PUBLIC EMPLOYMENT AND THE SUPREME COURT S 1975-76 TERM

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Public
Employment
and the
Supreme
Court's
1975-76
Term
CARL F. GOODMAN
? Carl F. Goodman is general counsel of the
U.S. Civil Service Commission and adjunct
professor of law at Georgetown University Law
Center. He has previously served with the U.S.
Department of Justice, U.S. Department of
State, and was associated. with the law firm
of Surrey, Karasik, and Morse.
Court has decided more public employ-
ment cases than in any other term within
memory. The justices defined the proce-
dural rights of federal employees who
claim they were the subject of racial, sex,
religious or national' origin discrimination,
dealt a "body blow" to the patronage sys-
tem, examined the procedural and substan-
tive rights of government employees sub-
jected to discharge, considered the long-
standing dispute over residence require-
ments for public employment and, in hold-
ing the Fair Labor Standards Act inappli-
cable to state and local governments, be-
gan a controversy over state sovereignty
whose repercussions on local governmen-
tal employment could be enormous. This
article will attempt to examine this court's
actions as they relate to the public em-
ployment field by putting this term's de-
cisions in the context of previous court ac-
tion.
PROCEDURAL PROTECTIONS
In Perry v. Sindernran and Board of
Regents v. Roth, the Supreme Court es-
tablished the principle that tenured pub-
lic en plovees-those who could only be
isciarged for cause-had a constitution-
ally protected property interest in contin-
ued employment and hence could only be
discharged after notice and hearing.' Non-
tenured employees lacked such interest
and were not entitled to any hearing on
termination, unless termination and the
circumstances surrounding it constituted
a "stigma"; in such case the employees' lib-
erty interests (as protected by the Fifth
and Fourteenth Amendments and con-
strued by the court to include a person's
interests in his or her good name and rep-
utation) were involved and hence a hear-
ing was required.2
More recently, in Arnett v. Kennedy, the
court reaffirmed the principles of Roth and
Perry and held that while such a hearing
The views expressed herein are those of the
author and not necessarily those of the U.S. Civil
Service Commission.
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was re
ire 1 cC not
recede term na- cision in ! Rot) v. OOC-.
q
p
tion.3 In Arnett, Justice Rhenquist, writing
for three justices, was of the view that the
public employees' right to a hearing grew
out of and was defined by the statute which
created tenure rights. The Constitution it-
self did not create property rights-rather it
merely protected rights that were created
through statutory enactment or as a result
of negotiated agreement. In other words,
when Congress provided in the Veterans
Preference Act and Civil Service Act that
certain employees could only be discharged
for such cause as would benefit the effi-
ciency of the service and that this deter-
mination would be subject to post-termina-
tion review, the statute fully defined the
employees rights. A pre-termination hear-
ing was not required because the statute
did not call for it. The employee took the
good (tenure) with the bad (no pre-
termination hearing). In effect, the statute
defined the employees rights and no con-
stitutional principles were implicated.
The majority view in Kennedy was in
favor of post-termination hearing. How-
ever, this majority was only achieved be-
cause two other justices, while disagreeing
with the Rhenquist analysis, agreed with
the conclusion that a pre-termination hear-
ing was not required. These justices were
of the view that once a statute gave govern-
ment employees tenure rights the employ-
ees obtained a constitutional right to a
hearing on discharge. This constitutional
right could not be narrowed or defined by
statute. These justices however, balanced
the employees right to a hearing with the
government's right to an efficient workforce
and concluded that while a hearing was re-
quired, a post-termination hearing was suf-
ficient.
While a majority of the Arnett court up-
held the concept of post-termination hear-
ings, because of the numerous opinions
written, a second majority view emerged
from the case. Namely, six justices held that
once an employee is granted tenure rights
a constitutional right to a hearing emerges.
This second majority view appears to have
suffered a severe setback in this term's de-
Before turning to Bishop, one further
concept must be explored. Public employ-
ees and administrators are well aware of
the substantial difference between the tra-
ditional rights of probationary and perma-
nent employees. Probationary employees
are serving a period of "trial employment,"
they have little or no rights and are subject
to discharge without hearing. Unlike "per-
manent" employees, probationers have no
tenure rights. In Sampson v. Murray, de-
cided in the same year as Arnett v. Ken-
nedy, the Supreme Court recognized the
precarious position of the probationer-
while Kennedy was entitled to a hearing on
discharge, Mrs. Murray was not.' The dis-
tinction between probationers and perma-
nent or tenured employees was of constitu-
tional dimensions. This concept is also
blurred by Bishop v. Wood.
In Bishop, the city manager of Marion,
North Carolina, terminated a policeman's
employment, without affording the employ-
ee either a pre- or post-termination hearing.
The employee had been a member of the
force for some 33 months. Under a city
ordinance policemen serve a probationary
period of six months after which they be-
come "permanent" employees. A permanent
employee in turn may be dismissed by the
city manager "if [he] fails to perform work
up to the standard of the classification held,
or continues to be negligent, inefficient, or
unfit to perform his duties."' A majority of
the justices recognized that on its face the
Marion ordinance could fairly be read as
providing employees with tenure right:
[H]owever, such it reading is not the only
possible interpretation; the ordinance may
also be construed as granting no right to
continued employment but merely condi-
tioning an employee's removal on compli-
ance with certain specified procedures.
Relying on the opinion of the district
judge (rendered prior to Arnett), that the
ordinance did not provide tenure rights
and that the employee "held his position at
the will and pleasure of the city" (which
position was supported by an equally di-
vided court of appeals) the court concluded
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 that "the city many
the adequacef9XR
er's ermination of friu red only if the T educes are not fol-
Ad
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is not subject to judicial review" and no
hearing was required. By construing the
ordinance as not providing tenure, the court
was able to find that no hearing was re-
quired without expressly disturbing its pre-
vious holdings in Arnett, Roth, and Perry.
Thus the rationale of the court is consistent
with these decisions, but, is the court's in-
terpretation of
than strained?
the ordinance anything less
As Justice Brennan points
. petitioner was hired for a "probationary"
period of six months, after which he became
a "permanent" employee. No reason appears
on the record for this distinction, other than
the logical assumption, confirmed by a rea-
sonable reading of the local ordinance, that
after completion of the former period, an
employee may only be discharged for cause.
Bishop, however, raises more fundamen-
tal questions. While, as noted above, the
majority opinion can be reconciled with
Perry, Roth, and Arnett, the district judge's
finding (which the court relies on) that pe-
titioner served at the "will and pleasure" of
the city was based on the fact that the ordi-
nance set out its own procedure for deter-
mining cause and this procedure did not
provide for a hearing. Yet, as noted earlier,
six justices had held in Arnett that once an
employee is granted tenure rights the sta-
tute or ordinance cannot take away hearing
rights. 'It appears that the district court's
analysis was similar to the analysis pursued
by justice Rhenquist in Arnett. However,
that analysis was only supported by three
justices and rejected by. six. As the dissent
in Bishop notes:
The majority's holding that petitioner had no
property interest in his job in spite of the
unequivocal language in the city ordinance
that he may be dismissed only for certain
kinds of cases rests, then, on the fact that
state law provides no procedures for assur-
ing that the city manager dismiss him only
for cause. The right to his job apparently
given by the first two sentences of the ordi-
nance is thus redefined, according to the
majority, by the procedures provided for in
the third sentence and as redefined is in-
was embraced by only three and expressly
rejected by six members of this court in
Arnett v. Kennedy... .
While the logic of the dissent is compel-
ling, the projected demise of Roth, Perry,
and Arnett appears premature. The major-
ity in Bishop was careful to base its ration-
ale on consistency with the six justices'
philosophy of Arnett and not the Rhenquist
approach. What Bishop does indicate is that
merely classifying positions as "probation-
ary" or "permanent" does not resolve the
hearing question. State laws and local ordi-
nances must be carefully analyzed to de-
termine whether they, in fact, create mu-
tual expectations of continued employment
which can only be terminated for cause.
The message for both employer and em-
ployee is clear-once tenure is granted the
Constitution may require a hearing, but the
question of whether to grant tenure is not
of Constitutional dimension, it is discretion-
ary with the state legislature or city council
(and we shall see when we consider Na-
tional League of Cities v. Usery7 it is a
matter of state sovereignty over which the
federal Congress has no jurisdiction or au-
thority) .
The Bishop case is also significant in
what it has to say about the issue of stigma
and the concept of protectible liberty inter-
ests. The policeman in that case was dis-
charged for failure to follow orders, causing
low morale and "conduct unsuited to an
officer." He contended that these reasons
were so serious that they damaged his repu-
tation in the community and hense consti-
tuted a stigma of sufficient proportion to re-
quire a hearing at which the police officer
would have an opportunity to "clear" his
name. All parties agreed that a public em-
ployee is entitled to a hearing if stigmatized
by his employer. The Supreme Court, how-
ever, found no stigma since the police offi-
cer was advised of the reasons orally and
there was no "public disclosure" but while
the majority opinion notes that the reasons
were stated to petitioner orally, the dissent
points out "there is no reason to believe
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i, responder vi no convey t rese ac- onethe the court did not overthrow
tual reasons to petitioner's prospective em- completely the requirement that the regu-
ployers." What the court leaves unresolved lation involved have a nexus to the employ-
is whether formal written communication ment relationship.10 The court did, how-
of charges, such as those here involved, ever, redefine the burden as well as the re-
which finds its way in an official personnel lationship required:
folder, constitutes stigma. The tenor of the
court would indicate that such communica-
tion would not constitute stigma; still, pub=__
lic employers could appear to avoid this
issue by simply noting innocuous grounds
as cause for discharge.
SUBSTANTIVE PROTECTIONS
In two decisions this past year, the court
substantially narrowed the substantive
rights of government employees while
broadening the authority of the government
employer over personnel matters. In Kelley
v. Johnson, the court upheld the right of
the Suffolk County Police Department to
promulgate hair grooming standards for
members of the force.8 While the decision
can be viewed narrowly as one applying
only to a "pari-military" force which needs
"discipline, esprit de corps, and uniform-
ity," the language of the court points to a
broader interpretation:
Respondent has sought the protection of the
Fourteenth Amendment not as a member
of the citizenry at large, but on the contrary
as an employee of the police force of Suf-
folk County, a subdivision of the State of
New York. While the court of appeals made
passing reference to this distinction, it was
thereafter apparently ignored. We think,
however, it is highly significant.
The court, citing Pickering v. Board of
Education and C.S.C v. Letter Carriers as
illustrations of constitutionally permitted
restrictions on First Amendment rights of
public employees, notes:
If such state legislation may survive chal-
lenges based on the explicit language of the
First Amendment, there is surely even more
room for restrictive regulations of state em-
ployees where the claim implicates only the
mere general contours of the substantive
liberty interests protected by the Fourteenth
Amendment.9
This is hardly language restricted to a
pari-military police force.
Having recognized in other contexts the
wide latitude accorded the Government in
the "dispatch of its own internal affairs,"
Cafeteria Workers v. McElroy, 367 U.S.
886, 896 (1961), we think Suffolk Coun-
ty's police regulations involved here are en-
titled to similar weight. Thus, the question
is not, as the court of appeals conceived it to
be, whether the state can "establish" a
"genuine public need" for the specific regu-
lation. It is whether respondent can demon-
strate that there is no rational connection
between the regulation, based as it is on
respondent's method of organizing its police
force, and the promotion of safety of per-
sons and property.
Thus, the state need not demonstrate a
nexus but the employee must demonstrate
the lack of nexus. Further in showing the
lack of a "rational connection" the employ-
ee's burden is increased to proving that the
decision to promulgate such regulations "is
so irrational that it may be branded as
`arbitrary."' just how difficult this burden
is is demonstrated by Quinn v. Muscare,
where the court upheld the suspension for
29 days of a lieutenant in the Chicago Fire
Department for wearing a goatee in viola-
tion of regulations." The Fire Department
had sought to justify the regulation on the
basis that it was a safety measure designed
to insure proper functioning of gas masks.
Relying on Kelley v. Johnson the court con-
cluded that the facts surrounding the safety
justification were "immaterial." Yet even
under Kelley, the safety factor would pre-
sumably be material to a determination as
to whether the regulation was rationally
connected to the employment. After all, the
city had sought to justify its regulation on
safety grounds-was not the employee en-
titled to attempt to show that this rationale
was so irrational as to be branded arbi-
trary?
Kelley and Quinn appear to stand for the
proposition that public employers may set
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 such terAPIS lF Ieet?ee0 4/17
provided only that such terms do not im-
properly violate specific constitutional guar-
anteesr2 or are not so irrational as to be
considered arbitrary. When read together
with Bishop, it seems clear that the court
has substantially broadened the right of the
public employer in connection with its
workforce and correspondingly narrowed
the procedural and substantive rights
of public employees.
The greater discretion in the area of em-
ployee relations which the court is giving
to public employers is demonstrated further
by Hortonville Joint School District v. Ilor-
tonville Education Association." In Horton-
ville, public school teacher negotiations
with the school board broke down and the
teachers went on strike. As a consequence,
the school board, after notice to the striking
teachers and a hearing before the board,
discharged the strikers. Under state law,
the strike was illegal; but the strikers,
while on strike, remained employees of the
state who had tenure rights. Hence, under
Perry and Roth, they were entitled to a
hearing. The only issue before the court
was whether the school board could pro-
vide an unbiased hearing and decision as
required by the due process clause of the
Fourteenth Amendment.
The striking teachers had argued that the
board could not provide an unbiased hear-
ing since it was one of the two parties to
the labor negotiations out of which the
strike arose. The board in turn argued that
its prior involvement in the negotiations
did not disable it from exercising its power
to discharge employees or prevent it from
holding an unbiased hearing.
The court recognized the board's power
under state law to discharge employees and
also recognized that this power could be
taken from the board under Fourteenth
Amendment considerations, but only if the
board "cannot act consistent with due pro-
cess." In defining the parameters of due
process in a case such as this, the court
balanced the teachers' interests against the
state's interest-a process similar to that in-
volved in Pickering v. Board of Education
GkA-RDR&1-1O3: ,DDJO2PI1i1I'OOz@7t;3the
swing justices found that upon a weighing
of the public employees' interest in a pre-
determination hearing and the employer's
interest in maintaining employee eflicieney
and discipline, the employer's interest pre-
vailed and a post-termination hearing suf-
ficed.) In doing so, the court concluded
that the public eii plover's interest-in this
case the obligation to make the policy deci-
sion (in regard to discharge) which would
best serve the interests of the school system,
children in school and the taxpayers-pre-
vailed. The court concluded:
Permitting the Board to make the decision
at issue here preserves its control over school
district affairs, leaves the balance of power
in labor relations where the state legislature
struck it, and assures that the decision
whether to dismiss the teachers will be made
by the body responsible for that decision
under state law.
Thus, the fact that a public employer is
intimately involved in the events leading
up to a decision to discharge does not take
from that employer the authority and re-
sponsibility granted to it by the state legis-
lature (or city council) to discharge em-
ployees. The presumption of honesty and
integrity of the decisionmaker employer
will overcome the presumed bias resulting
from involvement and hence basic due pro-
cess will be preserved.
