Many people, including some commenters on my most recent post, don't see why we should ever fire government officials because of their political and ideological views. Even if an official is a racist, homophobe, communist, etc., perhaps they should not be fired for this unless and until there is proof that their objectionable views affect their job performance. In some cases, this may well be the right approach - particularly if there is little opportunity for the official to implement his biased views or if the job is an important one and it is hard to find an equally competent replacement.
However, there is good reason to fire officials for their views in at least some situations. In some cases, the "wait and see" approach is simply too dangerous. For example, if a key CIA operative is revealed to be an adherent of Al Qaeda's ideology, it is theoretically possible that he will carry out his duties effectively despite his views (e.g. - perhaps he cares more about career advancement than about advancing his views). But given the grave risks involved, it would be foolish to wait and see. Even where matters of life and death are not involved, the costs of ignoring an official's views might still be high. For example, if we do not fire a racist official in a position to discriminate against African-Americans, he might take actions that expose the government to expensive liability suits and possibly poison the state's relationship with the black community. Even if he is later fired after the fact, the damage he has done might difficult or impossible to repair.
Along these lines, it is interesting that there is far less controversy about hiring officials based on ideological views than about firing. For example, nearly everyone takes it for granted that a Republican administration will appoint mostly conservative officials, while a Democratic one will appointly most liberals. The administration could engage in ideologically neutral hiring and later fire those officials whose views lead them to take actions contrary to the administration's agenda. But few would argue that that is the right approach to hiring in government. If this is true as to hiring, why not firing as well?
Not all officials with deeply objectionable views should be fired. Whether or not do so depends on the likelihood that they can cause serious harm, the difficulty of finding a competent replacement, and other similar considerations. But such firings should not be categorically rejected.
Since I am a professor at a state university, it is inevitable that some readers would like to know the implications of this argument for the hiring of academics at state institutions. In my view, ideologically neutral hiring is far more desirable in academia than in most other types of government employment because one of the functions of academics is to engage in wideranging debate and research, a function that would be undermined by ideological hiring criteria. On the other hand, the job of most other appointed officials is to implement laws enacted by the legislature or carry out the policy agenda of their elected superiors. Thus, for most government jobs, there are likely to be greater benefits and less harm from ideologically based hiring and firing than in the case of professors. Is that a self-interested distinction? Quite possibly. But I still think it's valid!
Related Posts (on one page):
- Is there Enough Libertarian and Conservative Support for Gay Rights for it to Matter?
- Why Ever Fire Public Officials for their Views?:
- The Racism Analogy:
- Conservatives, Libertarians, and Slippery Slope Concerns about the Gay Rights Movement:
- Firing a Washington Metro Board Member for Anti-Gay Speech:
- Washington Metro Board Member Dismissed for Anti-Gay Remarks in Same-Sex Marriage Debate:
True enough, but we aren't willing to apply those principles in all situations. Any alcoholic is more likely than a non-alcoholic to perform poorly at his job, yet we cannot fire someone merely for being an alcoholic. There must be evidence that his alcoholism is affecting his job performance. Similarly, a racist is more likely than a non-racist to abuse his power to the disadvantage of certain groups, but it's not a certainty.
Are you sure that is true for political apointees? It was my understanding the president could fire members of his cabinet just because he didn't like the way their tie looked.
It might be desirable for other reasons, but the ideological diversity reasoning works both ways. If you have 50 faculty, a truly neutral policy gives you a good distribution. But if you could have only 5 (say)
sociologists and there were 5 major ideological schools of thought, you'd definitely need to pick by ideology to get one of each in your collection, if that really was the main goal. Also, a case could be made that if it's going to happen anyway, it's healthier to have it out in the open - it saves applicants from wasting their time, and the dominant group will probably feel the need to allocate a few positions to the other side(s) for appearance's sake if they have to explicitly state what they're looking for.
While the original story relates to a political appointee, the vast majority of government employees are not politically appointed and therefore do not have to pass any sort of litmus test.
For the federal government, General (or Civil) Service employees are expected to perform their jobs regardless of their personal views of the politics of the Administration. They support the policies through their work, if not the politics in their minds.
