Public employment reforms and constitutional due process

In recent years, state legislators and public administrators have exhibited a strong interest in personnel reforms aimed at increasing flexibility in human resource management. These reforms reflect a shift in emphasis from centralized control of personnel matters to decentralized discretion and managerial accountability (Coggburn 2000; Carnevale and Housel 2001). Proposed personnel reforms often involve: (a) the elimination of grievance procedures for terminated or demoted employees and the establishment of an at-will employment relationship, and (b) the decentralization of personnel decisions to allow managers in line agencies to exert greater authority over policy related to hiring, pay, and promotions. According to proponents, such personnel deregulation will increase governmental efficiency by allowing managers to remove unsatisfactory employees more easily, and by reducing managers' reliance on centralized bureaucracies in the process of hiring, promoting, compensating, and dismissing employees (see Maranto and Condrey 2001). In effect, advocates seek to promote efficiency by reducing procedural protections for employees and potential employees in the hiring and firing process. These reforms do come with some costs, however, both for employee and employer. It has been argued that reform movements in public administration fluctuate between enhancing either rationality or responsiveness in agency decision making (West 1984). Administrative due process serves to structure bureaucratic discretion and enhance the rationality of decisions rendered by unelected agents by ensuring that those decisions are not arbitrary or discriminatory. At the same time, however, the judicialization of administrative process "militates against efficiency, economy [and] managerial effectiveness" (Rosenbloom 1983, 517). As Rosenbloom points out, the legal approach to public administration, with its focus on procedural due process for individuals, emphasizes the protection of individual rights and liberties, at times even at substantial cost to the public fisc and to administrative efficiency (Rosenbloom 1983; see also Rosenbloom, Carroll and Carroll 2000, 128-132). Yet efficiency-though desirable-cannot be viewed as a moral value or an end in itself, since efficiency is relative: what is efficient with respect to one value dimension is inefficient with respect to another (see Rosenbloom et al., 128, quoting Dwight Waldo). Indeed, some inefficiency may be necessary in a constitutional democracy, where the discretion of unelected administrative agents must be constrained in order to preserve other values, such as individual rights or equitable government practices toward citizens. In this chapter, we consider the legal implications of recent calls for personnel reform in the public sector, with particular emphasis on concerns for employee due process rights under the federal constitution.