RESIDENCE REQUIREMENTS
There are three residence questions
which confront public employers: (1) is it
constitutional to require that public em-
ployees live within the jurisdiction where
they are employed; (2) is it constitutional
to require residence within the jurisdiction
for a period of time prior to employment;
and (3) may a jurisdiction require by new
legislation that present nonresident employ-
ees move into the jurisdiction or lose their
jobs? McCarthy v. Philadelphia Civil Ser-
vice Commission answers question (1) yes,
while questions (2) and (3) are left unre-
solved.14
In McCarthy, the petitioner had been a
Philadelphia Firefighter for 16 years, during
 rc~v e~clFL ' i t'2 `)d4W1Ya.G~'IA-RDF~ 100 1,> r0@i141fl@Aek00011'43 important
ni - iclpa ordrn ce requires t rat employ- that these jurisdictions recognize that Mc-
ees of the City of Philadelphia live within Carthy leaves unresolved the issue of
the city. Petitioner moved to a suburban whether newly established residence re-
area (in New Jersey) outside the city and quirements may be imposed on nonresident
was discharged. employees. On the one hand the employee
The basic principle involved in municipal can argue that his or her right to travel or
or state residence requirements is the con- not to travel is impaired because the ordi-
stitutionally protected right of interstate Hance will require travel or giving up em-
travel.'s While the court reaffirms that ployment.'G On the other hand, the juris-
right, it notes that there is a difference be- diction may point out that it is dealing with
tween a condition that a person be a resi- its employees, not with the public at large,
dent "at the time of his application" and and rely on the language of McCarthy:
one that a person have been a resident for
a given duration prior to application. The In this case appellant claims a constitu-
Philadelphia ordinance was not durational tional right to be employed by the City of
in character and hence did not implicate Philadelphia while he is living elsewhere.
There is no support in our cases for such a
the right of interstate travel. Philadelphia's claim.
ordinance required residence at the time of
application and thereafter during employ- EQUAL EMPLOYMENT OPPORTUNITY
ment. The court found such a residency
requirement to be both bona fide and valid. Citizenship
While the court clearly distinguishes the In Sugarman v. Dougall, the Supreme
Philadelphia ordinance from durational Court found New York State's across-the-
residence requirements and notes the gen- board citizenship requirement for public
eral constitutional infirmities of durational employment an unconstitutional violation
residence, it does not decide the issue of its of the Fourteenth Amendment. 17 The court
validity. Indeed, while the general trend held that a citizenship test for public em-
of the cases would point to invalidity of a plovment violated the rights of resident
durational requirement, the court distin- aliens to the equal protection of the laws
guishes the general line of cases by noting: guaranteed by the Fourteenth Amendment.
The court's decision was in line with several
Nor did any of those cases involve a public earlier cases where the court had stricken
agency's relationship with its own employees
which, of course, may justify greater con- state statutes that distinguished between
trol than over the citizenry at large. citizens and aliens.18 However, Sugarman
did not reach federal public employment;
Thus, the court has provided public em- and the Supreme Court, in both Sugarman
ployers with grounds to justify durational and Espinoza v. Farah Manufacturing Co.
residence. Significantly, McCarthy illus- (holding distinctions based on citizenship
trates the same point made by the court in to be outside the scope of the prohibition
Bishop, Kelley, Quinn, and previously by on "national origin" discrimination found in
Pickering and Letter Carriers-government Title VII of the Civil Rights Act of 1964),
may deal differently with public employees specifically left open the question as to
than it can with the public at large and that whether the federal government could uti-
while as individuals public employees have lize an across-the-board citizenship test.'
constitutional rights, as public employees (The Sugarman court had held that a state
those rights are subject to limitations which could limit policy-making positions to citi-
would not be available to the state when zens.)
legislating generally. The federal government has had a citi-
In light of McCarthy, some jurisdictions zenship requirement, in one form or an-
have considered instituting residence re- other, since the late 18th century. The fed-
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 eral
with the passage of the Pendleton Act,
which also created the U.S. Civil Service
Commission. The USCSC, in turn, inune-
diately adopted a citizenship test for com-
petitive appointment and that requirement
has remained basically the same since
then .20
Unlike the states, the federal government
is not subject to the provisions of the Four-
teenth Amendment. While the federal gov-
ernment is subject to the due process clause
of the Fifth Amendment and while that
clause encompasses the concept of equality,
the restrictions on governmental action are
not identical. Moreover, while the states
have no authority under which they may
deal with aliens qua aliens, the federal gov-
ernment has plenary power over immigra-
tion and naturalization. Thus, neither Sug-
arman nor the principles enunciated therein
are automatically applicable to federal em-
ployment.
In Hampton v. Mow Sun Wong, the
court invalidated the federal across-the-
board citizenship requirement for the com-
petitive civil service.21 In doing so, how-
ever, the court left open the possibility that
a citizenship test required by statute or ex-
ecutive order could be found to be consti-
tutional.
Mow Sun Wong represents justice Ste-
ven's first opinion for the court. In striking
down 'the Civil Service Commission's citi-
zenship regulation he combines equal pro-
tection and substantive due process anal-
ysis to conclude that:
When the federal government asserts an
overriding national interest as justification
for a discriminatory rule which would vio-
late the equal protection clause if adopted
by a state, due process requires that there
be a legitimate basis for presuming that the
rule was actually intended to' serve that in-
terest.
The interests stated by the government
were recognized by the majority as poten-
tially justifying the citizenship restriction.
However, a definitive answer to this ques-
tion was not required because the court
was of the view that the arguments pre-
seiiieu uu nut 1uc11iiff?r-,i11y Iuic;! W111,11
can reasonably be assumed to have influ-
enced the Civil Service Commission." In
other words, while the federal government
as such might have a valid interest in re-
stricting federal employment to citizens,
such restriction did not serve the Civil Ser-
vice Commission's basic function of provid-
ing a merit based workforce and hence the
commission's regulation could not be up-
held.
The court's analysis of the issue is subject
to question. In matters of pure logic, the
four-justice dissent appears to have the up-
per hand. The majority's bifurcation of the
executive function is a strange inroad into
the management of the executive branch,
it narrowly reads the Civil Service Commis-
sion's role and disregards both the com-
mission's function as agent of the president
in personnel management and the congres-
sional and presidential delegations of au-
thority to the commission. Moreover, in Ex-
amining Board of Engineers v. Otero, the
court noted that "[w]e do not suggest, how-
ever, that a state, territory or local govern-
ment, or certainly the federal government,
may not be permitted some discretion in
determining the circumstances under which
it will employ aliens . . ." suggesting again
that the federal government's authority in
this area is greater than that of state or lo-
cal government.22
It is this writer's opinion that the court's
decision is an ingenious but disingenious
way of avoiding the tough constitutional
question; namely, may the federal govern-
ment restrict its public employment to citi-
zens. There are indications in the decision
that a statutory or executive order restric-
tion, both of which avoid the question of
commission jurisdiction and justification,
would pass constitutional muster. It hardly
seems appropriate for the judicial branch to
require the president himself or the Con-
gress to relegislate a policy which is more
than a century old and which neither
branch has seen fit to change in that time.
It is this writer's opinion based on Sugar-
man and Mow Sun Wong that state citizen-
ship tests for public employment are uncon-
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A
stitutional w erei simi ar re uiremenfs men s. as i b o r r. this ap-
congressionally enacted or presidentially
proclaimed are constitutional and valid.
Employment Testing
The Civil Rights Act of 1964 specifically
allows for the use of professionally devel-
oped employment tests. In the seminal case
of Griggs v. Duke Power Co., the Supreme
Court was confronted with an employer
who had publicly announced a change to
an open employment policy in accordance
with the act but who had at the same time
also adopted two professionally developed
tests as employment entry devices.23 Results
of test use showed that a substantially high-
er percentage of blacks failed the test than
did whites. Arguing that this statistical dis-
parity established prohibited discrimina-
tion, black applicants for employment with
Duke Power sued under Title VII. The
court, in a broad-reaching opinion rejected
the polar positions staked out by the parties
-to prohibit entirely the use of employ-
ment tests as it had previously done for vot-
er literacy tests24 or to permit the use of any
test as long as it was developed by an in-
dustrial psychologist-and instead held that
an employment test with a substantial ad-
verse racial impact was presumptively dis-
criminatory. Use of such a test could only
be permitted if justified by business neces-
sity which in turn could be established
through a demonstration of the job related-
ness of the test. Once adverse impact was
established, the employer bore the heavy
burden of showing job relatedness. Under
the Griggs standard intent to discriminate
became unimportant-the key factor in dis-
crimination was an employment practice's
effect.
Title VII of the Civil Rights Act became
effective in 1964 but, government employ-
ment-state, local, and federal-was not cov-
ered by the act until 1972. Even prior to
1972, however, suits were instituted against
government employers on the basis of the
Fourteenth Amendment. In a series of opin-
ions, the various courts of appeals uniform-
ly held the Griggs standard applicable to
pre-1972 testing by state and local govern-
proach to be improper and represents the
first case where the Supreme Court has up-
held an employment test having an adverse
impact .2-1
Davis concerns, the District of Columbia
Police Department's entrance examination.
The test, which has an adverse racial im-
pact, was alleged to be discriminatory. The
court of appeals utilizing the Griggs stan-
dard (even though the suit was instituted
prior to congressional action making Title
VII applicable to federal employment)
found that the department had failed to
establish the job relatedness of the test and
rejected the city's attempt to establish va-
lidity through a correlation between suc-
cess on the test and success in the city's
police academy. According to the court of
appeals, the city had to correlate success
on the test with success as a police officer-
success in the academy simply was insuffi-
cient. This holding was clearly reversed by
the Supreme Court.
Davis is significant in several respects.
First, the court clearly distinguishes consti-
tutional cases (i.e., those founded upon the
Fifth and Fourteenth Amendments) from
Title VII litigation. While Griggs estab-
lishes the Title VII rule, "[W]e have never
held that the constitutional standard for ad-
judicating claims of invidious racial dis-
crimination is identical to the standards ap-
plicable under Title VII, and we decline to
do so today." Under the constitutional stan-
dard, there must be discriminatory purpose
or intent-adverse impact alone is insuffi-
cient to shift the burden of justification to
the employer. Unlike the Griggs standard
intent rather than effect is the key to con-
stitutional litigation. In reaching this con-
clusion the court uses language which may
have a decided impact on the testing pro-
gram of statutory merit systems.
Before considering the specific state-
ments of the court it is important to rec-
ognize that the 1964 act provides an ex-
ception for bona fide seniority and merit
systems. More specifically, the 1964 act
provides that "[N]otwithstanding any other
provision of ... Title [VII], it shall not be
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A Qve 'o
em lo er to i eta! c /04/17: CIA-RQP 31-003'1 0020 1 q~07-3
c r ere s anc r As an initia matter, TWO lave r tcu y m-
F p ip y
1 ;
compensation, or different terms, concli- derstanding how a law establishing a racially
tions, or privileges of employment pursuant neutral qualification for employment is nev-
to a bona fide seniority or merit system ... " ertheless racialiv discriminatory and denies
f t f any person equal protection of the laws"
a
d
? .. it is untenable that the Constitution pre-
those laid off by such systems are minority vents the Government from seeking modest-
group members.20 The adverse impact of lv to upgrade the communicative abilities
the seniority system is "neutralized" by its of its employees rather than to be satisfied
bona fide character. What cpnstitutes a with some lower level of competence, par-
"bona fide ... merit system" is yet to be ticularly where the job requires special
determined. ability to communicate orally and in writ-
Prior to Davis there was virtually no at- ing
tention paid to this "merit system" excep- Counter arguments are found in the fact
tion. For it was generally assumed that the that the language dealing with bona fide
Griggs standard was applicable across-the- merit systems was part of the 1964 act and
board and no employment system-includ- thus applied to private employees, but was
ing a merit system-was bona fide if it did given no weight in Griggs, as well as the
not meet that standard. While Davis does legislative history of the 1972 amendments
not directly discuss the "merit system" ex- which reflect a congressional intent to ap-
ception, it does suggest the argument that ply similar standards to both public and
a governmental merit system, required by private employment.27 Nonetheless, it may
local law, which meets the constitutional be argued that the social policy underlying
test of Davis is bona fide and, hence, out- statutory public merit systems distinguishes
side the strictures of Title VII. The point them from private employment,28 and one
would be that Griggs is a statutory standard may question whether congressional intent
and one need never reach the issue of con- is sufficient to mandate the Griggs stan-
formity with the statute if one shows the dards in light of the court's decision in
system to be bona fide under the Davis National League of Cities.
standard since once the merit system is In National League of Cities, the court
shown "to be bona fide it is outside the coy- held that Congress lacked the authority to
erage of Title VII. In arguing this position make the Fair Labor Standards Act appli-
a state could argue that clearly one need cable to the states. Congress had sought to
not comply with the statutory standard in justify its actions under the commerce
order to not be subject to the statute. clause, Constitution Article 1, Section 8,
Davis, of course, does not go this far- Clause 3. The 1972 amendments to the
but it does require an analysis of this posi- Civil Rights Act are premised on the Four-
tion and, indeed, contains language to sup- teenth Amendment, Section 5 of which
port such a rule. It must be recalled that contains a delegation of legislative author-
Griggs is premised on the primacy of ad- ity to carry out the amendment. Clearly
verse impact-Davis notes: Congress can legislate as to the states under
the amendment,29 but can Congress in car-
... we have not held that a law, neutral on rying out the Fourteenth Amendment es-
its face and serving ends otherwise within tablish standards which are not called for
the power of Government to pursue, is in- by the equal protection clause? Again, the
valid under the Equal Protection Clause
simply because it may affect a greater pro- court did make it clear in Davis that Title
portion of one race than of another VII goes significantly beyond what is re-
). A seises o cour o
(emphasis adde
p simply because a greater proportion
peals decisions has held that company Negroes fail to qualify than members
wide, last-in-last-out seniority systems are other racial or ethnic groups.
bona fide and hence permissible under the and finally:
Act even thouoh a greater proportion of
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 q p'p d e ~ ~L ~ /?41'1l'!' IA-RDP~1~~ '1 Ob~l ~~l1 i r~ to negate
ployment opportunity area. Do the con-
cepts of sovereignty found in National
League of Cities have any viability when
legislation under the Fourteenth Amend-
ment is involved? These are questions
raised by but undecided by this teen's de-
cisions.
Davis has other ramifications for local
government employment practices. For the
first time the court has upheld the validity
of a test. In doing so, the court appears to
have given substantial weight to the affirm-
ative action progress made by the District
of Columbia:
Even agreeing with the District Court that
the differential racial effect of Test 21 called
for further inquiry, we think the District
Court correctly held that the affirmative ef-
forts of the Metropolitan Police Department
to recruit black officers, the changing racial
composition of the recruit classes and of the
force in general, and the relationship of the
test to the training program negated any in-
ference that the Department discriminated
on the basis of race or that "a police officer
qualifies on the color of his skin rather than
ability."
