Does the government, when it is acting as an employer, have different responsibilities than it does when it’s acting as simply the government?
This question is in reference to the case of the blackface-wearing NYC firemen and police officer who are suing to have their jobs reinstated. They were fired after they rode on a parade float titled “Black to the Future: 2098” while dressed in blackface and dragging a mannaequin body behind their float (reminiscent of the Texas dragging death).
Now, it seems to me that there’s a clear distinction between government as employer and government as government.
In the former case, the government has to make sure its employees can do their job and aren’t a detriment, same as any private employer. If I (someone who works for a private corporation) did exactly the same things as these guys, I’m sure I would be (rightly) fired. Look at Jimmy the Greek.
In the latter case, the government as government may not stop people from making such racist displays. Again, if these were a bunch of racist private citizens, KKK members, etc., the government could neither arrest them at or after the time of the display, nor could it force those individuals’ private employers to fire them for expressing such views.
That would be government suppression of free speech. The former would be an employer making sure its employees are effective, not detrimental, members of its organization.
The Fifth Amendment (federal) and Fourteenth Amendment (state and local) say that the government cannot deprive anyone of liberty or property without due process of law. If having a job is considered a property interest (and the courts of the U.S. say it is), then the government cannot fire someone without due process. Exactly how much process is “due” is where the fight in this case will center, but it is clear that, while a private company can often fire people for any reason, or even no reason at all, a government may not, because the government is constrained by the due process language to have at least some rationale for any action which deprives someone of liberty or property, and in most circumstances give the deprivee at least some opportunity to be heard in his own defense.
You draw a distinction between “government-as-employer” and “government-as-government,” but the Constitution doesn’t. It requires the government afford due process whenever it deprives someone of liberty or property; there’s no “out” for the government when it’s acting in non-governmental roles.
The due process isn’t the issue. They were fired by the same process that all other fired city employees go through. The issue is whether the city had the right put them through the process for what they said or did while off-duty, and perhaps whether Giuliani’s statements influenced the outcome of that process . Although I’m not at all sure that they had the right to that process because of the Constitution rather than because of their union contracts or civil service law. Certainly, political appointees (non-civil service positions) are still government employees , but often “serve at the pleasure” of the appointing authority (like the police and fire commisioners).
There is a distinction between “government as employer” and “government as government”. The government as government can only prohibit/punish a few very particular types of speech. (yelling fire in a crowded theater and such). The government as employer can punish other sorts of speech, such as insubordination, speaking publicly about your agency’s policies without authorization while being identified as an employee, or racist or sexist speech while at work. In fact, I don’t think there’s any question that NYC would have the right to fire those men if the float had a sign on it saying “Engine company X” or “X precinct” . The government as government cannot require me to reside in NY State, but NY State as my employer can make it a condition of my employment.(which it does).
What I don’t get about the case is how the fire guy can say that Guiliani didn’t pressure him to fire the men… when that’s exactly what he wrote happened in his own book! I mean, what gives? Isn’t this a pretty clear case of potential perjury?
Well, perjury is a lie under oath that concerns an issue or fact material to the outcome of the proceedings. Whether or not Mayor Guiliani had any role in the firings is immaterial - under either case, the issue is the firing by a government agency.
That said, it was pretty stupid and highly unethical to lie in court, even concerning non-material facts.
As explained to me in recent ethics training for new state employees:
It is essential for the public to trust government employees. As a state employee, I agree to abide by the state ethics policy even on my own time. I cannot run for partsian political office. I cannot engage in outside activities, even volunteer activities, that might interfere with my decision-making at work. I can’t allow a friend who happens to do business with the state to buy me a drink when we are at a conference, even if it is solely in the friendship context. There’s a bunch more rules that I can’t bring to mind – I’ve been shoving a lot of information in my brain in the past few weeks.
Now, I manage grants – not a position of huge public-safety or regulatory responsibility. I’m guessing (and this is just my thought, please correct me if I am wrong) that there are bigger ethics policies for the police and firemen.