; O’Hare Truck Service, Inc. v. City of Northlake, 1996). Constitutional equal protection also became more salient to contracting out (Adarand Constructors, Inc. v. Pena, 1995; City of Richmond v. J. A. Croson Co., 1989). Under the Rehnquist Court, a major exception to the general expansion of constitutional rights occurred with regard to the Fourth Amendment’s protection against unreasonable searches and seizures. Today, one can be arrested for a nonjailable (i.e., “fine only”) offense, such as not wearing a seat belt, police may use any traffic offense—no matter how minor—as a pretext for stopping a motorist whom they suspect of criminal wrongdoing, and individuals can face criminal penalties for refusing to identify themselves to police officers (Atwater v. City of Lago Vista, 2001; Hiibel v. Sixth Judicial District Court of Nevada, Humboldt County, 2004; Whren v. United States, 1996). Headed by Chief Justice John Roberts since 2005, the Court continued to reduce rights in some areas of central importance to public administration. For instance in Garcetti v. Ceballos (2006), the Court held that public employees’ work product speech is not constitutionally protected even when it is on a matter of importance to the general public. It also made it more difficult for prisoners to bring suits in federal court for alleged maltreatment in state penal systems (Woodford v. Ngo, 2006).
Taken together, the expansion of liability and constitutional rights brought about a revolution in the relationship of the federal courts to public administration at all levels of government. Federal judges became deeply involved in the management of prisons, jails, public mental health facilities, and public schools. The courts also became far more salient to such public administrative matters as budgeting and personnel (Horowitz, 1983; Missouri v. Jenkins, 1990, 1995; Rosenbloom, O’Leary, and Chanin, 2010). The intervention of federal courts in state administrative systems added a substantial “juridical” element to federalism (Carroll, 1982).
When individuals possessed few constitutional rights in their encounters with public administrators, constitutional torts would necessarily be limited in number. Certainly, police brutality or violations of the Fifteenth Amendment’s guarantee of the right to vote regardless of race might have been the basis of suits, but by and large it was difficult for public administrators to violate individuals’ constitutional rights simply because the public held so few substantive, procedural, and equal protection guarantees in their interactions with government agencies. As the courts expanded the constitutional rights of public employees, clients/customers, prisoners, public mental health patients, individuals engaged in street-level encounters, property owners, and government contractors, the potential number and scope of constitutional violations became substantial. Consequently, it was desirable to develop an enforcement mechanism that would protect individuals against unconstitutional administrative action and enable them to vindicate their rights. Enter liability.
FROM ABSOLUTE TO QUALIFIED IMMUNITY: THE RISE OF LIABILITY
As late as 1959, a plurality on the Supreme Court continued to adhere to the following principle:
It has been thought important that officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties—suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the … administration of policies of government. (Barr v. Matteo, 1959, p. 571)
However, once the public was gaining an array of constitutional protections in their dealings with administrators and liability law was becoming more expansive, the courts sought to establish a better balance between the governmental requirement of efficient and effective administration, on the one hand, and the need to deter violations of individuals’ rights and compensate for them, on the other. So remarkable had the changes in liability and constitutional law been that, by the 1970s, the concept of “absolute” immunity for most public officials was clearly out of place.
During the 1970s, the Supreme Court used two legal vehicles to redefine the liability of public administrators. First, in Bivens v. Six Unknown Named Federal Narcotics Agents (1971), the Court held that federal officials could be liable, directly under the Constitution, for breaches of individuals’ Fourth Amendment rights. The Court reasoned that the Fourth Amendment gives victims of unconstitutional federal searches and seizures a constitutional right to sue the officials involved for money damages. Subsequently, the Court ruled that similar rights to redress exist under the Fifth and Eighth Amendments (Carlson v. Green, 1980; Davis v. Passman, 1979). Although the Supreme Court has not directly held that individuals can sue federal officials for violations of the First Amendment, under ordinary circumstances such suits can go forward as well (Lee and Rosenbloom, 2005, chapter 2; see Bush v. Lucas, 1983, for an exception).