This language, when taken together with
the court's concern for an employee's past
history,30 may indicate that the issue of job
relatedness is not the purely scientific ques-
tion which some psychologists and the
Guidelines of the Equal Employment Op-
portunity Commission would tend to make
it. In fact, this language leaves open the
door for a "bottom line" definition of ad-
verse impact under which tests are not
viewed in isolation but rather as a part of
an entire employment system. If the system
as a whole does not discriminate, its parts
are not subject to challenge because of ad-
verse impact.
Moreover, the court's opinion, even
when dealing with. the psychometrics of
validity, indicates that "[I]t appears be-
yond doubt by now that there is no single
method for appropriately validating em-
ployment tests for their relationship to job
performance ."31 This recognition of various
approaches to validity (the court refers to
criterion related validity, content validity
the preferen e- for criterion-related validity
found in the Equal Employment Opportu-
nity Commission Guidelines.3" Indeed, the
court's language, while for the first time re-
quiring "validity" to establish job related-
ness, specifically notes that tests may be
validated "iii any one of several ways, per-
haps by ascertaining the minimum skill,
ability or potential necessary for the posi-
tion at issue and determining whether the
qualifying tests are appropriate for the se-
lection of qualified applicants for the job
in question." Significantly, the Davis court,
even when operating under the Griggs stan-
dards, permits an employer to test for "po-
tential."
In addition, the court rejected the notion
that an employer must demonstrate a corre-
lation between success on the test and per-
formance on the ultimate job. Police re-
cruits go to a police academy. In upholding
the concept of training program valida-
tion, the court relied on regulations of the
Civil Service Commission, opinion evidence
and "the current views of the Civil Service
Commissioners." This is the first substan-
tive recognition which the Supreme Court
has given to the testing instructions of the
United States Civil Service Commission.
Finally, the significance of Davis on the
issue of quota hiring should not be lost.
While the District of Columbia received
favorable treatment as a consequence of its
highly successful affirmative action pro-
gram the court made it clear that the Four-
teenth Amendment does not call for pro-
portional representation nor any other con-
cept of racial representativeness in employ-
ment. To this must be added the court's
holding in McDonald v. Santa Fe Trail
Trans p. Co. that "Title VII prohibits racial
discrimination against the white petitioners
in this case upon the same standards as
would be applicable were they Negroes.
" 33 This holding specifically reaffirms
the court's language in Griggs that the act
prohibits "discriminatory preference for any
group minority or majority."
It is this writer's view that Davis cannot
be dismissed simply as a case involving a
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cal governments are now subject to Title
VII. As the foregoing shows, Davis raises
more questions than it answers. It remains
to be seen how the lower courts and ulti-
mately the Supreme Court interprets Davis.
Two things are clear however-public em-
ployers may validate their tests under any
"of the three generally recognized method-
ologies and may rely on successful correla-
tions between success on the test and suc-
cess in job related training programs-suc-
cess in affirmative action has legal (as well
as moral) significance.
Procedural Protections for Federal
Employees
It has long been held in the private sec-
tor that alleged victims of racial discrimina-
tion may rely on either (or both) Title VII
of the 1964 act or 42 U.S.C. ?1981 the old
Civil War Civil Rights Act. Unlike Title
VII, ?1981 contains no requirement for fil-
ing claims with the Equal Employment Op-
portunity Commission or other preliminary
procedural steps. In addition, the courts
have made it clear that regardless of the
procedures before the Equal Employment
Opportunity Commission an alleged victim
of discrimination may institute an action in
district court and is entitled to a full and
complete trial of his or her allegations.34 In
fact, a full trial is required even though the
issue has been presented to and decided by
an arbitrator.35
Unlike employees in the private sector,
federal government employees are under
the jurisdiction of the U.S. Civil Service
Commission. The USCSC, in turn, unlike
the EEOC, provides a full range of admin-
istrative procedures to alleged victims of
discrimination. These procedures call for
pre-complaint counseling, investigation,
administrative hearing, administrative ap-
peal and ultimately review in court. In
Brown v. General Services Administration
and Chandler v. Roudebush the court was
called upon to consider whether these pro-
cedural changes had substantive effect once
a party instituted a court action.3G
In Brown, the court treated federal em-
NiM A8-x3 cm-
plovees and cone t , tTiat sue i employees
could not rely on 42 U.S.C. ?1981. Rather,
the exclusive remedy for federal employees
who allege employment discrimination is
Title VII and the administrative procedures
of ?717 of the 1972 Amendments must be
pursued.
While Brown held that the procedures of
Title VII must be followed, Chandler held
that once those procedures are followed
and a judicial proceeding is instituted, fed-
eral employees are entitled to the same full
trial de novo available to private sector em-
ployees. The prior administrative findings
are admissible in evidence at the trial de
novo but the employee is entitled to a full
trial just as is available in the private sector.
Age-Mandatory Retirement
In Massachusetts Board of Retirement v.
Murgia, the Supreme Court rejected an
equal protection challenge to Massachu-
setts' mandatory retirement at age 50 for
state police ofTicers.37 At the time of his
forced retirement, Murgia was in excellent
physical and mental health and was capa-
ble of performing the duties of a police
officer. Utilizing the rational basis analysis
applicable to equal protection claims not
involving exercise of a fundamental right
(a right to government employment per se
is not fundamental) or suspect classifica-
tions ("old age does not define a `discrete
and insular' group . . . in need of 'extra-
ordinary protection from the majoritarian
political process"'), the court concluded:
The Massachusetts statute clearly meets the
requirements of the equal protection clause,
for the state's classification rationally furthers
the purpose identified by the state: Through
mandatory retirement at age 50, the legis-
lature seeks to protect the public by assur-
ing physical preparedness of its uniform
police.
It matters not that the state could have
chosen better means to accomplish its pur-
pose-the means chosen were rationally re-
lated to the state's objective and hence con-
stitutional. The court is quick to note that it
is not deciding that the Massachusetts sys-
PUBLIC EMPLOYMENT AND THE SUPREME COURT 297
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ohJ.ective or even that the system is just or tial personnel because present employees
humane-all the court decides is that the do not share the political philosophy of the
system
tional.
is rational and, hence, constitu- party in power or choose not to join that
Murgia had based his challenge on the
Fourteenth Amendment and had placed no
reliance on the Age Discrimination in Em-
ployment Act of 1967.38 As Washington v.
Davis makes clear, the constitutional stan-
dard under the Fourteenth Amendment
may not replicate the standard arising from
legislation. Thus, it is possible that while
constitutional a state mandatory retirement
system for police officers may run afoul of
the Age Discrimination Act. Murgia does
not implicate this question. The applicabil-
ity of federal age discrimination legislation
to state or local government employment
is drawn into question by National League
of Cities. After all, if Congress lacks the
authority to legislate minimum wages for
state or local government employees can it
have the authority to mandate minimum or
maximum ages? Unlike the Equal Employ-
ment Opportunity Act of 1972 which
amended Title VII of the Civil Rights Act
of 1964 to make it applicable to state em-
ployment, the Age Discrimination in Em-
ployment Act does not appear to be based
on the Fourteenth Amendment.
party. Until Elrod it had always been as-
sumed that such insulation from politics
was reserved to civil servants serving un-
der a merit system.
The Elrod decision. is based on the con-
cept enunciated by the court in Perry v.
Sinderrnan to the effect that a public em-
ployee cannot be discharged for lawful ex-
ercise of his First Amendment rights. This
same concept appears in Pickering v. Board
of Education.", The right to associate with
the political party of one's choice is an at-
tribute of the First Amendment.40 While
the majority apparently recognizes that the
state may impose certain restrictions on its
employees which it could not justify as to
the public at large, political belief and af-
filiation do not fall into this character.
The plurality opinion by justice Brennan
is far reaching in its approach. Starting
with the premise that patronage dismissals
restrict freedom of association protected by
the First Amendment, Justice Brennan con-
siders and rejects arguments made by the
Cook County sheriff to justify patronage
practices. To the argument that patronage
motivates more effective and efficient em-
ployees, he responds, "[T]he inefficiency re-
THE PATRONAGE SYSTEM suiting from the wholesale replacement of
In Elrod v. Burns, a five-justice majority large numbers of public employees every
dealt a severe setback to the patronage sys- time political office changes hands belies
tem. The specific holding of the court is this justification"; to the claim that the
clearly stated in the concurring opinion of patronage system contributes to the demo-
Justices Stewart and Blackman: cratic process by assisting political parties,
The single substantive question involved in he notes that as an historical matter, "[P]o-
this case is whether a nonpolicymaking, litical parties existed in the absence of
nonconfidential government employee can active patronage practice prior to the ad-
be discharged from a job that he is satin- ministration of Andrew Jackson, and they
factorily performing upon the sole ground have survived substantial reduction in their
of his political beliefs. I agree with the court patronage power through the establishment
that he cannot. of merit systems"-an historical view chal-
It is thus clear that a new administration, lenged by the dissent-and concludes:
be it national, state, county or municipal The [democratic] process functions as well
cannot demand that its nonpolicymaking
nonconfidential employees either support without the practice, perhaps even better,
for patronage dismissals clearly also retard
the party in power or face discharge. Nor that process. Patronage can result in the en-
can such administration make wholesale trenchment of one or a few parties to the
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 asc RR%Yi~ Xs e~~l l i?VIs7
a very effective impediment to the associa-
tional and speech freedom which are essen-
tial to a meaningful system of democratic
government. Thus, if patronage contributes
at all to the elective process, that contribu-
tion is diminished by the practices impair-
ment of the same. Indeed, unlike the gain
to representative government provided by
the Hatch Act in CSC v. Letter Carriers,
supra., and United Public Workers v.
Mitchell, supra., the gain to representative
government provided by the practice of pat-
ronage, if any, would be insufficient to justify
its sacrifice of First Amendment rights.
Thus government may place restrictions
on active political management by its em-
ployees since this impediment to First
Amendment rights constitutes a positive
gain to representative government; but it
may not discharge a nonpolicvmaking or
nonconfidential employee for his political
beliefs, associations or activities.
The concurring opinion bases its view on
narrower grounds, namely discharge "upon
the sole ground of his political beliefs" is
forbidden when nonpolicymaking, noncon-
fidential government employees are in-
volved. But, the concurring justices (whose
votes are necessary to establish a bare ma-
jority) leave unexpressed their view as to
whether state and local employees who, in
light of the recent amendments to the
Hatch Act,41 actively campaign for the
loser may be discharged. Is there a differ-
ence between campaigning and "the sole
ground of his political beliefs?" It is this
writer's view that there should not be, but
the concurring justices are quick to note
that they "cannot join the court's wide-
ranging opinion." Moreover, Elrod involves
solely the question of patronage discharge
-not issues of patronage hiring. The con-
curring justices are explicit in noting that
on this issue they "would intimate no views
whatever." Finally, all the justices agree
that at least as to policymaking employees
who have no tenure or career rights, patron-
age discharges are permitted. The difficulty
here is in defining policymaking:
No clear line can be drawn between policy-
CIA ~i'fe?Ilo1S Mac 7f `iiflib~,q?s tt illy
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 . . .
In determining whether an employee occu-
pies 'a policymaking, position, consideration
should also be given to whether the em-
ployee acts as an advisor or formulates plans
for the implementation of broad goals.
At all events, Elrod is a decision of single
importance. Noncareer, nonmerit system
employees, as well as merit system civil
servants, in nonpolicvlnaking, nonconfiden-
tial positions may not be swept out of office
when a local, state or federal election re-
sults in a change in the party in power.
While not dead, the spoils system has suf-
fered a severe setback and merit systems,
as well as public administration in general,
should be the victor.
STATE SOVEREIGNTY AND THE
PUBLIC EMPLOYEE
Article 1 of the Constitution defines the
legislative branch of government. Section
8 thereof enumerates the powers of Con-
gress. One of the broader powers is con-
tained in Clause 3 thereof-commonly
called the commerce clause. Congress is
given the power: "To regulate commerce
with foreign nations, and among the several
states, and with the Indian tribes."
In Gibbons v. Ogden, Chief Justice Mar-
shall gave the term "commerce" the broad-
est possible interpretation-it includes "ev-
ery species of commercial intercourse be-
tween the United States and foreign na-
tions," "commerce among the states cannot
stop at the external boundary line of each
state, but may be introduced into the in-
terior." And, once interstate commerce is
involved: "This power, like all others vested
in Congress, is complete in itself, may be
exercised to its utmost extent, and acknowl-
edges no limitations, other than are pre-
scribed in the Coll StitUtion." 42
Since Gibbons in 1824 the court has con-
tinued to expand the concept of interstate
commerce-with brief retreats, such as
Hammer v. Dagenhart, striking child la-
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bor laws as outside congressional power.43 congressfona ly pose on ~e stn es. The
In United States v. Darby, the court up- same reasoning would limit congressional
held the power of Congress to enact the power to authorize strikes by state employ-
Fair Labor Standards Act.44 In 1968, the ecs and as noted supra might affect such
Supreme Court, in Maryland v. Wirtz, up- legislation as the Age Discrimination
held the power of Congress to amend the Employment Act..,
FLSA so as to make it applicable to em- National League of Cities appears to
ployees of state hospitals, institutions, and stand for the proposition that Congress
schools-all of whom are public employ- may not legislate under the commerce
ees.45 Shortly thereafter, in Fry v. United clause in any area dealing with state or
States, the court upheld those provisions of local public employees as public employ-
the Economic Stabilization Act of 1970 ees. In order to reach such public employ-
which applied so as temporarily to freeze ment relationship, Congress must rely on
the wages of state and local employees.46 some constitutional authority expressly di-
In 1974 the minimum wage and maximum rected at the states, such as the Fourteenth
hours provisions of the FLSA was made ap- Amendment.41 Absent such authority, it is
plicable to state and local employees. In for the states themselves to determine how
1976, the Supreme Court, reversing Mary- they will deal with public employment. (Of
land v. Wirtz and distinguishing Fry v. course, the states may not deal with public
United States, held that such provisions employment in such a way as to violate
`operate to directly displace the states' free- enumerated constitutional rights. ) 48
dom to structure integral operations in
areas of traditional governmental functions"
and hence "they are not within the author-
ity granted Congress by Article 1 ?8 Clause
3."
In reaching this conclusion the court re-
lied on concepts of state sovereignty which
cannot be impaired by Congress, even
though Congress has plenary powers under
the commerce clause. One aspect of this
state sovereignty "is the states' power to de-
termine the wages which shall be paid to
those whom they employ in order to carry
out their governmental functions, what
hours those persons will work, and what
compensation will be provided where these
employees may be called upon to work
overtime." By infringing on these sovereign
powers, Congress has exceeded its proper
authority in a federal system. Limited mea-
sures designed to "combat a national emer-
gency," such as the temporary freeze on
wages under the Economic Stabilization
Act approved in Fry, may be upheld.
