Evaluating employees

MARK STEIN markstein at prodigy.net
Thu Jun 1 12:13:50 PDT 2006 

If we want government employees to be able to do their jobs in the face of political pressure, it is not enough to let them sue for unconstitutional discharge (or to let the voters substitute leaders and maybe substitute another set of political pressures).  Government employees must be protected by civil service, with truly neutral hearing officers, and must be able to join unions.

Mark

Scott Gerber <s-gerber at onu.edu> wrote: As someone who believes that, unfortunately, most power is abused, that 
pretext is the coin of the realm, etc., I'm sorry to say that I think 
Eugene Volokh and Mark Scarberry are probably correct in their 
responses to Mark Graber's compelling posts .  The available check is 
to hold the abusive supervisors accountable during election cycles, but 
that, I'm afraid, almost never happens.  It's difficult to control 
power, as our constitutional history makes clear.
Scott


Volokh, Eugene wrote:


> Well, surely the government will always have a reason that it
>could give, and it will usually be a reason that sounds reasonable to
>some people.  But of course the employee could argue that the reason is
>a pretext, or that the reason is actually unreasonable, and the jury --
>presumably educated by the parties' arguments about what's reasonable
>for lawyers to argue in this or that area of the law -- should so hold.
>
> Now perhaps the government should have to bear the risk of
>litigation over the reasonableness of its evaluations whenever it
>disciplines -- or fails to promote -- an employee based on the opinions
>expressed in his work product.  My point is simply that this would cover
>a *vast* range of government employment decisions.  Whenever a
>government employee evaluates things for a living, and his managers
>judge the employee based on those evaluations, there'll be a credible
>First Amendment claim that they should have judged him otherwise.
>
> Eugene
>
>> -----Original Message-----
>> From: Mark Graber [mailto:MGRABER at gvpt.umd.edu] 
>> Sent: Thursday, June 01, 2006 10:24 AM
>> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
>> Subject: Re: Evaluating employees
>> 
>> 
>> I think there is much to be said for Eugene's point, but the 
>> real issue in the case is whether the government needs to 
>> make any showing at all for sanctioning an employee for an 
>> opinion that the government employer asked the employer to 
>> make.  One might well put the reasonableness test on the 
>> other shoe.  The first amendment may permit employees to be 
>> sanctioned for expressing opinions in the line of duty that a 
>> reasonable person might conclude were either misguided or 
>> inappropriate.  But anytime government sanctions an opinion, 
>> government ought to have a reason.
>> 
>> Note, I also think it the case that government ought to have 
>> a reason for any action.  This is the due process clause 
>> Professor Scarberry noted.  I would just add that even in the 
>> due process argument is wrong, special reasons exist for 
>> requiring a reason when opinions are sanctioned.
>> 
>> MAG
>> 
>> >>> "Volokh, Eugene"  06/01/06 1:08 PM >>>
>>  I much sympathize with the criticisms of the Garcetti 
>> v. Ceballos result -- I think this is a really tough case.
>> 
>>  Yet I keep wondering:  How are supervisors supposed to 
>> evaluate (for instance, for promotions, one of the things 
>> that Ceballos says he was denied in this case) employees 
>> whose job it is to write memos to them?  Based, I take it, on 
>> the content of the memos, and on whether the supervisor 
>> thinks the memos were thoughtful, were temperate, showed good 
>> judgment in evaluation of the facts, showed good judgment in 
>> recommendations for action, and so on.  In the abstract, I 
>> think we'd agree that a person shouldn't be faulted for a 
>> reasonable and civil memo
>> -- but whether a particular evaluation of the facts or 
>> recommendation for action was reasonable is a matter on which 
>> reasonable people would routinely differ.  
>> 
>>  If the case had come out the other way, how would a 
>> manager be able to evaluate an employee without concern that 
>> the evaluation would lead to a First Amendment lawsuit?  Is 
>> the manager who's deciding whether to promote a subordinate 
>> just supposed to not consider against the subordinate any 
>> misjudgments that the manager thinks the subordinate has made 
>> in his memos, so long as the supposed mistaken suggestions or 
>> evaluations are nonetheless reasonable and expressed civilly?
>> 
>>  Eugene
>> 
>> > -----Original Message-----
>> > From: conlawprof-bounces at lists.ucla.edu
>> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Mark Graber
>> > Sent: Thursday, June 01, 2006 9:44 AM
>> > To: conlawprof at lists.ucla.edu 
>> > Subject: RE: Garcetti v. Ceballos
>> > 
>> > 
>> > My sense is that this is the crucial paragraph in the
>> > Caballos opinion.
>> > 
>> > 
>> > "The controlling factor in Ceballos' case is that his
>> > expressions were made pursuant to his duties as a calendar 
>> > [deputy. See Brief for Respondent 4 ("Ceballos does not 
>> > dispute that he prepared the memorandum 'pursuant to his 
>> > duties as a prosecutor'"). That consideration -- the fact 
>> > that Ceballos spoke as a prosecutor fulfilling a 
>> > responsibility to advise his supervisor about how best to 
>> > proceed with a pending case -- distinguishes Ceballos' case 
>> > from those in which the First Amendment provides protection 
>> > against discipline. We hold that when public employees make 
>> > statements pursuant to their official duties, the employees 
>> > are not speaking as citizens for First Amendment purposes, 
>> > and the Constitution does not insulate their communications 
>> > from employer discipline."
>> > 
>> > [Back to me]  Note, contrary to Professor Rosenthal, there is
>> > no issue concerning whether Ceballos simply expressed his 
>> > opinion, honestly and civilly.  The rule of Ceballos is that 
>> > a government employee who expresses an opinion in the line of 
>> > duty may be fired no matter how reasonable and civilly 
>> > presented the opinion.  I confess to thinking this a first 
>> > amendment issue, the rule being that when a government 
>> > official asks for an opinion, reasonable reasons cannot be 
>> > sanctioned. 
>> > Should not matter whether the context is educational or not.  
>> > If Mr. Ceballos's supervisor wanted a particular position 
>> > supported, he should have told Ceballos to support that position.
>> > 
>> > Mark A. Graber
>> > 
>> > 
>> > >>> "Scarberry, Mark" 
>> > 06/01/06 12:28 PM
>> > >>>
>> > I think Mark Graber's post is more of an argument for a
>> > recognition of a property interest in a government job and a 
>> > corresponding right not to lose that job absent due process 
>> > of law than it is an argument for protection of the 
>> > employee's first amendment rights. 
>> > 
>> > Mark S. Scarberry
>> > Pepperdine University School of Law
>> >  
>> > 
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--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/
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