Second, the Supreme Court dramatically reinterpreted the standards for liability regarding state and local public administrators and officials. The Court resurrected the Civil Rights Act of 1871, which is now codified as 42 U.S. Code section 1983, and generally called “section 1983.” The relevant portion of the act is quoted in the epigraph to this chapter. Although well conceived in the Reconstruction Era (1865–1877) as a means of providing federal judicial protection to former slaves, the act was rendered virtually moribund by a number of judicial interpretations and doctrines that drastically restricted its coverage (Rosenbloom, O’Leary, and Chanin, 2010, chapter 8; “Section 1983 and Federalism,” 1977). In terms of liability, the courts refused to interpret literally the act’s explicit application to “every person who.” Instead, the judiciary reasoned that in writing “every person,” Congress did not intended to override the long-standing absolute immunity at common law enjoyed by many state and local government officials, such as legislators and judges, from civil suits for damages. Consequently, even though such officials might be directly responsible for the violation of individuals’ federally protected rights, they could not be sued for money damages under the act. It was through the redefinition of official immunity during the 1970s that the act became a major force in public administration and U.S. law.
The Supreme Court departed from past interpretations in Scheuer v. Rhodes (1974) when it abandoned the concept of absolute immunity for officials exercising executive functions. Instead, it opted for a “qualified immunity” that afforded many public officials immunity from civil suits for money damages only if they acted in good faith and reasonably. A year later, in Wood v. Strickland (1975, pp. 321–322), “reasonably” was interpreted to mean whether the official “knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights” of the individuals affected.
Bivens, Scheuer, and Wood opened the door to many suits against public administrators by individuals seeking money damages for alleged violations of their constitutional rights. Under the standard for qualified immunity these cases developed, suits could allege that the administrators failed to act in good faith by displaying malice or a reckless disregard of individuals’ rights. In practice, defending against such a charge proved burdensome for the public officials involved. The issue of “good faith” is considered a matter of fact that may be submitted to a jury for determination. Consequently, suits could be drawn out and very expensive to defend. Under such conditions, the process itself could be punishment, and public officials were consequently under substantial pressure to settle out of court, without strict regard to the merits of the charges against them. In an age of crowded dockets, elaborate trials in liability suits against public officials also took a toll on the courts. The Supreme Court sought to reduce these pressures in Harlow v. Fitzgerald (1982), which made it easier for public officials to defend themselves against constitutional tort suits.
The Harlow decision “completely reformulated qualified immunity along principles not at all embodied in the common law” (Anderson v. Creighton, 1987, 645). The new standard for qualified immunity relies on a procedure called “summary judgment” as means of determining whether a suit can proceed to a full trial. A district court judge’s decision regarding summary judgment can be appealed. However, once a decision to grant summary judgment to the defendant public employee or official is final, the case ends. It cannot proceed to a full-fledged trial. Harlow established the following standard for determining whether summary judgment should be granted: “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” (1982, p. 818). The defendant’s motives and good faith are irrelevant at this stage. The key questions are whether the facts of what happened are sufficiently clear to make it unnecessary to determine them through a trial, and, if so, whether the alleged conduct violated clearly established constitutional rights of which the administrator should reasonably have known. The judge grants qualified immunity if he or she concludes (1) that based on the facts, there was no violation of the Constitution; (2) if the Constitution was violated, the law at the time was not clearly established; or (3) even if the law was clearly established, an administrator could not reasonably have known that the conduct involved would violate a constitutional right.
The great advantage of the Harlow approach is that summary judgments are far quicker and much less burdensome than jury rials. The immunity is from suit, not just a defense against liability (Mitchell v. Forsyth, 1985). The Harlow construction applies to federal officials and employees directly under the Constitution and to state and local personnel under section 1983.