Clearly the decision in National League
of Cities has broader application than sim-
ply to the Fair Labor Standards Act. Just
as minimum wages cannot be congression-
ally mandated, so too, it would follow, com-
pulsory collective bargaining may not be
MISCELLANEOUS
The "Back Pay Act" provides in sub-
stance that when a federal employee is
found "to have undergone an unjustified
or unwarranted personnel action that has
resulted in the withdrawal or reduction" of
his pay, he is entitled to correction of the
personnel action as well as such back pay
as would have been earned were it not for
the unjustified personnel action.49 In recent
years, the comptroller general has been
broadening his interpretation of the act so
as to allow employees to receive back pay
lost as a consequence of an unjustified per-
sonnel action or the failure of an agency
to perform a nondiscretionary personnel
action.50 Such an interpretation takes the
position that failure to perform a nondis-
cretionary action constitutes the taking of
an unjustified personnel action. The comp-
troller general has never applied this rea-
soning to an improper classification. In
United States v. Testan, the Supreme Court
had to consider whether the Back Pay Act
covered an improper classification." Tes-
tan, a grade GS-13 attorney, sued the gov-
ernment in the Court of Claims, arguing
that his position should have been classi-
fied at grade GS-14. Testan sought both a
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back pay for the period when the position
was allegedly misclassified. The Court of
Claims is a court of limited jurisdiction
which can handle only cases calling for a
money judgment. Thus, the issue before
the Supreme Court was whether the Back
Pay Act applied to misclassifications. The
court, in an opinion that literally inter-
preted the Back Pay Act, held that the act
did not apply. In broad language the court
stated:
. that the Back Pay Act, as its words so
clearly indicate, was intended to grant a
monetary cause of action only to those who
were subjected to a reduction in their duly
appointed involvements or position.
If the act applies "only" to those who
were "subjected to a reduction" in pay or
position, can it apply to those who were
not subjected to any action but rather were
the subjects of a failure to act? The lan-
guage of the opinion appears to conflict
with the recent trend of comptroller gen-
eral decisions-however, the court was not
aware of this trend and was only concerned
with a classification question. It remains to
be seen whether Testan will be applied
more widely than to the classification issue.
Finally, in Department of the Air Force
v. Rose,52 the court gave a narrow reading
to Exemption 2 of the Freedom of Infor-
mation Act,52 which exempts from disclo-
sure by federal agencies matters "related
solely to the internal personnel rules and
practices of an agency." The court noted
that the congressional policy was one of
disclosure, not secrecy, and that the records
of an agency's internal personnel manage-
ment could be kept secret only if they dealt
with "trivial matters" but must be dis-
closed where "more substantial matters in
which the public might have a legitimate
interest" were involved. In' this connection,
the court made it clear that the public does
have a "legitimate interest" in most aspects
of federal personnel management adminis-
tration and, while the court noted that Ex-
emption 6 of the Freedom of Information
Act is available to protect whatever gen-
uine privacy interests may be implicated
cated that Exemption 6 should not be had
as a "blanket exemption for personnel
files." In each instance where privacy val-
ues are involved, a compromise must be
struck "between individual rights" and "the
preservation of public rights to Govern-
ment information."
In any event, the con rt has reaffirmed
the congressional policy of disclosure of
government information and has made it
clear that this policy applies no less in the
personnel management area than as to
other substantive, mission-related matters.
CONCLUSION
This past term represents a turning point
in the law of public personnel. While many
questions remain unanswered-such as
what is the full impact of Washington v.
Davis on public merit system examining?
do the principles of 'Elrod v. Burns apply
to patronage practices or is it limited mere-
ly to dismissals? and, just how far-reach-
ing are the concepts of state sovereignty in
internal affairs, such as employment, set
out in National League of Cities?-this
year's plethora of decisions does paint an
emerging and changing pattern of public
employment law. The court, while still con-
cerned that public employers not improp-
erly cross the line of specific constitutional
prohibition (e.g., Elrod v. Burns), recot
nizes that the relationship between a pub-
lic employer and its employees is different
from that of the agency involved and the
general public (e.g., McCarthy v. Philadel-
phia Civil Service Commission). This dif-
ference means that governmental action
forbidden when the public is implicated
may be permitted when the employer-
employee relationship is involved (e.g.,
Kelley v. Johnson). Moreover, when a spe-
cific constitutional right is not involved, the
court is less likely to find a property in-
terest protected by the Fourteenth Amend-
ment than has been the case in the past
(e.g., Bishop v. Wood). This de-emphasis
on the Fourteenth Amendment and con-
stitutional protection is reflective of a gen-
eral trend to grant greater discretion in
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 7
P p13~v 4 Rely 20d M411 "` IA-R P I a. ~il~ir,f4&dd S01 7-38J( J109
thus to rely more. on legislative intention 1976).
than constitutional principle. In this same 26. Jersey Central Power Co. v. Local Unions,
vein, the court appears to be following a 508 F.2d 687 (3rd Cir. 1975), remanded for
proceedings consistent with Franks v. Bour_
pattern which vests greater authority over roan, 44 U.S.L.W. 4356 (March 24, 1976);
personnel matters in locally elected pub- Waters v. Wisconsin, 502 F.2d 1309 (7th
lie employers (e.g., Hortonville Joint Cir. 1974); Watkins v. United Steel Workers,
School District v. Hortonville Education 516 F.2d- 41 (5th Cir. 1975) ; Chance V.
Board of Examiners, - F.2d 44 L.S.L.W.
Association and National League of Cities 2343 (2nd Cir,/1976 ).
v. Usery) and casts on the employee the 27. See Mancari v. Morton, 417 U.S. 535 (1974);
heavy burden of establishing that the em- Chandler v. Roudebush, - U.S. - (June 1,
1976, discussed infra.).
ploycr's policy is unrelated to the employ- 28. Cf. Kirkland v. New York State Dept. of
menu involved (e.g., Kelley v. Johnson and Correctional Services, 520 F.2d 420 (CA2,
Quinn V. Muscare). 1975); Elrod v. Burns, - U.S. - (June 28,
1976).
Notes 29. Fitzpatrick v. Bitzcr, - U.S. - (June 28,
1. Perry v. Sinderman, 408 U.S. 593 (1972); 1976).
Board of Regents v. Roth, 408 U.S. 564 30. E.g., in Albemarle Paper Co. v. Moody, 422
(1972). U.S. 405 ( 1975), the court said: "The concept
2. Wisconsin v. Constantineau, 400 U.S. 433 of job relatedness takes on meaning from the
(1971); Perry v. Sinderman, supra, facts of the Griggs case . . . the question of
3. Arnett v. Kennedy, 416 U.S. 134 (1974). job relatedness must be viewed in the con-
4. Bishop v. Wood, - U.S. - (1976). text of the plant's operation and the history
5. Sampson v. Murray, 415 U.S. 61 (1974). of the testing program."
6. Article II, ?6, Personnel Ordinance of the 31. Washington v. Davis, footnote 13.
City of Marion, North Carolina. 32. Compare Douglas v. Hampton, 512 F.2d 976
7. National League of Cities v, Usery, - U.S. - (CADC .1975), decided the same day as
(1976). Davis and relied upon by the Davis lower
8. Kelley v. Johnson, - U.S. - (April 5, 1976). court, two of whose members also served on
9. Pickering v. Board of Education, 391 U.S. the Douglas panel.
563 (1968); U.S. Civil Service Commission v. 33. McDonald v. Santa Fe Train Transportation
National Association of Letter Carriers, 413 Co., - U.S. - (June 25, 1976).
U.S. 518 (1973). 34. McDonnell Douglas Corp v. Green, 411 U.S.
10. See, e.g., Carl F. Goodman, "Judicial Trends 791 (1973).
in Public Personnel Management," Public 35. Johnson v. Railway Express Agency, Inc.,
Personnel Management (September-October 421 U.S. 454 (1975).
1975), 278-288; Norton v. Macy, 417 F. 2d 36. Brown v. General Services Administration, -
1161 (D.C. Cir. 1969). U.S. - (June 1, 1976); Chandler v. Roude-
11. Quinn v. Muscare, - U.S. - (May 3, 1976). bush, - U.S. - (June 1, 1976).
12. E.g., free speech, in Pickering v. Board of 37. Massachusetts Board of Retirement v. Murgia,
Education, supra; freedom of association, in - U.S. - (June 25, 1976).
Elrod v. Burns, discussed infra. 38. 29 U.S.C. ?621, et seq.
13. Hortonville Joint School District v. Horton- 39. Pickering v. Board of Education, 391 U.S. 563
ville Education Association, 44 L.W. 4864 (1968).
(June 17, 1976). 40. Cf. NAACP v. Alabama, 357 U.S. 449
14. McCarthy v. Philadelphia Civil Service Com- (1958); NAACP v. Button, 371 U.S. 415
mission, - U.S. - (March 22, 1976). (1963).
15. Shapiro v. Thompson, 394 U.S. 618 (1969). 41. See 5 U.S.C. ?1501, et seq.
16. Cf. Cleveland Board of Education v. LaFleur, 42. Gibbons v. Ogden, 9 Wheat 1 (1824).
414 U.S. 632 (1974); Cohen v. Chesterfield 43. Hammer v. Dagenhart, 247 U.S. 251 ( 1918).
County, 474 F.2d 395 (1973). 44. United States v. Darby, 312 U.S. 100 (1941).
17. Sugarman v. Dougall, 413 U.S. 634 (1973). See also Oklahoma Press Publishing Co. v.
18. See, e.g., Truax v. Raich, 239 U.S. 33 ( 1915); Walling, 327 U.S. 186 (1946); Borden Co.
Takahashi v. Fish.& Game Commission, 334 v. Borella, 325 U.S. 679 (1945).
U.S. 410 (1948). 45. Maryland v. Wirtz, 392 U.S. 183 ( 1968).
19. Sugarman v. Dougall, supra; Espinoza v. 46. Fry v. United States, 421 U.S. 542 ( 1975).
Farah Manufacturing Co., 414 U.S. 86 47. See Fitzpatrick v. Bitzer, supra.
(1973). 48. Elrod v. Burns, supra.
20. 2nd Report, U.S. Civil Service Commission 49. 5 U.S.C. ?5596.
83 (1885). 50. See, e.g., Matter of Turner and Caldwell, C. G.
21. Hampton v. Mow Sun Wong, - U.S. - (June Decision B-183086 (1975).
1, 1976). 51. United States v. Testan, 44 U.S.L.W. 4243
22. Examining Board of Engineers v. Otero, 44 (1976).
U.S.L.W. 4890 (1976). 52. Department of the Air Force v. Rose, 44
23. Griggs v. Duke Power Co. 401 U.S. 424 U.S.L.W. 4503 (1970).
(1971). 53. 5 U.S.C. ?552 (b)(2).
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 Approved Forlease 2003/04/17: CIA-RDP81-003100200110007-3
Irfr
vv,J it4 U
JUDICIAL TRENDS
IN
PUBLIC PERSONNEL MANAGEMENT
CARL F. GOODMAN
Until a few short years ago, the judicial
presence in personnel management had a
very low profile. In Keint v. United States,'
the Supreme Court made it clear that the
appointment and discipline of federal em-
ployees were matters for their supervisors
and not for the judiciary. Then came the
Lloyd-LaFollette Act,2 the Veterans Pref-
erence Act3 and U.S. Civil Service Commis-
sion regr.les extend
usion pur-
bitrary or
mtly, it has
public em-
stitutional
-s not dis-
and em-
)ther peo-
arbitrary
the gov-
is dealing
:employees'
that stood
ale process
th its own
-y action.12
le "sound-
ent .head's
nsel of the
.ion. He re-
cfe of New
school; and
rsity. Prior
d with the
`cs Depart-
a.ssociated
and Morse.
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IA-RDP81
13
1
1
exercise o : r Lginent remained invio able.
In the succeeding twenty years, how-
ever, the situation has changed dramatically
keeping pace with similar developments in
other areas of the law with which the
courts are dealing more actively than for-
merly. For example, to the original review
for procedural regularity, the courts have
added a standard by which they will ex-
amine the executive action to determine
whether it was "arbitrary or capricious"14
and, in the 2nd,15 3rd,11, 4th,17 9th,13 1Oth,19
and D.C. Circuits,L? the criterion for judg-
ing a final agency decision in the personnel
area has become whether it is based upon
substantial evidence."
One of the most dynamic areas in judicial
oversight of personnel management has
been that of the public employee and his
right to dissent. The time was not so dis-
tant when justice Oliver Wendell Holmes,
sitting on the Massachusetts Supreme
Court could uphold the discharge of a
policeman noting "the petitioner may have
a constitutional right to talk politics, but
he has no constitutional right to be a police-
man. "21
In keeping with the trend toward in-
cr eased vigilance over the constitutional
rights of the public employee is the land-
mark decision in the free speech area,
Pickering v. Board of education. A teacher
was removed on the basis of a letter sent
to a local newspaper criticizing the han-
dling of finances by the Board of Education.
The court noted that:
It is possible to conceive of some positions
in public employment in which the need
for confidentiality is so great that even com-
pletely correct public statement might fur-
nish permissible ground for dismissal. Like-
wise, positions in public employment in
which -the relationship between superior and
subordinate is of- such personal and intimate
nature that certain forms of public criticism
of the superior by the subordinate would
seriously undermine the effectiveness of the
working relationship between them can also
be irnagined.22
Clearly the court's concern lay not as
much with the truth or falsity of the state-
JUDICIAL TRENDS IN PERSONNEL MANAGEMENT
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-0031414000200110007-3
ments made in the letter, as with the effect
of those statements upon the employment
situation. In. that regard the court issued
the now standard test against which utter-
ances of public employee's continue to be
measured.
The problem in any case is to arrive at a
balance between the interest of the teacher
[public employee] as a citizen commenting
upon matters of public concern and the
interest of the state, as an employer, in
promoting the efficiency of the public set
vice 'through its employees.23
The Court in Pickering found that the
remarks had been made basically in his
capacity as a citizen, not as a public em-
ployee and thus were protected.
In April 1974, the Pickering doctrine was
further elaborated in Arneti v. Kennedy.24
Plaintiff had attacked the standard for re-
moval of a federal employee, authorizing
such removal only for "cause as will pro-
mote the efficiency of the service," as being
unconstitutionally vague when applied to
the removal of a federal employee for state-
ments made to the press and public critical
of his immediate superior. A three-judge
district court'25 had held that this standard,
as set forth in the Lloyd-LaFollette Act,
did not provide sufficient guidelines for the
employee to know what speech might be
grounds for removal and was thus uncon-
stitutional.
Mr. justice Rehnquist, writing for the
majority in an opinion signed by six justices,
held that the standard was as specific as it
was possible to get. Certainly an employee
cannot be discharged for protected speech.
Even if the speech were unprdtected, he
cannot be discharged unless it is for good
cause shown. Thus, the employee has more
rights than he had in the pre-Lloyd--LaF'ol-
lette days under the doctrine of Keirn. Mr.
justice Rehnquist noted:
The Act proscribes only that public speech
which improperly damages and impairs the
reputation and efficiency of the employing
agency, and it thus imposes no greater con-
trols on the behaviour of federal employees
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than are necessary for the protection of the
(overiunent as an employer.26
Concerning the "void for vagueness"
claim, the court set out a common sense
standard by quoting with approval lan-
guage from judge Leventhal's opinion in
Meehan v. ltlacy,27 to the effect that the
employee could not reasonably expect to
keep his job while inveighing in public
against his employer.