This is a design highlight--or flaw, if you want to look at it that way. Because these ostensibly apolitical employees provide continuity across administrations (and consequently across policy shifts), they bring an added value. But problems do arise when the employee becomes something other than apolitical.
The solution, if suasion is not sufficient, is to have tightly designed job descriptions that require evenhanded production in a measurable way. No government entity wants to get involved in the feces-fights that encompass litigation about suppression of speech. The PR is often more expensive than the original breach of trust.
But for political appointees, the "wrong tie" analysis is about right, though as the given example demonstrates, it too can carry a PR cost.
I don't believe there's any church doctrine which mandates that a layperson discriminate against gay people in any way. There's no conflict between his religion and treating homosexuals fairly.
I can't find a way to phrase what I'm saying, so here's an example - say that the manager of a DMV branch (Department of Motor Vehicles, for all readers and commenters with crazy names for that department in your state) admits to being a racist. And talks about it publicly on talk shows. And writes books about it. In fact, let's say he's a member of the Klan, and wears a white hood on his days off. Let's also say that his job had no possible way whatsoever to discriminate based on race - a stretch, of course, but bear with me for my example. (Say that all his interactions with his staff members or with the public were behind a wall and people were only identified by number, or something equally absurd.)
Does the public still have a right to feel "comfortable" if they ever have to interact with the DMV? If a black person were to go get their license renewed, they may very reasonably feel uneasy knowing that the branch they're about to enter is run by a person who wants them to die. If the government official's views cause concern with the public, and in effect prevent people from feeling comfortable interacting with the government when they'd otherwise feel fine, is that cause for firing?
In your hypothetical, the government official has no ability to actually discriminate against the public. If a person feels uneasy about the government official under these circumstances, that unease is irrational, and we need not take it into account when setting public policy.
You might argue that the government official should not be able to directly antagonize members of the public and that some things are so offensive that it's not someone's fault for feeling uneasy because of them; but I'm hesitant to apply this to all statements made over the course of a politician's career as opposed to him directly insulting the guy while he's standing in the DMV right now.
And consider this hypothetical Suppose I'm gay, and the government official praised Allah last week rather than making an anti-homosexual statement. However, I know that belief in Allah is correlated with hatred of homosexuals, and therefore I feel uneasier around him than I would have had he not made the statement. I assume you think the government official should not be fired. However, if the ability of the official to discriminate doesn't matter, and unease is enough, then why shouldn't he be fired?
Particularly pertinent to the constitutionality of the practice of patronage dismissals are Keyishian v. Board of Regents, 385 U.S. 589 (1967), and Perry v. Sindermann, 408 U.S. 593 (1972). In Keyishian, the Court invalidated New York statutes barring employment merely on the basis of membership in "subversive" organizations. Keyishian squarely held that political association alone could not, consistently with the First Amendment, constitute [427 U.S. 347, 359] an adequate ground for denying public employment. 12 In Perry, the Court broadly rejected the validity of limitations on First Amendment rights as a condition to the receipt of a governmental benefit, stating that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests - especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to `produce a result which [it] could not command directly.' Speiser v. Randall, 357 U.S. 513, 526 . Such interference with constitutional rights is impermissible...
People who make supposed "hate" statements must have the same rights as those who make any other statements. It may be interesting to consider the action of Mayor Bloomberg in connection with statements of Umar Abdul-Jalil. If he can keep his job, why not Smith?
Sheesh. I thought we sort of resolved that when we got the Constitution. But I guess that notion has been slipping away for years now.
Since, in general the law in the United States treats employment as at will, private employers can fire employees for any reason or no reason at all (with limited exceptions). Government employees on the other hand, are at least somewhat protected by Constitutional Rights that are not applicable to private employers and cannot be fired merely for what they say.
Of course, political appointees of the Government, serve at the pleasure of the executive, and the executive may fire them at any time for any reason. That is a purely political decision. As political appointees and the public face of the administration, such officials' pronouncements are always reflected back on the administration.
And President Bush supposedly fired Donald Lindsay for being fat and not exercising.
Hmmm, he was on a program advocating just that - denying gay citizens marriage equality because of his religious opinions.