THE LOGIC OF LIABILITY: DETERRENCE AND JUDICIAL INFLUENCE ON PUBLIC ADMINISTRATION
When the courts do something as dramatic as overturning the effects of centuries of common law, one is impelled to consider their rationale and the effects of the change. The logic of rejecting absolute immunity in favor of qualified immunity (or liability) is clear. First, the liability under consideration here is personal liability, not the liability of agencies or government entities. Personal liability is viewed by the Supreme Court as an excellent enforcement mechanism. In the Court’s words, “ … the Bivens remedy [that is, official liability], in addition to compensating victims, serves a deterrent purpose” (Carlson v. Green, 1980, p. 21), and the general point has been to “create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights” (Owen v. City of Independence, 1980, pp. 651–652).
The deterrent effect of liability is magnified greatly by the potential assessment of punitive or exemplary damages against public administrators. In Smith v. Wade (1983), the Supreme Court had an opportunity to permit the federal courts to apply a tough standard for subjecting public administrators to such damages. Historically, there have been two general standards for these damages. One is whether the individual found liable acted with malice in violating the other party’s rights, that is, displayed “ill will, spite, or intent to injure” (Smith v. Wade, 1983, p. 37). The other standard is recklessness, or a “callous disregard of, or indifference to, the rights or safety of others” (Smith v. Wade, 1983, p. 37). The Supreme Court allowed the lower courts to use recklessness, which is the weaker of the two. It reasoned that “the conscientious officer who desires … [to] avoid lawsuits can and should look to the standard for actionability in the first instance,” that is, whether the action violated clearly established rights of which a reasonable person would have known (Smith v. Wade, 1983, p. 50). In other words, a finding that compensatory damages are appropriate will often support the assessment of punitive or exemplary damages as well because conduct at issue will manifest at least an indifference to the rights of the injured party. Reliance on recklessness rather than malice makes it easier to use damages to punish public administrators financially and to deter similar unconstitutional behavior on the part of others. Although punitive damages may trigger due process concerns, they are largely open-ended and not technically required to be tightly related to the injury involved (BMW of North America v. Gore, 1996). Consequently, in cases where qualified immunity is not granted, plaintiffs may allege malice (as well as recklessness) in the hope of recovering greater damages.
A second aspect of the logic of liability is more complex. The way that the courts constructed public officials’ qualified immunity enables them to exercise considerable direction over public administration. In effect, the Supreme Court has made knowledge of constitutional law a matter of job competence for public administrators. As it stated in Harlow (1982, p. 819), “a reasonably competent public official should know the law governing his conduct.” But what is that law? In the words of former Supreme Court Justice Lewis Powell, “Constitutional law is what the courts say it is” (Owen v. City of Independence, 1980, p. 669). Consequently, public administrators must take direction from judges, who determine how the Constitution bears upon their jobs.
Moreover, despite the qualifier in Harlow that the rights involved must be “clearly established,” the Supreme Court has not limited liability to instances in which a materially similar or identical administrative action was already ruled unconstitutional (Hope v. Pelzer, 2002). Rather, the concept of “clearly established” extends to constitutional values and principles that should be known by a reasonably competent public official. Even if the constitutionality of some particular act has never been litigated, a public administrator engaging in it may be liable if the state of the law gives him or her “fair warning” that it violates the Constitution (Hope v. Pelzer, 2002). This standard makes it possible to compensate victims of altogether new administrative violations of their constitutional rights.
Overall, therefore, public administrators’ liability promotes two judicial objectives. It is a strong tool for enforcing the constitutional rights established by the judiciary for individuals in their interactions with public administrators. It also enables the courts to exercise greater direction over public administration. The latter judicial interest is also manifested in the courts’ willingness to entertain suits seeking very broad reforms of administrative institutions or processes, such as prisons, public mental health facilities, public schools, and public personnel systems (Chayes, 1976; Horowitz, 1977, 1983; Plata v. Schwarzenegger, 2005; Rosenbloom, O’Leary, and Chanin, 2010).