The inability to precisely define what
speech is protected played a major role in
the decision in. United States Civil Service
Commission v. National Association of Let-
ter Carriers.23 In that decision upholding
the 1-latch Act against an attack as being
unconstitutionally broad and vague, the
court noted:
dent of the local policeman's union, circu-
lated to the press an anonymous letter con-
taining a derogatory poem about the
governor in response to a plan for admit-
ting more Panamanian natives into the
local police force. In language quoted
approvingly in Arnett, the court upheld the
removal for conduct unbecoming a police
officer.32
We think it is inherent in the: employment
relationship as a matter of common sense
if not of common law that a government
employee . . . cannot reasonably assert a
right to keep his job while at the same time
he inveighs against his superior in public
with intemperate and defamatory cartoons.
Dismissal in such circumstances neither
comes as an unfair surprise nor is so unex-
pected as to chill freedom to engage- in
appropriate speech.33
There are limitations in the English lan-
guage with respect to being both specific
and manageably brief, and it seems to us
that although the prohibitions may not satis-
fy those intent on finding fault at any cost,
they are set out in terms that the ordinary
person exercising ordinary common sense
can sufficiently understand and comply with,
without sacrifice to the public interest.211
In an era in which public dissent has be-
come prevalent and there has developed
increasing awareness of the rights of the
previously unheard and unrepresented, the
judicial trend has come more and more
to represent that often elusive balance set
up in Pickering between the constitutional
rights of the public employee on the one
hand and the necessity for the public em-
ployer to function and carry out the mission
for which it exists. Thus, an agency cannot
summarily dismiss an employee for wear-
ing a black armband on Moritorium Day,3'
but a Veterans Administration doctor can
be fired for wearing a dove pin when that
pin disturbs the psychiatric patients with
whom he works.31
There are several decisions which con-
sider the free speech rights of the public
employee and his relationship to his em-
ployer. In R Meehan v. Macy, the plaintiff,
who was a Canal Zone policeman and presi-
The Court went on to say that-
While a free society values robust, vigorous
and essentially uninhibited public speech
by citizens, when such uninhibited public
speech by Government employees produces
intolerable disharmony, inefficiency, dissen-
sion and even chaos, it may. be subject to
reasonable limitations, at least concerning
matters relating to the duties, discretion
and judgment entrusted to the employee
involved. 34
However, in Tygrett v. Washington,'5 a
probationary policeman with the District
of Columbia police department was fired
after being reported in the paper as having
made statements in favor of a "sick-in" by
police officers if a Congressional pay raise
was not passed. The district court found
that the statements were not protected
since they disrupted the operations of the
police departinernt. On appeal, however,
the Court of Appeals reversed on the
ground that there was no evidence in. the
record to show that the statements had an
actual deleterious effect on 'the operations
of the department. That court noted:
"Policemen, like teachers, and lawyers, are
not relegated to a watered-down version of
constitutional rights." To be sure, as a police-
280 PUBLIC PERSONNEL MANAGEMENT, SEPTEMBER-OCTOBER 1975
man app(
of accolrr
low office
however,
basis tha
tected i
freedom
could he
that the
affected
the elfin
force."'''
Thus, a
could not
to a loci
volvernen
sufficient)
ments to
progra111'i
science'
U.S. invc
found n(
flicted w
tracted t
work of
sion bete
and gen
operatioi
The
speech
where i
teacher
Midway
statemcl
school o
In hold
protect(
court n
Pickerim
tribute(
all of
either i
ing pr(
was 111
all inst
of Del
nation:
wislle(1
private
for mm
classro
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 ion, circu-
letter con-
11)611t the
for admit-
into the
re quoted
npheld the
g a police
,mployment
lnlnn sense
government
ly assert a.
swine time
r in public
,y cartoons.
;es neither
is so unex-
engage in
st, vigorous
)lie speech
ited public
,s produces
icy, dissen-
Subject to
concerning
discretion
employee
ington,35 a
is District
was fired
as having
sick-in" by
l pay raise
nut found
protected
ons of the
however,
tI on the
nee in the
arts had an
operations
toted:
awyers, are
i version of
as a police-
man app "int was hound to a high standard In 11alogons era of evolving personnel
" b
fe
A-
ApprOd&f RL a ft pu c. IIc coili'd
low ot 1 ac. e oou not,
eas or to pu
basis that infringes his constitutionally pro-
tectod interests-especially his interest in analogous because if one looks at the
freedom of speech." Rather, his discharge Ti1grett decision closely you can see that
could be justified only by a specific finding the speech there lacked any nexus to of-
that the statements in question adversely ficiency of the sere ice since there was no
affected his efficiency as a police officer or showing "the speech in question ad
the efficiency of the Department as a police s g force.3'1 versely affected his efficiency as a police
elit
i 1
f 1 D t
however, be banished from the. force "on a
Thus, a Peace Corps volunteer in Chile
could not be dismissed for writing a letter
to a local newspaper criticizing U.S. in-?
volvement in Vietnam since he was not
sufficiently high in the agency for his state-
ments to have an adverse effect on their
program" but a "Declaration of Con-
science" by VISTA volunteers opposing
U.S. involvement in the Vietnam War was
found not to be protected since it "con-
flicted with a definite goal of VISTA, de-
tracted time and effort from the primary
work of the volunteers, promoted dissen-
sion between volunteers and their superiors,
and generally interfered with the regular
operation of VISTA.33
The protection or lack thereof of the
speech in question clearly depends upon
where it is spoken and who hears it. A
teacher at a Navy Dependents School on
Midway Island was removed for a written
statement accusing the principal of the
school of incompetence and lack of ethics,"
Iii holding that it was far from clear that
protected speech was not involved, the
court noted a significant difference from
Pickering in that the teacher only dis-
tributed the statements to four individuals
all of whom had official responsibilities
either in regard to the school or the teach-
ing profession, whereas Pickering's letter
was published in a newspaper. Similarly,
an instructor assigned. by the Department
of 'Defense to teach English to foreign
-nationals could make any statements he
wished concerning the Vietnam War in
private to his friends but could be removed
for making the same statements in the
classroon1.40
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etween an
s
DP81 t0'03f kOT32dEf l bb6'f-'tt ' . .
i
oflcer or the efficiency o t IC epa
as a Police force." In Norton v. Macy, the
Court of Appeals for the District of Colum-
bia held that a federal employee could not
be dismissed for homosexuality unless a
nexus could be shown between the horno-
sexual conduct and the efficiency of the
service. That court noted:
[A] finding that an employee has done some-
thing immoral or indecent could support a
dismissal without further inquiry only if all
immoral or indecent acts of an employee
have some ascertainable deleterious effect
on the efficiency of the service. The range
of conduct which might be said to anion
prevailing mores is so broad and varied that
we can hardly arrive at any such c'onclusiol;.
without reference to specific conduct. Thus,
we think the sufficiency of the charges
against appellant must be evaluated in terms
of the effect on the service of what in par-
ticular he had done or had been shown to
be likely to do41
From Norton has come a line of cases
holding that what an agency or even the
general public might think of as ininioral
cannot be grounds for removal or disquali-
fication without a thorough analysis of
what job is in question, the nature of the
activity, and how it would effect that job
and agency. A postal clerk cannot be re-
moved merely for living discretely with a
how-
woman to whom lie is uot.inarricd.42
ever, it has been held that a homosexual
activist can be declared unsuitable for en-
gaging in publicity seeking activities in
which he often identifies himself as a fed-
eral employee in the course of such activ-
ities or publicity.43 A more Coding that the
employment of a homosexual person in the
government service might bring that ser-
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vice into disrepute is too general and un-
specific to demonstrate a tangible detriment
to the federal service.44 When presented
with evidence that a homosexual had en-
gaged in prior behavior that included
solicitation on the job, however, the govern-
ment had a right to inquire further to
determine whether such activity was likely
to recur and to disqualify an applicant who
refused to cooperate 41
Some activities are clearly related to the
efficiency of the service, and the nexus can
be presumed. This is true of criminal activ-
ities, particularly homicide.4? But, in most
instances the trend is clear-discipline for
off-the-job conduct can only be effected
on a clear finding that such conduct has a
-direct and substantial effect on the per-
formance of the activity's mission. This has
been found to be true, for example, by the
reluctance of courts to uphold a dismissal
where an employee has been fired for the
nonpayment of a single debt.47
As noted earlier nexus concepts extend
into constitutional rights areas such as free
speech. They are indeed the overlay to all
areas of personnel law. Thus, in the equal
employment opportunity area the Supreme
Court used nexus concepts, in McDonnell
Douglass v. Green, in noting that an em-
ployer could refuse to rehire a person who
had engaged in unlawful conduct directed
against the company.48
Likewise, in Sugarnwn v. Dougall, the
Supreme Court struck clown New York
State's across-the-board prohibition on em-
ployment of aliens in clear nexus language:
We hold that a :flat ban on the employment
of aliens in positions that have little, if any,
relation to a state's legitimate interest, can-
not withstand scrutiny under the Fourteenth
Amendment.
As if to drive home the nexus point the
court continued:
Neither do we hold that a State may not,
in an appropriately defined class of positions,
require citizenship as a qualification for
office. Just as < the r r uners of the Constitu-
tion intended the States to keep for them-
selves, as provided in the Tenth Amend-
ment, the power to regulate elections," .. .
"each Slate has the power to prescribe the
qualifications of its officers and the manner
in which they shall be chosen . . ."
And this power and responsibility of the
State applies not only to the qualifications of
voters, but also to persons holding state
elective or important non-elective executive,
legislative and judicial positions, for officers
who participate directly in the formulation,
execution, or review of broad public policy
perform functions that go to the heart of
representative government. There as. Judge
Lumbard phrased it in his separate con-
currence is "where citizenship boars some
rational relationship to the special demands
of the particular positions."49
In other words, in such cases a nexus
exists between citizenship and the posi-
tions.50
The First Amendment and nexus cases
also demonstrate another judicial trend,
namely the increased emphasis on consti-
tutional rights. In addition to the free
speech issues in Arnett v. Kennedy, supra,
the plaintiff had urged that Civil Service
regulations and the Veterans Preference
Act were unconstitutional in not providing
for a hearing prior to termination. This
argument was based on earlier decisions of
the Supreme Court which had held that an
individual's property oould not be taken
without a prior hearing.sr
The Supreme Court held-in an Arnett
opinion signed by three judges and con-
curred in for different reasons by three
other judges-that the statutory and regu-
latory procedures for the removal of non
probationary employees are constitutionally
adequate. The three judges who wrote the
plurality opinion on that question held that
the same statute graniing federal nonpro-
bationary employees the right not to be
removed except for the efficiency of the
service also provided the procedures by
which that "cause" would be determined
and "we decline to conclude that the sub-
stantive right may be viewed wholly apart
from the procedure provided for its en-
forcement."
The employee's statutorily defined right is
not it
cause
as cnf(
gress 1
of can
Thus,
Mr. Jus
nature
tinned
defined
ated by
cedural
Constit
provide
In it
and BL
stitutio'.
clifferci
when
tinned
"cause
proper,
to Fifi
the eni
notice
ing we
that in
interes
emplo
the in
of his
elude(
satisfio
Mr.
expre'
quires
that i
clays ,
presci
IIowc
Kenn
that I
char,
accus
final
cli,dc
parti:
heari
curri
state
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 ~
lions,. .. .
t+scribe the
:he manner
lity of the
ifications of
[cling state
executive,
for officers
rmulation,
tblic policy
e hear: of
as judge
.irate con-
)cars some
it demands
s a nexus
the posi-
rxtas cases
ial trend,
3I1 eoristi-
the free
/y, supra,
it Service
reference
providing
ion. This
visions of
ld that an
be taken
in Arnett
and con-
by three
mnd regu-
1 of non-
tutionally
wrote the
held that
I nonpro-
ot to be
yofthe
Mures by
ten-nined
the sub-
tly apart
r its en-
:l right is
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not a guarantee against removal without
cause in the abstract, but such a guarantee
as enforced by the procedures which Con-
gress has designated for the determination
of cause.52
Thus, the plurality opinion, written by
Mr. Justice Rehnquist, reasoned that the
nature of an employee's interest in con-
tinued federal employment is necessarily
defined and limited by the ,procedures cre-
ated by Congress and no additional pro-
cedural protections are required by the
Constitution other than those expressly
provided in the statute.
In a concurring opinion, justices Powell
and Blackmun agreed that the act is con-
stitutional but based that conclusion on
different reasoning. They concluded that
when statutory provisions guarantee con-
tinued employment in the absence of
"cause" for discharge, the employee has a
property interest in his job which is subject
to Fifth Amendment protections. Hence,
the employee may not be removed without
notice and a hearing. The question remain-
ing was therefore the appropriate time for
that hearing. The judges then balanced the
interest of the government (maintenance of
employee efficiency and discipline) against
the interest of the employee (continuation
of his income during the interim) and con-
cluded that a post-termination hearing
.satisfied the requirements of due process.
Mr.-Justice White, in a separate opinion,
expressed his belief that due process re-
quires a pre-termination hearing but found
that the provisions in the statute for 30-
days notice and the right to make a written
presentation satisfied that requirement,
kjowever, Mr. Justice White found that
Kennedy had been denied due process in
that--t1. same person who made the initial
charges against - him (and whom he had
accused of `taking a bribe) also made the
final decision on termination. White con-
cluded that due process requires an im-
partial hearing officer at the preliminary
hearing stage. Both the majority and con-
curring opinions responded to this last
statement. In each case they found there
JUDICIAL TRENDS IN PERSONNEL MANAGEMENT
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is no statutory requirement of an impartial
dccisionmaker at the preliminary stage ancI
no such constitutional requirement. This is
explainable because neither the opinion for
the court nor the concurring opinion find a
need for, nor place much emphasis on, pre-
termination procedures. Therefore, the fact
that an impartial dccisionmaker would pre-
side at the post-termination appeal stage
would cure any possible error.
Three judges dissented on the basis of
their opinion that the Constitution requires
a full-blown hearing prior to the discharge
of a nonprobationary federal employee.
Beyond considering the question of the
property rights of federal employees, in
Arnett, the court also reiterated its position,
taken earlier in Board of Regents v. Roth,
that the deprivation of a liberty interest
of a public employee entitled him to a
hearing. That liberty interest was defined
as:
not offended by dismissal from employ-
ment itself, but instead by dismissal based
upon an unsupported charge which could
wrongfully injure the reputation of an em-
ployee.53
This concept has taken on considerable
importance for the courts when dealing
with the rights of federal employees having
something less than career status. The pro-
visions of Civil Service Commission regu-
lations providing for summary removal of
probationers have been subject to several
attacks in the courts as being an unconsti-
tutional deprivation of their liberty and
property rights. All the courts that have
considered this question have held that
probationary employees do not have suf-
ficient property rights to entitle them to
a hearing upon termination.
