NOTE FROM ROBIN: This is the first in a two-part series on the law regarding patronage dismissals in public sector employment by Damon Kitchen, head of our public sector industry group. Damon, welcome to the blog!
It’s election season, and each year, like the dead leaves that fall from the trees, many loyal and long-term employees of vanquished incumbents face the prospect of getting cashiered once the newly elected officials, or their appointees, take office.
We do not suggest public officials lack the right to restructure, implement new ideas, or hire new employees, but we do remind public sector employers that many of their employees have constitutional rights that their private sector counterparts do not enjoy.
Additionally, elected officials, or persons appointed by an elected official, should cautiously exercise discretion and judgment when making employment decisions that adversely affect employees who are part of the predecessor’s regime, as employment decisions motivated by political patronage can be extremely risky. The First Amendment to the U.S. Constitution provides public employees with the right to freely associate (to believe, think, join, and belong). And although that right is not unlimited, there are numerous public officials at state and local levels who have lost First Amendment lawsuits because they made employment decisions based on the actual, or perceived, political views or loyalties of their employees.
“To the victor belong the spoils”
The question of when, and under what circumstances, a public official can take adverse employment action against a subordinate employee because of the employee’s partisan political views has significantly changed over time. For the first 200 years of our nation’s history, the subject of political patronage-based employment decisions drew little attention from the courts.