But as I mentioned in another thread this is really about a government official using his office as a bully pulpit to express a personal opinion unrelated to his job. He was identified by his job title on the program and I doubt he would have been invited if he didn't hold the government position he did. Under those conditions he can rightfully construed to be a government representative and his statements should be given in that light.
I wonder what the general consensus is on here for who can justifiably be fired for being a Communist.
In this case, his conduct was punished - specifically, the reckless action of flapping his gums on cable TV. If he'd simply "thought" homosexuals were deviant and never said anything about it, no problem would exist.
I believe if you openly advocate the violent overthrow of the US government - or belong to a group that does - you can be fired. At the very least, if you have a clearance, kiss that goodbye.
When applying for a security clearance, they ask you to list all organizations you have ever belonged to. I am sure membership in the Communist party would raise a red flag (pun intended), but I'm sure it would no longer be an absolute bar as I it once was (as long as it was a long passed "youthful indiscretion").
And anyone who thinks that the American Communist party was ever a real threat to this country, at least since the very early 1950's, is truly paranoid.
Beyond that, Enoch is exactly right as to what his conduct was. Is it rational for a high-level public official that serves at the pleasure of the governor to think that he can insult a portion of the law-abiding, voting public in a high-profile way, but then suffer no adverse employment consequences, when the governor may actually want votes from gays and lesbians, and their friends, families, and supporters?
And I'm always intrigued by that slice of conservatives that are all for at-will employment and no intrusion on the employer's right to fire employees for any stupid reason at all, except when it appears that the reason for the firing was because the employee expressed a right-wing view. Is that the only time firing should be subjected to a just-cause analysis?
But that is not what Ilya's said in the previous posts. IN ADDITION to thinking Miller should be fired for his act (i.e. speaking) Ilya feels anyone with Miller's "views" (i.e. Catholics, or at least those who agree with the Church's teachings) should be fired just because they have the view, regardless of whether they speak it or not because, again quoting Ilya "There is good reason to assume that a Metro Board member with Smith's views would be less likely to enforce policies against antigay discrimination in public transport than one who is not a homophobe. "
Notice how easily Ilya equates Catholic with homophobe.
The "logic" is simply Catholic = homophobe = ineligible to serve in government.
Or put another, more direct way
"There is good reason to assume any government official with Catholic views would be less likely to enforce policies against antigay discrimination than one who is not a homophobe."
I guess Catholicism or even having Catholic THOUGHTS and VIEWS is "too dangerous" (again Ilya's words).
Gee, here I was thinking the U.S. and most state constitutions prohibited religious tests for office or employment.
In both cases, however, I would have rather seen the chief executive stand by his subordinate instead of caving in to the forces of PC.
As I also asked elsewhere, suppose that a member of Bush's cabinet calls Evangelical Christians "Jesus Freaks" in a public forum. Bush asks for this person's resignation. Has Bush caved into the forces of PC?
Personally, I think one of the valid reasons why high-level executive appointees should be political appointees and subject to such firings is that part of their job is to promote the policies of the administration in question. And I think it is obvious that whether it should be this way or not in an ideal world, in the real world this sort of controversy can undermine the effectiveness of an official with respect to this role. In that sense, to me it doesn't matter whether the controversy arises from an ideological statement, a sex scandal, or anything else--the chief executive has a valid interest in choosing officials who are not subject to that sort of distraction.
The problem is that gay people and the Catholic hierarchy have a very different idea about what it means to treat gay people "fairly."
To get back to the point of the post. The fired guy had a high-level job, and he embarrassed the person responsible for his job. That gets you fired from high-level government jobs (and low-level private sector jobs).
Furthermore, "No clear line can be drawn between policymaking and nonpolicymaking positions. While nonpolicymaking individuals usually have limited responsibility, that is not to say that one with a number of responsibilities is necessarily in a policymaking position. The nature of the responsibilities is critical."
I do not see how Smith's views on homosexuality would have any relevance to his position as a member of the Transportation Board. Therefore, I think that if he were to contest his firing through the Federal court system, he would win hands down.