In Sampson v. Murray, supra, the court
notes:
We are dealing in this case not with a
permanent Government employee, a class
for which Congress has specified certain
substantive and procedural protections, but
with a probationary employee, a class which
Congress has specifically recognized as en-
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titled to less comprehensive procedures... .
It is also clear from other provisions in the
Civil Service statutory framework that Con-
gress expected probationary employees to
have fewer procedural rights than perma-
nent employees in the competitive service.
For example, preference eligibles, commonly
veterans, are entitled to hearing procedures
extended to persons in the competitive ser-
vice only after they have completed "a
probationary or trial period." (Emphasis in
original) 54
As noted in Sayah v. United States of
America, probationary employees do not
have a property right in their employment
sufficient to give them a due process right
to a heating since "a probationary em-
ployee is not promised a lasting job after
one year or even that he is guaranteed a
full year's stay."55 The court noted that
the regulation "unambiguously sets forth
a `watchful waiting' period in which the
probationer can be terminated."56
However, if a probationer is stigmatized
by his removal and if, in essence, the cause
for the removal would effectively preclude
him from obtaining other employment, he
is entitled to a hearing. Such stigmatization
constitutes the deprivation of a liberty
interest.57 Mere removal alone is not such
a deprivation.58 However, a "dismissal
which becomes public and which suggests
immorality or dishonesty necessitates due
process."S6
This same issue is being litigated regard-
ing federal excepted-service employees. As
vet, no recent court decisions have been
issued on this point.60
In Lindsay v. Kissinger,61 the court held
that the State Department's regulations and
procedures governing the selection-out for
inadequate performance of officers in the
Foreign Service of the United States In-
formation Agency (USIA) without notice
are constitutionally defective in that they
deny him the right to be heard and the-
right to confront his accusers.62 In light of.
the later decisions in Arnett v. Kennedy,
supra, this decision is subject to question.
The starting point in an analysis of the
question presented is to determine "the
nature of the interest at stake ... we must
look to see if the interest is within the
Fourteenth Amendment's protection of lib-
erty and property."03 The court found that
plaintiff had a property interest because of
an "expectation of continued employment
absent an official finding of inadequate per-
formance." But such expectation cannot
withstand analysis.
Unlike civil service employees who have
protections of the Veterans Preference Act
or competitive civil service employees
covered by the Lloyd-LaFollette Act, who
can only be discharged for "such cause as
will promote the efficiency of the service"
as determined by certain procedures (5
U.S.C. ? 7501) and, hence, have tenure;
Foreign Service Officers were specifically
denied tenure by the Foreign Service -Act
of 1946, It is obvious that even if all
Foreign Service Officers met minimum
qualifications and standards (or higher),:
ten percent of them would fall into the
bottom tenth percentile and would be sub-.
ject to selection-out, The mutual under.-----
standing between Lindsay and the State
Department was not an etpec,tancc Of cot i
tinuation of employment but, rather, an
annual review of iris employment by selec-_-
tion boards for selection-out purposes.
Rather than tenure, plaintiff was in the _e
same position as a probationary employee-
continuously subject to review, without
tenure, for selection-out purposes. In effect,
plaintiff had a year-to-year employment
which could be terminated by the State
Department at any time as a consequence
of its selection-out techniques. While the
court is correct, in that "Congress, by ap-
propriate legislation, determined some time
ago that officers, once appointed, should
not have permanent tenure . " it is
incorrect when it uses. Lloyd-LaFollette
language (failure to maintain minimum
standards . . , to "promote the overall ef-
ficiency of the services ...") to define the
selection-out process. - In one sweep, the
court has recognized that plaintiff lacks
tenure while defining his rights as tenure.
That part of the Act in question, 22 U.S.C
1003, prov
of an offic
dards of h
differentia
to remova
nology "c
"mutually
tiff lacks
lection-ot,
by the w
tion-out s
_Thus, pla
ployment
are define
cess and
court in f
is reserve
Aside t
merit disc
found a c
interest a
associates
stigma ai
Unlike
Constant
ment did
of infam
Instead,
retired fi
lower th
leged sti
Regents
The S t
dent, c
that rr
and a,
not ba
a char
guilty
done 5
`[w]ho
honor
what t
and ar
W isco
437. 1
191; J
v. Mr,
Loveii
1101)1
opiaili
367 t
proses
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... we must
within the
etion of lib-
t found that
t because of
employment-.
.lequate per-
tion cannot
s who have
ference Act
employees
to Act, who
LAI) cause as
he service"
cedures (5
ive tenure,
specifically
service Act
!ven if all
minimum
ir higher),
:1 into the
1d be sub-
idunder-.
the State
cc of cpn.-
wther, an
brl selec-
purposes.
as in tile,-,
aployee-
without
In effect,
ployment
the State
sequence
Vi ile the
, by ap-
)me time
should
it is
air ollette
nininlum
-crall ef-
~fine the
ep, the
if lacks
tenure.
i U.S.C
1003, provides for selection-out on the basis
of a 3 officer not measuring up to the stan
dards of his class and has been specifically
drflerentiated from 22 U.S.C. 1007 referring
to removal. for carise and using the termi-
nology "efficiency. of the service."14 The
"mutually explicit understanding" that plain-
tiff lacks tenure and is subject to the se-
lectioiout process is further demonstrated
by the wide publicity given to the selec-
tion-out system in the State Department.
-,Thus, plaintiff's interest in continued em-
ployment is "created and [its] dimensions
are defined" by the very selection-out
pro- system. which is set aside by the
court, in favor of the type of. hearing which
is reserved for tenured employees.','
Aside from the "property interest" argu-
ment discussed above, the court apparently
found a constitutionally protected "liberty"
interest arising out of a supposed "stigma"
associated with selection-out. But no such
stigma attaches to selection-out.
Unlike the situation' in Wisconsin v.
Constantineau, supra, the State Depart-
inent did not brand plaintiff with "a badge
of infamy" and post it all over the state.
Instead, plaintiff was simply involuntarily
retired from his position because he ranked
lower than others. The parameters of al-
leged stigma is also defined in Board of
Regents v. Roth:
The State, in declining to rehire the respon-
dent, did not make any charge against him
that might seriously damage his standing
and associations in his community. It did
not base the nonrenewal of his contract on
q charge, for example, that he had been
guilty of dishonesty, or immorality. Had it
done so, this would be .a different case. For
`[wv.]hcie a person's good name, reputation,
honor or integrity is at stake because of
what the government is doing to him, notice
and an opportunity -to be heard are essential.'
Wisconsin v. Constantineau, 400 U.S. 433,
437. Wieman v. Updegraff, 344 U.S. 1.83,
191; Joint Anti-Fascist Refugee Committee
v. McGrath, 341 U.S. 123; United States V.
Lovett, 328 U.S. 303, 316-317; Peters v.
Hobby, 349 U.S. 331, 352 (concurring
opinion). See Cafeteria Workers v. McElroy,
367 U.S. 886, 898. In such a case, due
process would accord an opportunity to re-
fate the charge before University officials.
In the present case, however, there is no
suggestion whatever that the respondent's
interest in his `good name, reputation, honor
or integrity' is at stake.
Similarly, there is no suggestion that the
State, in declining to re-employ the re-
spondent, imposed on him a stigma or otte r
disability that foreclosed his freedom to take
advantage of other employment opportu-
nities. The State, for example, did not fir
yoke any regulations to bar the. respondent
from all other public employment in State
universities. Had it done so, this, again,
would be a different case. For `[t] be de
prived not only of present government em-
ployment but of future opportunity for it
is no small injury . . .' Joint Anti-Fascist
Refugee Committee v. McGrath, supra, at
185 (Jackson, J., concurring). See Truax v.
Reich, 239 U.S. 33, 41. The Court has held,
for example, that a State, in regulating
eligibility for a type of professional employ-
ment, cannot foreclose a range of opportu-
nities `in a manner . . . that contravene[sl
due process,' Schware v. Board of Bar
Examiners, 353 U.S. 232, 238, and, spe-
cifically, in a manner that denies the right
to a full prior hearing. Willner v. Com-
mittee on Character, 373 U.S. 96, 193. See
Cafeteria Workers v. McElroy, supra, at
898. In the present case, however, this prin-
ciple does not come into play.fi6
Here, too, the State Department did not
base discharge on a charge of "dishonesty
or immorality;" nor did State draw into
issue plaintiff's "good name, reputation,
honor, or integrity;" nor did State "invoke
any regulations to bar the respondent from
all other public employment;" nor foreclose
plaintiff's eligibility for a professional li-
cense. "Mere proof, for example, that his
record of nonretention in one job, taken
alone, might make him somewhat less at-
tractive to some other employers would
hardly establish the kind of foreclosure of
`liberty"'.G7 While any reason for dismissal,
other than a reduction in force, is likely to
have some reflection on ability, tempera-
ment, or character, not every dismissal in-
volves a_stigma. in a constitutional sense68
To so hold would be to make the excep-
tional case for hearing [stigma] into the
general and would require hearings in all
JUDICIAL TRENDS IN PERSONNEL. MANAGEMENT
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discharge cases except perhaps for reduc-
tion in force.69 Indeed, discharge by selec-
tion-out is clearly less of an indication of
lack of ability than is discharge of a civil
service probationer since selection-out does
not result, necessarily, from lack of ability
or even, as the court below erroneously be-
lieved, from lack of meeting certain mini-..
mum standards, Rather, it is a function of
competitive ranking among one's peers.
Unlike probationers, some Foreign Service
Officers must be in the bottom tenth per-
centile and some must be subject to selec-
tion-out.
Another area in which the courts have
been given scrupulous attention to the con-
stitutional rights of federal employees has
been that of the protection of Fifth Amend-
ment rights against self incrimination.
Clearly, a federal employee cannot be re-
moved for failure to answer questions put
to him during an investigation where his
answers might put him in jeopardy of
criminal prosecution and where he is not
informed that his answers will not be used
in such a criminal prosecution.70 As the
Supreme Court leas noted in Gardner v.
Broderick:
The mandate of the great privilege against
self-incrimination does not tolerate the at-
tempt regardless of its ultimate effectiveness,
-to coerce a waiver of the immunity it con-
fers on penalty of the loss of employment.71
The privilege against self incrimination
is so strong that the mere comment by the
Civil Service Commission on the fact that
an employee refused to answer a question
put to him, although lie was removed on
other grounds, was sufficient to invalidate
the removal.72 However, testimony ob-
tained under a threat of removal for failure
to answer can be used as a basis for re-
moval since the nature of that threat re-
nnoves any possibility that the fruits of the
testimony could be used in any subsequent
criminal trial.73
On the other hand, employees have no
abstract right to be represented by counsel
when being interviewed by their employer.
Just this past term the Supreme Court in
National Labor Relations Board v. Wein-
garten, Inc.,74 a private employment case,
held that it was an unfair labor practice, vio-
lative of ? 7 of the National Labor Relations
Act ("to engage in ... concerted activities
for mutual aid and protection," a clause not
found in E.O. 11491, the federal labor rela-
tions order) for an employer to discharge
an employee for refusing to be interrogated
in a situation which reasonably looked
toward discipline without allowing the em-
ployee union representation. But, signifi-
cantly, while the court held that the, em-
ployer could not insist on the unrepresented
interview, the employee had no right to
such representation but instead could re-
fuse to discuss the matter if requested
union representation was denied by the
employer. In an interesting sidelight the
The employer has no obligation to justify
his refusal to allow union representation and
despite refusal, the employer is free to carry
on his inquiry without interviewing the em
ployee and thus leave to the employee the
choice between having an interview unac=
companied by his representative, or having
no interview and foregoing any benefits that
might be derived from one.75
The judicial trend in the personnel area
is a clear trend in the direction of protect-
ing the employee from any exclusion from
public employment or loss of such employ-
ment already held on the basis of any
activities on his part not related to the
performance of his job. The public em-
ployee does not relinquish his constitutional
rights when crossing the threshold of his
office. Nor can his off the job conduct.. iU
it is unrelated to the activities of his agency
or the performance of his own duties, form
the basis of disqualification or removal. On.
the other hand, when his constitutional
rights are not at issue, he is protected in
his employment relationship only to the
extent that statute or regulation provides
him with safeguards against what the
courts speak of as arbitrary or capricious
agency action. In every instance, what is
236 PUBLIC PERSONNEL MANAGEMENT, SEPTEMBER-OCTOBER 1975
sought is
whatever
important
public sei
1. 177 A
noted:
The apps
ness of tl
proper of
tion. The
the court
In the al
trary, tht
dent to t
See also, h
(1921); In
246, 259.
tently mair
federal em
specifically
they have
seen fit to
367 U.S. E
principle t
absence of
of the apt
416 U.S.
US. (31 (1
2. The
was cited
codified as
that an in(
be remove,
the e1licieu
that be be
time to an
practicable
3. The
cited as 5
codified as
preference
to be renu
the cfficien
a reasonal
adverse do
extended
service in
4. 5 G.
5. See
Privilege
Harvard I
"The liigl
Private I..
Developm,
ciety 596
Public En
6. Pe rr
ritzgerald
1972).
7. we
551 (195
(1961).
8. Unij
10X1 (19-t
Public \Y
opinion of
9. 4. 'if,
(1952);
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is Court in
tl v. 14 ein-
vrnent case,
i actice, vio-
)r Relations
,d sactivities
i clause not
labor rela-
discharge
^terrogated
hly looked
ug the crri-
lut, signifi-
at the em-
elzresented
Eo right to
could re-
requested
edbythe
iclight the
u to justify
outation and
rcc to carry
inn the em-
nployee the
-view unac-
or having
ienefits that
onnel area
of Pr?otect-
Eision from
th employ-
;is of any
cd to the
iublic em-
istitutional
old of his
.onduct, if
his agency
sties, form
moval. On
istitutional
oteoted in
Ely to the-
) provides
what the
capricious
-, what is
sought is a nexus, a relationship, between
whatever conduct is at issue and that most
important concept "the efficiency of the
public service."
Notes
1. 177 U.S. 290, 293, (1899). As the Court
noted:
The appointing power must determine the fit-
ness at the applicant; whether or not he is the
proper one to discharge the duties of the posi-
tion. Therefore it is one of those acts over which
the courts have no general supervising power.
In the absence of specific provision. to the con-
trary, the power of removal from office is inci-
dent to the power of appointment.
See also, Eberlein v. United States, 257 U.S. 82
(19-21) ; In the Matter of Hennan, 13 Pet. 230,
246, 259. The U.S. Supreme Court has consis-
tently maintained the position that the rights of
federal employees are governed by statute; that
specifically referring to the question of dismissal,
they have only such protection as Congiess has
seen fit to extend. Cafeteria Workers v. McElroy,
367 U.S. 886 (1961) ("It has become a settled
principle that government employment, in the
absence of legislation, can be revoked at the will
of the appointing officer"); Arnett v. Kennedy,
416 U.S. 134 (1974); Sampson v. Murray, 415
U.S. 61 (1974).
