Federal employees have property rights to their jobs, even the ones you want to fire
Commentary: Career federal (and other public) employees have a property interest in their jobs. It\'s a major distinction with the private sector. It\'s a long ...
In my line of work, I learn something new every day. I’ve been at this a long time, so it’s particularly gratifying to get some insight into something I thought I thoroughly understood. The most recent example came in my latest, more-or-less monthly interview of Merit Systems Protection Board Chairman Susan Tsui Grundmann. Susan is one of those rare people with an exquisite balance of qualities. She seems idealistic and realistic at the same time. She hews to the mission, but retains just a tincture of skepticism. She knows more than she says, a refreshing characteristic. She’s open but discreet. And she has a sense of humor. Tom Temin Grundmann pointed out some things that everyone should know, but need pointing out nonetheless. This fact startled me: Career federal (and other public) employees have a property interest in their jobs. It’s a major distinction with the private sector. It’s a long established fact. But when’s the last time you heard it stated? Grundmann points out this property interest has been affirmed by the Supreme Court through its insistence on due process for removing federal employees or other adverse actions. It requires 30 days notice, followed by the right to an appeal hearing. If an employee does something seemingly criminal for which imprisonment could result, removal requires seven days advanced written notice. This apparatus of due process grew in direct response to the spoils system of the 19th century. However frustrated members of Congress or editorial writers might be by the performance of managers at the Veteran Affairs Department, Drug Enforcement Administration, or Secret Service, those employees have a constitutional property interest in their jobs and are entitled to due process. All of this apparatus doesn’t absolve supervisors from good management, because poor or malfeasant performers can and often are removed from federal employment. The property interest doesn’t translate into immutable tenure. In fact, that was another standout fact in the Grundmann interview. Between 2000 and 2014, 77,000 feds were fired for performance. We don’t know how many else left ahead of being fired. But this fact belies the popular notion that a federal job is a job for life. Grundmann was annoyed that media outlets often mischaracterize how federal civil service due process works. One national newspaper stated, but later corrected, that federal employees removed for cause stay on payroll until MSPB completes its adjudication. That’s flat wrong, Grundmann says. They’re not being paid. Last week I wrote about fed- bashing, and how I’m skeptical that it really is a thing, to use the Buzzfeed-age vernacular. What is a thing is widespread misunderstanding of the rules for federal civil service. That’s why anyone who has an interest in federal civil service, or chooses to carry on that it should be exactly like the private sector should read the MSPB’s new report “new report to Congress. It details the due process and, equally important, the history and court cases behind it. Few federal employees, or anyone, probably remembers James Loudermill. His 1979 dismissal as a security guard from the Cleveland Board of Education ended up at the Supreme Court, which upheld the due-process-from-property-right principle. He might not have been the finest test case. He’d been convicted of grand larceny 10 years earlier, but lied about it on his job application. Justified as the summary firing may have seemed, ultimately he was found to have been denied due process and his property right to his job was upheld by the Burger court.
Tom Temin is host of The Federal Drive, which airs 6-9 a.m. on Federal News Radio (1500AM). This post was originally written for his personal blog, Temin on Tech.