THE IMPACT OF LIABILITY
It is difficult to assess comprehensively the impact of the change from absolute to qualified immunity. There is a lack of systematic knowledge about this area of the law. It is clear that thousands of suits have been brought against public employees, but less is known about their resolution (Farley, 1989; Lee, 1987; Lee and Rosenbloom, 2005, chapters 2–3). The likelihood of a public administrator losing a constitutional tort suit and paying damages personally appears relatively slim.1 Nevertheless, public managers have been very concerned with potential liability and the costs of legal defense, settlements, and judgments (Friel, 1998; Rivenbark, 1998).
Even if more were known about case resolutions, settlements, and damages, however, it would still be very difficult to assess the overall impact of liability upon public administrative practices. Part of the intent of liability is to change public administrators’ behavior to assure that it complies with constitutional requirements. To the extent that qualified immunity is successful, public administrators will be less likely to violate constitutional rights, and there will be fewer grounds for suing them. For example, police today routinely do recite “Miranda warnings,” and social service and personnel agencies have built constitutional due process into their standard operating practices. It would be surprising to find many constitutional violations in these areas. Nevertheless, there are surely many instances in which individuals whose rights are violated by public administrators fail, for one reason or another, to sue. Consequently, only limited inferences can be drawn from the number of cases filed, the absence of more filings, and the outcomes of cases. But, clearly, liability law is not a dead letter, and the best defense is to know and respect individuals’ constitutional rights (Lee, 2004; Lee and Rosenbloom, 2005).
VARIATION WITHIN THE GENERAL PATTERN OF PUBLIC OFFICIALS’ LIABILITY
There are some exceptions to the current standard for qualified immunity and to the availability of compensatory damages as a remedy for injuries. When public employees are engaged in adjudicatory or legislative functions, they are likely to retain absolute immunity, as do judges and elected legislators (Bogan v. Scott-Harris, 1998; Butz v. Economou, 1978). It is important to remember that absolute immunity pertains to the function, not the official position description. For instance, an administrative law judge will have qualified, rather than absolute, immunity when hiring or disciplining subordinate employees. Necessarily, the functional approach results in some ambiguity, and even some public employees engaged in adjudicatory functions, such as public defenders and members of prison disciplinary committees, do not enjoy absolute immunity (Cleavinger v. Saxner, 1985; Tower v. Glover, 1984).
In Bush v. Lucas (1983), the Supreme Court held that liability suits were an inappropriate remedy for federal employees claiming to have been subject to illegal or unconstitutional personnel actions in retaliation for their exercise of freedom of speech. The Court reasoned that federal personnel law provides for elaborate remedies, including hearings before the Merit Systems Protection Board, for such employees. Therefore, in the Court’s view, because Congress explicitly created these remedies, it would be improper for the judiciary to fashion additional ones through constitutional interpretation. Bush’s broad reasoning precludes constitutional tort suits in federal personnel administration in a wide range of matters. However, where there is no alternative remedy for the violation of constitutional rights, such suits may be appropriate. For example, in Collins v. Bender (1999), the U.S. Court of Appeals for the Ninth Circuit held that a former drug enforcement agent could bring a constitutional tort suit against fellow agents who violated his Fourth Amendment rights by seizing personal firearms from his house without a warrant while he was on administrative leave. The seizure was not a personnel action subject to an administrative remedy. The Collins holding suggests that more viable constitutional tort suits by federal personnel may emerge as an unintended consequence of measures that reduce the civil service and administrative appeals rights of employees engaged in national security, defense, or other functions. Bush, of course, does nothing to prevent nonfederal government employees from using section 1983 as a means of seeking compensatory and punitive damages for personnel actions taken against them in violation of any of their constitutional rights.