2. The Lloyd-LaFollette Act, adopted in 1912,
was cited as 5 U.S.C. ? 652(a). Part of it is now
codified as 5 U.S.C. ? 7501. This section provides
tl,at.an individual in the competitive service may
be removed "only for such cause as will promote
the efficiency of the service," and further requires
that he be given notice of the charges, a reasonable
time to answer and a written decision as soon as
practicable.
3. The Veterans Preference Act was originally
cited as 5 U.S.C. ? 863. Parts of that act are now
codified as 5 U.S.C. ? 7512. That statute gives a
preference. eligible (veteran) employee the right
to be removed only for such cause as will promote
the efficiency of the service, 30 days written notice,
a reasonable time to answer and notice of an
adverse decision. The provisions of the act were
extended t:o all employees in the competitive
service in 1962 by Executive Order 11491.
4. 5 CFR Part 752.
5. See Alstyne, "The Demise of the Right-
,Privilege Distinction in Constitutional Law," 81
Harvard Law Review 1439 (1968); Comment,
"The Bight of Federal Agencies to Control the
Privatxs Lives of their Employees-Some Recent
Developments," 21 Catholic University Law Re-
view 596 (1972); Weymann, Civil Rights and the
Public Employee 31-33 (1911).
6. Perry v. Sindermann, 408 U.S. 593 (1972);
Fitzgerald v. Hampton, 467 F.2d 755 (D.C. Cir.
1972).
7. Slochower v. Board of Education, 350 U.S.
551 (1956); Torcaso v. Watkins, 367 U.S. 488
(1961).
8. United Public Workers v. Mitchell, 330 U.S.
100 (1947); Garner v. Los Angeles Board of
Public Works, 341 U.S. 716 (1951), concurring
opinion of Mr. Justice Frankfurter at 725.
9. Wieman v. Updcgraff, 344 U.S. 183, 192
(1952); Scott v. Macy, 349 F.2d 182 (D.C. Cir.
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1985); Bruns v. Punnerleau, 319 F. Supp. 58 (D.
Md. 1970).
10. Ibid.
11. Scott v. Macy, 349 F.2d 182, 1.834 (D-C.
Cir. 1965); Norlauder v. Schleck, 345 F. Supp.
595 (D. Minn. 1972 .
12. Accardi v. S aaughnessy, 347 U.S. 260
(1954); Service v. Dulles, 354 U.S. 363, 372
(1957) ("regulations validly prescribed by a gov-
ernment administrator are binding upon him as
well as the citizen, and this principle holds even
when the administrative action under review is
discretionary in nature."). This principle applies
even where an agency could have summarily re-
moved an employee who, as a member of, the
excepted service had rio `t=ights hinder the Veterans
Preference Act, but since; lie , was {,ratuitously
givefi a reason for his removal ? and that reason
involved national security, he, was entitled to the
procedural rights of employees removed on na-
tional securify' rounds, Vitarelli v. Seaton, 359
U.S 59f Under the Vitarelli. doctrine, the
employee must be given the greatest procedural
I5iotection to which he is entitled under any
possible regulatory standards. See. Cole v, Young,
351 'U. S. 536 (1955). Accord; Slowick v. Hamp-
ton, 470 F.2d 467 (D.C. Cir. 1972); O'Shea v.
Blatchford, 346 F. Supp. 742 (S.D.N.Y. 1972);
Massman v- Secretary of Housing and Urban De-
velopment, 332 F. Supp. 89=1 (D.D.C. 1971 ).
1.3. Hargett v. Srcmrnerfteld, 249 1i'.2d 29 (D.C.
Cir. 1957).
14. McTiernan v. Gronouski, 337 F2d 31, 34
(2nd Cir. 1964).
15. Finfer v. Caplan, 344 F.2d 38, 40-41 (2nd
Cir.), cert. denied, sub non Finfer v. Cohen, 382
U.S. 883 (1965).
16. Charlton v. United States, 412 F.2d 290
(3rd Cir. 1969).
17. Halsey v. Nitze, 390 F.2d 142 (4th Cif.),
cert. denied, 392 U.S. 939 (1968).
18- Toohey v. Nitze, 429 F.2d 1332 (9th Cir.
1970).
19. Vigil v. Post Office Department, 406 land
921 (10th Cir. 1909).
20. Polcover v. Secretary of the Treasury, 47'1
F?2d 1223 (D.C. Cir. 1973); Dabn,-y v. Freemrian,
358 F.2d 533 (D.C. Cir. 1905). In the er,nal
employment opportunity area, tbe, standard of re-
view under 42 U.S.C. ? 2000e-16 is c'.mrrcntly
evolving, but appears to require= that there be
more than substantial evidence in the record to
justify the agency decision. Thus, sonic courts are
requiring that the absence of discrimination be
shown by the preponderance of the evidence.
Hackley v. Johnson, 360 F. Supp. 1247 (D.D.C.
1973), appeal pending, cited with approval in
Saloue v. United States, 511 F.2d 902 (10th Cir.
1975) ' and Chandler v. Johnson, 9th Cir. No. 74-
1596 (April 25, 1975). However, other courts
have found a substantial evidence standard to be
adequate, Lein.ster v. Engroan, 8 E.P.D. Paragraph
9774 (D.D.C. 1974) while in yet other decisions
the complainant has been required to prove dis-
crimination by a preponderance of the evidence.
Abrams v. Johnson, 383 F. Supp. 450 (N.D.
Ohio 1974).
21. McAuliffe v. Mayor, etc., of City of New
Bedford, 155 Mass. 216, 29 N.E. 517 (1892).
22. 391 U.S. 563 (49018).
23. Ibid.
24. 416 U.S. 134 (1974).
25. Kennedy v. Sanchez, 349 F. Supp. 863
(NJ). 111. 1972).
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26. 40 L. Ed. at 38.
27. 392 F.2d 822 (D.C. Cir. 1968).
28. 413 U.S. 548 (1973)
29. 113 U.S. at 578 & 579.
30. Peale v. United States, 325 F. Supp. 193
(N.D. 111. 1971).
31. Smith v. United States, 502 F.2d 512 (5th
Cir. 1974).
32. 40 L. Ed. at 37.
33. 392 F.2d at 835.
:34. 392 F.2d at 833.
35. 346 F. Supp. 1247 (D.D.C. 1972).
36. Tytrett v. Washington, D.C. Cir. No. 1392-
72 (October 23, 1974).
37. Murray v. Vaughn, 300 F. Supp. 698 (D.R,
1. 1969).
38. Murphy v. Facendia, 307 F. Supp. 353
(1). Colo. 1969). See also lanarelli v. Morton,
327 F. Supp. 873 (E.D. Pa. 1971), aff'd, 463
F.2d 179 (3rd Cir. 1972) ("A proper balance
between freedom of expression and discipline in
government service should not unreasonably re-
strain expressions of opinion and should permit
and encourage full inquiry into allegations of
racial and religious discrimination. Yet, at the
same time, this balance would protect these rights
without an unwarranted restriction of the right
of the government to discipline these employees
whose conduct unjustifiably causes demonstrable
adverse impact on the efficient operation of the
government.") .
39. Ring v. Schlesinger, 502 F.2d 479 (D.C.
Cir. 1974).
40. Goldwasser v. Brawn, 417 F.2d 1169
(D.C. Cir. 1969), cert. denied, sub nom Gold-
wasser v. Seamans, 397 U.S. 922 (1970). Another
issue which arises in this context is the question of
whether the statements were made with "'actual
malice'-that is, with knowledge that it was false
or with reckless disregard of whether it was false
or irot." New York Times Co. v. Sullivan, 376
U.S. 254, 279 (1964). An employee is entitled to
first amendment protection only where the state-
ments are not made with actual malice. Ruderer
v. United States, 188 Ct. Cl. 456, 412 F.2d 1285
(1969). cert. denied, 398 U.S. 914 (1970). cf.
Old Dominion Branch No. 496 N.A.L.C. v.
Austin, 412 U.S. 917 (1974). However, in some
instances, such as sending anonymous letters to the
wife of a fellow employee accusing him of wrong-
doing, the malice can be presumed. Krennrich v.
United States, 169 Ct. Cl. 6, 340 F2d 653 (1965).
41. 417 F.2d 1161 (D.C. Cir. 1969).
12. Mindel v. United States Civil Service Com.
mission, ;312 F. Supp. 485 (N.D. California 1970).
43. Singer v. United States Civil Service Com-
mission, (W.D. Wash. March 29, 1974), appeal
pending, cf. McConnell v. Anderson, 451 F.2d 193
(8th Cir. 1971). While the courts have been vir-
tually unanimous in holding that homosexuality
per se cannot be grounds for exclusion from public
employment, there has been a marked reluctance
to place them in positions where they may cause
a disturbance or effect the lives of young people.
Burton v. Cascade School District Union High
School, --- F.2d (9th. Cir. 1975);
Acanfora v. Board of Education of Montgomery
County, 359 F. Supp. 843 (D. Md. 1973), rev'd
on other grounds, 491 F.2d 498 (4th Cir. 1974).
But see Anonymous v. Macy, 398 F.2d 318 (5th
Cir. 1968) which held that an administrative de-
termination that an employee was validly dismissed
for homosexuality was "not reviewable as to the
wisdom or good judgment of the department head
in exercising his discretion." The case is a throw-
back to decisions reviewing; only for procedural
compliance and of doubtful validity today.
44. Society for Individual Rights v, Hampton,
N.D. California, October 31, 1973.
45. Richardson v. Hampton, 345 F. Supp. 600
(D.D.C. 1972). This issue frequently arisess in the
context of the granting or denial of security clear-
ance. In Wentworth v. Schlesinger, 490 F.2d 740
(D.C. Cir. 1973) the court noted that "homo-
sexual activity may be considered in determining
the issue of security clearance in a situation where
the acceptable degree of risk to the national secur-
ity is less than the risk to the efficiency of the
service with respect to civil service employment
generally."
46. Gueory v. Hampton, D.C. Cir. October
1974.
47. White v. Bloomberg, 345 F. ' Seipp. 133
(D. Md. 1972). An employee can be 'removed
however, for being a "deadbeat" and running tip
multiple debts which interfere with his perfor-
mance on the job. Norton v. Macy, supra; Robin-
son v. Blount, 472 F.2d 839 (9th Cir. 10113).
48. 411 U.S. 792 (1973).
49. 413 U.S. 634 (1973).
50. The issue of the employment of aliens by
the federal government has not as yet peen settled.
Mow Sun Wong V. Hampton, 500 F.2d 1031 (9th
Cir. 1974), review granted 43 U.S.L.W. 3044
(1974), set down for rearg_urnent.
51. A hearing prior to termination had been
required before the termination of welfare benefits,
Goldberg v. Kelly, 397 U.S. 254 (1970); pre-
judgment replevin, Fuentes v. Shevin,.407 U.S.
(1972); prejudgment garnishment Snaidach v.
Family Finance Corp., 395 U.S. 337 (1969).
52. 40 L. Ed. at :32. Sec also Snead v. Dept of
Social Services 355 F. Supp. 764 (S.D.N.Y.. 1973)
vacated 416 U.S. 977 (1974), for an application
of Arnett to a state employment situation.
53. 408 U.S. 564 (1972).
54. 415 U.S. at 80.
55. 355 F. Supp. 1008 (C.D. Calif. 1973).
56. See also Donovan v. United States, 433
F.2d 522 (D.C. Cir. 1970); Jaegar v. Freeman,
410 F.2d 528 (5th Cir. 1960); Medoff v. Freeman,
362 F.2d 472 ( 1st Cir. 1966); Krukar v. Alex-
ander, 386 F. Supp. 1112 (N.D. 111. 1974).
57. Wisconsin v. Consta;ttineau, 400 U.S. 433
(1970).
58. Jenkins v. United States Post Office, 475
F.2d 10.56 (9th Cir. 1973), cert. denied, 414 U.S.
866 (1974); Shirck v. Thomas, 486 F.2d 691.
(7th Cir. 1973). But see Wildertnan v. Nelson,
467 F.2d 1173 (8th Cir. 1972). The question of
what constitutes a stigma has never been ade-
quately resolved although it appears that an
accusation of disloyalty might meet the criteria.
See the Supreme Court's vacation of Bennett v.
United States, 356 F.2d 525 (Ct. Cl. 1966) on
the basis of the dissenting opinion of judge Davis
to the Court of Claim's decision.
59. Hirsch v. Green, 368 F. Supp. 1061 (D.
Md, 197:3).
60. H. Tint'Hofftnan, at al, v. Howard Phillips
U.S.D.C. N.D. Calif. No. C-73-0751ACW (Filed
May 7, 1973). In McGinty v. Brownell, 249 F.2d
[24 (D.C. Cir. 1957), the court held that a
Schedule, A, Excepted Service employee had no
appeal rights under statute or regulation. Con-
sidering the elianges in the law in the last 18
years it would seem that is. court considering the
question today would be obligated to at least
Assessmi
Employe
Personnc
Industric
Retirem
Approved For Release 2003/04/17 : CIA-RDP81-00314R000200110007-3
 App rFto1 .tWal t 03-lQ#}1117g1itC4AtT;tDP81-Q9.3 91 9t 9.111,99971,4162 F.2d 472 (1st
cases involving probationary employees, it would Cir. 1966),
probably reach the same result. 70. Kalkines v. United States, 473 F.2d 1391
61. 367 F. Supp, 949 (D.D.C. 1973). (Ct. Cl. 1973).
62. That decision has been held not to be 71. 392 U.S.-273 (1968) at 279. See also
retroactive. Bergstrom v. Kissinger, 387 F. Supp. Uniformed Sanitation Men Association, Inc. v.
794 (D.D.C. 1974). Commission of Sanitation of the City of New York,
63. 416 U.S. 134 (1974). 392 U.S. 280 (1908); Garrity v. New Jersey. 385
64. See Chwat v. United States, 175 Ct. Cl. 392 U.S. 493 (1907); Lc kowitz v. Turley, 414 U.S.
(1966). 70 (1973).
65. See Arnett v. Kennedy, 416 U.S. 134 72. Schwartz v. Secretary o the Treasury,
(1974). 364 F. Stipp. 344 (D.D.C. 1.973 ).
66. 408 U.S. at 573-74. 73. Womer v. Hampton, 496 F.2d 99 (5th
67. 408 U.S. at footnote 13. Cir. 1974).
68. See, Cafeteria & Restaurant Workers v. 74. No. 73-1363 (February 19, 1975).
McElroy, 367 U.S. 886 (1961). 75. Slip opinion p. 7.
application
Holl.
f. 19'73 ).
States, 433
. Freeman,
r. Freeman,
Sr v. Alex-
1.974).
) U.S. 433
Office, 475
'1, 414 U.S.
F.2d 691
v. Nelson,
question of
been ade-
+ that an
he criteria.
Bennett v.
1966) on
sdge Davis
1061 (D.
rd Phillips
W (Filedt
249 F.2d
=Id that a
cc had no
tion. Con-
he last 18
dering the
o at least
E4 tJws,IKI g_ IIV i.
