The Public Employee and His Government: Conditions and Disabilities of Public Employment

Abstract

Even before Mr. Marbury, the public employee and his government have frequently found themselves on opposite sides of the counsel table. Not that public employees are a particularly litigious lot. Faced, however, with the willingness of administrators to deal with them politically and the unwillingness of legislators to protect them adequately, their resort to the courts was inevitable. But the courts also often provided inadequate protection. Decisions which combined ancient concepts with more than a touch of political realism accorded scant recognition to the substantial interests of the ever-growing number of public employees. In recent years, the traditional cliches in at least two areas of the law of officers and employees appear to have undergone if not an agonizing, at least a searching, reappraisal. These areas, the subject of this paper, are: first, the constitutionality of conditions of public employment, such as restrictions against political activity, invoking the privilege against self-incrimination and joining certain organizations; and, second, union activity by public employees.