If, for example, Tony Snow said something that George Bush found offensive or even embarassing, he would fire him and only the lunatic fringe (right and/or left) and contrarians would protest. In fact, it would be an abbrogation of Bush's authority NOT to fire Snow in this example.
Likewise, I think had Governor Erlich(sp?) not fired this idiot, my estimation of him would have diminished for it would have shown tacit approval of the moron's statement.
I agree that the situation would be quite different if Smith were, say, a train conductor. But as a person appointed directly by the governor, who serves at the pleasure of the governor, and who is supposed to represent the governor's state at the transit board, I see no bar at all to his dismissal.
Not even when his duties include "The Metro directors oversee a $1 billion operating budget and nearly 10,000 employees. They set policy for the nation's second-busiest subway and fifth-busiest bus system...."?
Some of those 10,000 employees are gay, or have gay family members. Again, would you wonder why there was an issue if a member of the board went on television to specifically call black people "deviant" and argue against their equal treatment under the law?
No, maybe it has nothing to do with the buses and trains, but it sure has a lot to do with the employees who run them. And it also makes it look pretty solid as though there is no reason to expect him to work to treat his employees equally.
Maybe firing is extreme, and he should only have been reprimanded. Then again, maybe this is not the first incident like this. I don't know.
Smith said his comments had been part of a discussion about a proposed ban on same-sex marriage. "The comments I make in public outside of my [Metro board job] I'm entitled to make," he said. His personal beliefs, he said, have "absolutely nothing to do with running trains and buses and have not affected my actions or decisions on this board."
Now please consider Umar Abdul-Jalil, the head of Islamic chaplains in the New York City Department of Correction said in a recent speech that the "greatest terrorists in the world occupy the White House," Jews control the media, and Muslims are being tortured in Manhattan jails. What happended to him? He didn't get fired. Two weeks suspension without pay and a reproach for not between statements he made in his offical capacity and statements he didn't. There ia a story about this in the NY Times for March 15, and the Times approved of the wrist-slap.
Therefore, the question is whether the government should have someone on his staff with those views. Some governors may think that because he views don't have anything to do with his job, he can remain in the position. Some other governors may want all people on his staff to share similar views.
in other words, the governor has the sole right and ability to decide how he wants his officials to act. Therefore, whatever the governor does is by definition correct, whether we agree or not. If you don't agree, elect a governor who is confortable having an anti-gay person running the trains.
Can you point out catholics who are not anti-gay?
This persecution complex you have is really absurd. It's like a Catholic elephant being afraid of a secular mouse.
Why on earth should Catholics who make anti-gay comments be free from censure or not suffer the consequences of their speech? What makes Catholics so special that everyone else must bow down to them?
Now, whether he SHOULD fire a person for his comments is something that we can debate all day long. But we are talking in the wind.
There was a time that this same sort of reasoning would have allowed firing someone for what they did in their off hours--you know, going to public restrooms and looking for random sex with other men.
But homosexuals aren't worried about that anymore being a basis to fire someone, so they can now rationalize firing people for what they say when they aren't at work.
Almost sounds a bit snippy, Clayton.
Most of the people doing that sort of things are married heterosexual men from what I've seen. Remember while 2.8% of men identify as gay, an additional 2.8% engage in same gender sexual behavior but don't consider themselves gay or even necessarily bi. (NHSLS)
Regardless only a few states (CA, NY, CO, ND) prohibit employment discrimination based on off-work recreational activities for other than various legal substance usage and none protect illegal activities. So if you get caught cruising you still can get fired in most places, caution is advised.
But in this hypo, Bush still isn't standing behind his subordinate. And as for (a)--do you know for a fact that Ehrlich agrees with Smith?
Bottomfish,
It seems to me that Smith's position clearly qualified as a policymaking position. Hence, the rule in Elrod gives him no protection.
How does this have anything to do with this case? The fact that one employer chose not to fire someone for a political statement doesn't mean that another employer can't decide that a different sanction is appropriate. FWIW, I'm certain that the governor would have fired Smith if he called Bush the terrorist-in-chief.
If you want consistency, then it is up to the legislature to come up with a law of just what sort of speech is protected for policy officials, and what is not. Imagine trying to frame that one!