Some aspects of qualified immunity are relatively specific to the functions public employees perform. For example, the Supreme Court has been reluctant to trench on police discretion. Consequently, police are unlikely to face constitutional tort liability for conducting high-speed vehicle chases, even when these end in tragedy (County of Sacramento v. Lewis, 1998; Scott v. Harris, 2007), and, as mentioned earlier, making arrests for nonjailable (fine only) minor offenses (Atwater v. City of Lago Vista, 2001; see also Brosseau v. Haugen, 2004, regarding discretion in the use of deadly force). Prison guards also have considerable discretion and, unless they are deliberately indifferent to a prisoner’s safety, are unlikely to be liable for injuries caused by prisoner-on-prisoner violence (Farmer v. Brennan, 1994; Rosenbloom, O’Leary, and Chanin, 2010, chapter 7). More generally, in Wilkie v. Robbins (2007), a case involving federal employees of the Bureau of Land Management, the Court declined to create a “a general provision for tort-like liability when Government employees are unduly zealous in pressing a governmental interest affecting property” because it would invite constitutional tort suits and require the courts to determine when public employees “demanded too much and went too far” (Wilkie v. Robbins, 2007, p. 557).
THE CONSTITUTIONAL RIGHT TO DISOBEY
Public administrators’ potential liability for constitutional torts has generated a concomitant nascent constitutional right to disobey unconstitutional directives. In Harley v. Schuylkill County (1979, p. 194), a federal district court explained that:
The duty to refrain from acting in a manner which would deprive another of constitutional rights is a duty created and imposed by the constitution itself. It is logical to believe that the concurrent right is also one which is created and secured by the constitution. Therefore, we hold that the right to refuse to perform an unconstitutional act is a right “secured by the Constitution … .”
The Supreme Court has not had occasion to consider the constitutional right of public employees to disobey unconstitutional orders. However, the district court’s conclusion appears to be supported by strong policy reasons as well as by constitutional imperative. As Robert Vaughn (1977, pp. 294–295) points out: “Congress and the courts have already adopted the concept of personal responsibility by providing penalties for the wrongful acts of public employees. The courts now have the opportunity to vindicate the concept of personal responsibility by accepting the right of public employees to disobey under appropriate circumstances.” To prevail in asserting a constitutional right to disobey unconstitutional directives, the employee may have to show (1) that the refusal to obey was based on a sincere belief that the action at issue was unconstitutional and (2) that he or she is correct in his or her legal assessment.
In practice, of course, disobedience is likely to be a last resort. Public employees also have a constitutional right to seek to eliminate unconstitutional practices through whistle blowing (Givhan v. Western Line Consolidated School District, 1979; Pickering v. Board of Education, 1968). In modern personnel and management systems, employees will also have the opportunity to discuss their reasons for not wanting to carry out an order with a supervisor, and some resolution short of litigation is highly likely.
CONSEQUENCES FOR PUBLIC PERSONNEL ADMINISTRATION
Public employees’ liabilities for constitutional torts have several important consequences for public personnel administration. First, although such liability conveys great benefits by helping to protect constitutional rights, it also adds to the cost of government. The potential to face suit for constitutional torts makes public employment less desirable. Public personnel management is now infused with constitutional law and potential liability. In the past three decades or so, the Supreme Court decided several cases involving public employees’ challenges to personnel actions allegedly violating freedom of speech or association, Fourth Amendment privacy rights, procedural due process, and equal protection.2 The government plainly could have avoided some of the suits it lost by paying greater attention to clear constitutional doctrines in the first place.3 However, in some cases the law may appear clear to a judge but not necessarily so to a personnel manager. For example, affirmative action became deeply ingrained in the 1980s and 1990s and may still be widely practiced in one form or another in public personnel systems, even though judges relying on the Supreme Court’s reasoning inAdarand Constructors, Inc. v. Pena (1995) and Gratz v. Bollinger (2003) might well find many instances of it unconstitutional (see Naylor and Rosenbloom, 2004).4 In other cases, the law itself may be so unclear that it affords little or no useful guidance. Waters v. Churchill (1994), which involved public employees’ freedom of speech, is probably the preeminent example of just how fuzzy constitutional law can be (Rosenbloom, 1994). The key standard in Justice Sandra Day O’Connor’s plurality opinion is that “only procedure outside the range of what a reasonable manager would use may be condemned as unreasonable” (Waters v. Churchill, 1994, p. 678). To this, Justice Antonin Scalia responded that “it remains entirely unclear what the employer’s judgment must be based on” (Waters v. Churchill, 1994, p. 693).5 Although such a lack of clarity would seem to relieve public personnelists of liability under theHarlow standard, they nevertheless need to follow the case law as it develops in lower court decisions, which may provide “fair warning” that a contemplated action is unconstitutional (Hope v. Pelzer, 2002).