In the case of the governor of Maryland, his action belies his cant about "inclusiveness, tolerance, and opportunity" since it in effect marginalizes the views held by many in his own political party.
For at least a quarter-century, this Court has made clear that even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests - especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." Speiser v. Randall, 357 U.S. 513, 526 . Such interference with constitutional rights is impermissible.
We have applied this general principle to denials of tax exemptions, Speiser v. Randall, supra, unemployment benefits, Sherbert v. Verner, 374 U.S. 398, 404 -405, and welfare payments, Shapiro v. Thompson, 394 U.S. 618, 627 n. 6; Graham v. Richardson, 403 U.S. 365, 374 . But, most often, we have applied the principle to denials of public employment. United Public Workers v. Mitchell, 330 U.S. 75, 100 ; Wieman v. Updegraff, 344 U.S. 183, 192 ; Shelton v. Tucker, 364 U.S. 479, 485 -486; Torcaso v. Watkins, 367 U.S. 488, 495 -496; Cafeteria Workers v. McElroy, 367 U.S. 886, 894 ; Cramp v. Board of Public Instruction, 368 U.S. 278, 288 ; Baggett v. Bullitt, 377 U.S. 360 ; Elfbrandt v. Russell, 384 U.S. 11, 17 ; Keyishian v. Board of Regents, 385 U.S. 589, 605 -606; Whitehill v. Elkins, 389 U.S. 54 ; United States v. Robel, 389 U.S. 258 ; Pickering v. Board of Education, 391 U.S. 563, 568 . We have applied the principle regardless of the public employee's contractual or other claim to a job. Compare Pickering v. Board of Education, supra, with Shelton v. Tucker, supra.
If all of this has been set aside, I would like to see where.
Therefore, an employee of Metro, say a train operator, would be protected by these cases in a way that a high level policy appointment is not. This seems to be a rational way of dealing with these tough issues. The governmor ultimately has the power -- correctly, in my opinion -- to have the type of people speaking for him that he wants. A metro employee doesn't speak for the governor, as he works for the government. The governor is a political animal, however, and is not 'the government.'
But I know Republicans who have sharply critical views of people in the "Christian Right" (or "Christianists", to use Andrew Sullivan's term). So if Bush fires someone who uses the term "Jesus Freaks", isn't he also "in effect marginaliz[ing] the views held by many in his own political party"?
In the end, it seems to me this just comes down to political calculation. If Ehrlich or Bush thinks that what his subordinate said is bad for him politically, then they have exactly the same grounds for firing the person. And I don't see how you can say one or the other decision is somehow more principled.
Bottomfish,
You already quoted the language in Elrod which give you your answer. The Pickering-Connick test requires a balance between the government's employment interests and the employee's First Amendment interests. So, if the government has a sufficiently compelling interest at stake, they can in fact fire an employee for exercising his or her freedom of speech. And in the words of the Court in Elrod, "the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration" gives elected officials a sufficiently compelling reason to fire appointed officials in "policymaking positions".
So, since Smith was in a policymaking position, his interest in freely speaking his mind was outweighed by the governor's interest in ensuring that the implementation of his policies would not be obstructed, and the governor could fire him.
There is also the 'executive discretion' aspect: the executive should have complete freedom to hire and fire policy-level subordinates). And the 'freedom of thought' aspect: should the executive use this power to enforce a particular orthodoxy on subordinates whose work it is irrelevant to?
Is it OK if the governor fires a member of the Judicial Compensation Commission for blogging in defense of veal production? WI it was in favor of 'concealed carry'? WI it was the Governor's Commission on Maryland Military Monuments, for attending an antiwar rally? WI it was a memorial service for the glorious Shahid al-Zarqawi? Where's the bright line?
There is none.
Yes, the governor needs discretion over such employees. But the power should be exercised very cautiously. And the assertion that some particular sentiment justifies summary action is to assert that debate is closed on that issue - which again is very dangerous. Maryland has 273 "executive commissions, committees, task forces, and advisory boards". If the governor was to purge or pack all these bodies on the basis of some opinion test - it would be disastrous.