Many public personnel systems protect their employees in liability suits by providing them with legal representation, legal insurance, and/or indemnification. These approaches go a long way toward eliminating the risk of being harmed financially in a lawsuit arising out of one’s performance in public office. Nevertheless, sufficient insurance can be costly, the availability of legal representation may depend upon the specific circumstances involved, and indemnification may be incomplete or unavailable for punitive or exemplary damages. Moreover, any significant lawsuit will engulf one’s time, attention, and energy. Consequently, liability remains an aspect of the public service that may be viewed as a drawback by prospective and current public employees.
Outsourcing public personnel functions and other government work may not reduce this problem. With the exception of the Thirteenth Amendment’s ban on slavery and involuntary servitude, the Constitution does not ordinarily apply to interactions between private parties. However, the Constitution may control the behavior of private organizations and individuals when they engage in public functions or become so deeply entwined with government that they are indistinct from it (i.e., when they engage in “state action”).6 For instance, private physicians on part-time contracts to provide health care to prisoners and privately employed prison guards can be held liable for violating the Eighth Amendment’s ban on cruel and unusual punishment (Richardson v. McKnight, 1997; West v. Atkins, 1988). Moreover, they have no immunity—either absolute or qualified—in such suits (Richardson v. McKnight, 1997).7
Unfortunately for those making human resource management decisions in areas of outsourced government work, the law regarding state action is notoriously unclear (Brentwood Academy v. Tennessee Secondary School Athletic Association, 2001; Lebron v. National Railroad Passenger Corporation, 1995). There is a great deal of uncertainty regarding the specific characteristics of personnel functions or public–private partnerships that might make the Constitution apply to outsourcing arrangements. Perhaps the leading candidates for triggering state action doctrine are background investigations, which can involve Fourth Amendment privacy concerns, and designing promotional exams for public employees, which can potentially raise equal protection concerns.8
Second, public personnel systems will have to take greater responsibility for teaching public servants to be constitutionally competent (Rosenbloom, Carroll, and Carroll, 2000). This is especially true if more variation in constitutional tort law continues to develop as a result of judicial efforts to tailor qualified immunity to the specific functions performed by categories of public employees, such as police and prison guards. The public administrator’s best defense against liability for constitutional torts is reasonable knowledge of the constitutional rights of those individuals upon whom his or her official actions bear. Universities can teach broad constitutional principles, values, and reasoning in their Master of Public Administration programs, but they are not well suited for teaching the detailed constitutional law that controls specific jobs, such as that of a social worker or Bureau of Land Management employee. Constance Horner, former director of the U.S. Office of Personnel Management (OPM), recognized the important role that personnel agencies can play in constitutional education by calling for “constitutional literacy” among higher-level federal employees (Horner, 1988). In 2004, OPM director, Kay Coles James, followed suit by highlighting the importance of the oath that federal employees take to support the Constitution (Barr, 2004). Local governments, in particular, should systematically follow constitutional law cases and integrate new rulings into their training and operational manuals. In City of Canton v. Harris (1989, p. 390), the Supreme Court held that a local government may be held liable for violations of constitutional rights caused by its failure to take “reasonable steps to train its employees.”
Finally, education and training in personnel and human resources management for the public sector should specifically and comprehensively cover the constitutional rights of public employees and applicants. Public servants have extensive constitutional rights to freedom of speech, association, privacy, procedural due process, equal protection, and liberty (Rosenbloom, 1971; Rosenbloom and Carroll, 1995; Rosenbloom, O’Leary, and Chanin, 2010). Therefore, virtually any public administrator who engages in hiring, promoting, disciplining, or evaluating subordinates may potentially violate an individual employee’s constitutional rights. Traditional personnel policies as well as those of the new public management and reinventing government movements, which heavily emphasize cost-effectiveness, should be tempered by substantial attention to public employees’ constitutional rights. Personnelists who are poorly trained in the constitutional aspects of public employment will not be well positioned to develop policies that secure the due process, equal protection, privacy, and other constitutional rights of public employees.
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1.Yong Lee (1987) identified approximately 1,700 cases in the odd years from 1977 to 1983. This figure pertains only to reported cases. The number of unreported federal district court decisions in official liability cases is unknown, but presumably substantial. From 1993 to 1998, 7,000 federal employees sought legal representation by the Department of Justice, but only 14 were ultimately found personally liable in court (Friel, 1998, p. 1). Lee (1987, p. 169) lists the mean awards as follows: 1977, $48,552; 1979, $14,711; 1981, $63,031; 1983, $92,411. See also Yong Lee (2004) and Yong Lee and David H. Rosenbloom (2005).
2.Successful First Amendment challenges include Chicago Teachers Union v. Hudson (1986) (nonunion employees in bargaining unit cannot be coerced to pay for a union’s nonrepresentational activities, including political activities, and a procedure for resolving amounts in dispute is required); Rankin v. McPherson (1987) (remark by probationary employee in constable’s office expressing hope that next assassination attempt on President Ronald Reagan is successful is constitutionally protected and cannot be the basis for dismissal of a low-level probationary employee with data entry responsibilities and little or no contact with the public); Rutan v. Republican Party of Illinois (1990) (partisan affiliation or support is an unconstitutional basis for personnel actions involving ordinary public employees’ promotion, training, assignment, and similar actions, as well as hiring and firing); Waters v. Churchill (1994) (speech-related dismissals require reasonable belief that employee made alleged remarks); United States v. National Treasury Employees Union (1995) (provision banning federal employee acceptance of pay for nonjob related published and other expression violates free speech/press). Fourth Amendment decisions include O’Connor v. Ortega (1987) (administrative searches and seizures in public workplace must be reasonable in inception and scope if employee meets threshold test of having a reasonable expectation of privacy under the circumstances involved); National Treasury Employees Union v. Von Raab (1989) (suspicionless drug testing of some categories of customs employees is constitutional). Procedural due process violated by dismissal from civil service job without prior notice and opportunity to respond (Cleveland Board of Education v. Loudermill, 1985). Equal Protection Clause prohibits dismissal of nonminority in violation of seniority rights to further equal employment opportunity/affirmative action (Wygant v. Jackson, 1986).
3.Cleveland Board of Education v. Loudermill (1985), is perhaps the clearest example of an instance in which a minimal, almost costless, procedure could have obviated a suit. Wygant v. Jackson (l986), occurred because a school board agreed to race-based dismissals that would almost certainly result in litigation and, in high probability, loss as well. The statutory ban in United States v. National Treasury Employees Union (1995), was exceptionally broad and the administrative rules pursuant to it were so complex as to appear irrational and arbitrary.
4.In Adarand Constructors, Inc. v. Pena (1995), the Supreme Court held that all racial classifications are constitutionally suspect and subject to strict judicial scrutiny. To be constitutional they must serve a compelling governmental interest in a narrowly tailored fashion. See also Grutter v. Bollinger (2003) and Gratz v. Bollinger (2003).
5.The question was whether a public employee could be disciplined for what her supervisor thought she said or only for what she actually said. There was no majority opinion on the Supreme Court, but the guiding principles appear to be that (1) the employer must reasonably investigate what the employee may have said, and (2) the employer must really believe the employee said it before imposing discipline.
6.“State action” means governmental action, regardless of whether at the federal, state, or local governmental levels.
7.Private organizations that become state actors by working for federal agencies are not subject to constitutional tort suits for money damages (Correctional Services Corporation v. Malesko, 2001). At the state and local levels, private organizations that are state actors can be sued under section 1983.
8.See Ricci v. DeStefano (2009), which involved equal employment opportunity law that closely tracked equal protection analysis in constitutional law.