Public Management Services
George D. Eastman, President
Specialists in
a Police Organization, Management, and
Operations
^ Records and Communications
a Coordination and Consolidation
a Opinion Sampling
^ Administrative Selection and
Promotional Examining
1748 Elm Drive, Kent, Ohio 44240
2161678-1346
MACRAE AND ASSOCIATES
Management Consultants
Assessment Center Design and Administration
Enpployee Development
Personnel Management
Industrial Relations
Retirement .
JUDICIAL TRENDS IN PERSONNEL MANAGEMENT
Approved For Release 2003/04/17 : CIA-RDP81-00314R000200110007-3
W. K. WILLIAMS AND COMPANY, R4C.
Consultants to Management
140 West 13th Street, New York, N.Y. 10011
[phone]
Salary and Classification
Organization Analysis and Planning
Education Administration
Management Information Systems
Data Processing Systems and Design
Work Flow and Work Measurement
Cost and Effectiveness Studies
 Approv
CONFIDENTIA7
/04/17: CIA-RDP81-0031ZR00020011000p 3)RSONNEL
without regard to any suggested procedural steps when he deems it necessary
or advisable in the interests of the United States.
d. CRITERIA
(1) WORK AND EFFICIENCY. An employee who fails to meet the work and
efficiency requirements of his Career Service or fails to adequately perform
the duties of the position to which he is assigned should be considered for
separation from that Career Service and possibly the Agency. If the
Deputy Director or Head of Career Service having jurisdiction concludes
that the individual should be separated from the particular Career Service,
he will forward the case with all pertinent documentation to the Director
of Personnel for further processing as set forth in subparagraph f below.
(2) THE FIRST-YEAR TRIAL PERIOD. Deputy Directors and Heads of Career
Services are responsible for identifying employees under their jurisdiction
who do not successfully complete the first-year trial period. The Deputy
Director or Head of Career Service, or his representative, will notify the
Director of Personnel before the close of the first-year trial period when
an employee has failed to meet the applicable employment standards.
(3) SECURITY AND MEDICAL STANDARDS. The Director of Security and
the Director of Medical Services will make appropriate recommendations
to the Director of Personnel when an employee does not meet Agency
security or medical standards.
r (4) STANDARDS OF CONDUCT. The Agency standards of employee conduct
are prescribed in HR Q Deputy Directors will ensure that appropriate
officials take or initiate corrective or disciplinary action as necessary or,
if warranted, forward a recommendation for separation to the Director
of Personnel if an employee fails to meet Agency standards of conduct.
Whenever the Director of Personnel is informed that an employee has
failed to meet Agency standards of conduct, he will, if the matter is of a
serious nature, review the case with the Deputy Director responsible for
the employee's organization of assignment and the Head of the employee's
Career Service, if different. He may, in coordination with the Deputy
Director concerned, conduct an investigation if this is required. If the
Director of Personnel concludes that the individual should be separated,
he will forward his recommendation with appropriate documentation
through the Deputy Director concerned with the employee's organization
of assignment and the Head of the employee's Career Service, and, if
appropriate, to the Director of Central Intelligence.
(5) SELECTION OUT. It is the policy of the Agency to improve the overall
level of employee performance by separating those employees whose quali-
fications and potential are low in comparison with those of other employees
of the same grade and occupational category. Heads of Career Services are
responsible for recommending the separation of personnel under their
4 jurisdiction.
(6) OTHER. In addition to (1) through (5) above, employees may be termi-
nated upon a finding by the Director of Central Intelligence that such
termination is necessary and advisable in the interest of the Agency or for
such other reasons as.the Director may find will advance the efficiency
of the Agency.
e. RESPONSIBILITIES
r' (1) HEADS OF CAREER SERVICES. Heads of Career Services are responsible
L. for identifying employees under their jurisdictions who should be con-
70 -+Revised: 13 June 1974 (820)
CONFIDENTIAL
25X1
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 Court Orders New Selection Out Pro, dures grounds. The Court's order
with selection out on
'f' aY ; car c3/~4/17 rIQ~RDP 1-0031402001100 his. grounds, or with office
Cole FSOs filed .! l e.ision. rofessiuna competence
a
l
f ,
ss action
aw- is not susceptible to such treatment.
suit last June attacking the Depart- Moreover, there is nothing in the
ment's standard of performance se- Foreign Service Act of 1946 or the
lection out policies and procedures. Constitution which prevents hudg-
Later, USIA's selection out policies
and prucctlures were brought into is- etary considerations from affecting
sue by two FSIO's who joined in the the particular selection out per-
law suit. ccntiles."
United States District Court Judge The Court also rejected a conten-
Gerhard A. Gesell ruled on December tion that the prescribed standards of
12 that the selection out procedures performance were null and void for
of the Department and USIA lacked failure of publication in the Federal
procedural clue process and were Register.
therefore deficient. The Department and USIA have
The Court was swayed by a recent accepted the District Court's decision
line of Supreme Court decisions
which have sharply extended the pro- which affects only officers presently
cedural rights of public employees on the rolls and subject to selection
facing dismissal for cause where the out on standard of performance
dismissal carries with it a stigma.
In order to cure the found dcficien-
ces in the present State-USIA selec-
tion out procedures, the Court or-
dered (1) that ail officer be provided
with full notice as to the basis for his
proposed selection out, including all
materials concerning hire that were
considered by the appropriate selec-
tion hoards, (2) that an officer he
afforded a hearing at which to pre-
sent evidence on his behalf' and to
confront adverse witnesses personally
or by affidavit, (3) that an officer be
permitted representation at such a
hearing by retained counsel at his
own expense. and (4) that an officer
seeking a hearing be returned to
Washington, D.C., at agency e::pcnse.
Judge Gesell opted not to prescribe
detailed methods for the conduct of
such hearings and concluded: "Ex-
perience will dictate methods for de-
veloping a fair hearing consistent
with these rights without turning the
process into an unduly formal adver-
sary trial. The Board (Special Review
Panel) may, of course, impose strict
rules of relevance and materiality and,
obviously, any fact that has been the
subject of a formal grievance hearing
need not be reheard."
Although the Court invalidated the
selection out procedures, it rejected
contentions that the standard of per-
formance criteria of the Department
and USIA were illegal. The Court
stated:
" . . the Court finds no ground for
plaintiffs' effort to require a greater
specificity of standards for deter-
mining who will he selected out.
These have already been adequate-
ly defined. The matter cannot be
reduced further to a mathematical
had been selected out in the p,
The Department shall as
ority matter correct the four
ciencies in its procedures ai
0111r,uIt with the American I
Service Association, the exclus
ployce representative, towar
end, officials said.
The Department is confide
the necessary reforms will, in
Gesell's words, ". . . in the lot
result in better informed judgm
particular cases. At the same tie
laudable and necessary procedi
weeding out marginal officers
interests of efficient and of
competitive foreign service aj
will be preserved as Congress
desired."
Officers Honored for Paperwork Managem,
Three Department officers were
presented a group award for dis-
tinguished accomplishment at the
Ninth Annual Federal Government
Paperwork Management Awards
luncheon sponsored by the Associa-
tion of Records Fxccutives and Ad-?
ministrators (AREA) at the Twin
Bridges Marriott Motor Hotel on
November 6.
Cited were Alex C. Adrian, Chief
of the Vocabulary Maintenance Staff,
Foreign Affairs Document and Ref-
erence Center, O/FAI)RC: William
F. Farrell, Jr., Acting Chief of the
Records arid Reports Management
Staff, O/FADRC: and Denis Lantb,
Chief of the User Support Sc
Staff, Information Systems
O/iSO.
The three were honored for
"distinguished work in the t
States Government excmplifyii
an outstanding manner the h
characteristics of public sc
through paperwork improvemen
simplification."
Mr. Adrian, Mr. Farrell and
Lamb jointly designed and it
merited certain key componen
the centralized Automated r
anent Storage an(; Retrieval S)
for the Department.
The new system has far-rea(
impact on paperwork in the Dc
ntent, their citation pointed out.
"Hard-copy records will be c
nated, storage space reduced,
equipment reduced, indexing
proved, retrieval expedited, and r
precise and improved reporting n
possible.
"This sytcrn is estimated to
$250.000 annually, While this re
sents but a portion of the in
investment, the expected aceu
fated savings combined with the 1
cfits of improved information I
dung and better service to the
Partmcnt and other agencies i,
cated that a sound investment
been made in developing a hiE
significant s
added olution," the rata:
.
John M. F'homas, Assistant Se,
Lary for Administration, represen
the Department at the ceremony. "
speaker at the awards luncheon i
Ambassador William Lconhart.
DEPARTMENT OF STATE NEWSLEJ
J19rv' -7 r
 INVd~` Ru 1o& R ' a 03/04/17 :CIA-RDP> 1-0 314 00200110007-3
2) An o jeer now to c ass 3 may re-
731 Authority
Regulations relating to involuntary retire -
ment of Foreign Service officers and to
benefits such officers shall receive are pre-
scribed under authority of sections 633
through 635 of the Foreign Service Act of
1946, as amended.
732 Kinds of Involuntary Retirement
732.1 Mandatory Retirement for Age
(See sections 672. 2-3 and 672. 2-6c. )
732. 2 Retirement Through Maximum
Time-in-Class
Any Foreign Service officer below the class
of career minister who does not receive a
promotion to a higher class within the period
specified for the officer's class shall be
involuntarily retired from the Service under
the provisions of section 633 of the Foreign
Service Act of 1946, as amended, and receive
benefits in accordance with section 733, ex-
cept as provided in section 734.
a. Foreign Service Officers of Classes
1 and 2
A Foreign Service officer of, class 1 or 2
shall be involuntarily retired from the
Service and receive benefits in accordance
with section 733 of these regulations if the
officer has remained in class 1 for 12 years
or in class 2 for 10 years without promotion
to a higher class.
Foreign Service Officers of Class 3.
4, and 5
Foreign Service officers of classes 3, 4,
and 5 shall be involuntarily retired from the
Service for maximum time-in-class under
the criteria stated in subparagraph (1), (2),
and (3) of this. section and shall receive
benefits in accordance with section 733.
(1) Except as provided in subparagraphs
(2) and (3), the total cumulative maximum
time that an officer now on active duty may
remain in any combination of classes 5, 4,
and 3 shall be 20 years, and, within this
period, the maximum time that such an
officer may remain in any one of these
three classes shall be 15 years.
main in class until the expiration of the
previous maximum time-in-class limit of
10 years for class 3, if that is more advan-
tageous for the officer than the cumulative
time specified in subparagraph (1).
(3) An officer in class 5 or 4 who has
not attained eligibility to apply for voluntary
retirement upon the expiration of the maxi-
mum time-in-class applicable to the officer's
class under subparagraph (1) will not be
separated because such time has expired
until the officer attains eligibility to apply
for voluntary retirement.
c. Foreign Service Officers of Classes
6 and 7
Foreign Service officers of classes 6 and 7
(nonprobationary) shall be involuntarily
retired from the Service for may: hum
time-in-class under the criteria .dated in
subparagraphs (1), (2), (3), (4), ai.d (5) of
this section and shall receive benefits in
accordance with section 733.
(1) A Foreign Service officer of class
6 who was appointed to that class by "lateral
entry" must be nominated by the Department
for promotion to class 5 within 5 years from
the date of appointment to class 6. Other-
wise, the officer shall be involuntarily
retired within 6 months of the official noti-
fication of the officer's failure to achieve
promotion.
(2) A Foreign Service officer of class
6 who was initially appointed to class 7
must be nominated by the Department for
promotion to class 5 with n 5 years from
the date of appointment to class '7. Other-
wise, the officer shall be involuntarily
retired within 6 months of the official
notification of the officer's failure to achieve
promotion to class 5.
(3) A Foreign Service officer of class
6 who was initially appointed to class 8 must
be nominated by the Department for promo-
tion to class 5 within 7-1/2 years from the
date of appointment to class 8. Otherwise,
the officer shall be involuntarily retired
within 6 months of the official notification
of the officer's failure to achieve promotion
to class 5.
TL:I'ER-370 PERSONNEL ~T (( 3 FAM 730
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 Approved FoLRelease 2003/04/17
(4) A Foreign Service officer of class
7 who was initially appointed to class 8 must
be nominated by the Department for pro-
motion to class 6 within 5 years from the
date of appointment to class 8. Otherwise,
the officer shall be involuntarily retired
within 6 months of the official notification
of the officer's failure to achieve promotion
to class 6.
(5) A Foreign Service officer of class
7 who was appointed to that class by "lateral
entry" must be nominated by the Department
for promotion to class 6 within 4 years from
the date of appointment to class 7. Other-
wise, the officer shall be involuntarily re-
tired within 6 months of the official notifica-
tion of the officer's failure to achieve
promotion to class 6.
(6) Officers who were in classes 6 and
7 before June 1971 will be subject to the pre-
vious maximum time in-class of 4 years.
Such officers in classes 6 and 7 whose date of
promotion by the Probationary Officer Selec-
tion Board was within 6 months of the conven-
ing of the annual Selection Boards will, if
faced by maximum time-in-class, be extended
to permit review by one additional Selection
Board. Should such an officer not achieve
promotion as a result of the recommendations
of this additional Board, the officer will be
involuntarily retired within 6 months of the
official notification of failure to achieve pro-
motion.
d. Probationary Foreign Service Officers
of Classes -7 and 8
e. Commutation of rirrje-in- Class
(1) Computation Date and Excepted
Periods of Service
The period of service in class is computed
from the effective date of appointment to
the class and includes any minimum period
of service in a class that may be required
for promotion eligibility and all other
periods of service, except:
(a) Periods of leave without pay
in excess of 3 months;
(b) Periods of military furlough;
CIA-RDP81-0031"000200110007-3
(c) Periods for which a Selection
Board nonrated an officer on grounds of
insufficient performance data; or
(d) Periods for which the Director
General or Deputy Director General deter-
mines that an officer should be nonrated on
the grounds of insufficient, incomplete, or
inaccurate performance data.
(2) Notification to Nonrated Officers
In all such cases in which an officer is
nonrated, the Director General or Deputy
Director General notifies each officer in
writing of the additional period in class
to be granted.
(3) Restoration to Duty
An officer separated from the Service who
is subsequently restored to duty retro-
actively to the date of separation does not
have such period of separation included in
the computation of time- in- class.
(4) Extension of Termination Date
If an officer reaches maximum time-in-
class while serving in a position to which
appointment was made by the President,
the officer's retirement from the Service
'becomes effective upon completion of
service in a position requiring Presidential
appointment.
732. 3 Retirement Through Failure
to Meet Require d Standard of
Performance __
Any Foreign Service officer below the
class of career minister who fails to meet
the standard of performance required for
the officer's class is involuntarily retired
from the Service under the provisions of
section 633 of the Foreign Service Act of
1946, as amended, and receives benefits
in accordance with section 733, except as
provided in section 734.
a. Findin sof Selection Boards
(1) Each Selection Board shall deter-
mine the standing of officers in relation to
others in their class in accordance with
the Precepts approved by the Deputy Under
Secretary for Management, by and with
the advice of the Board of the Foreign
Service. *
0
3 (3FAM 7 siol Approved For Release 206i/v4/W: bIA-RDP81-00314R000200110G7i-3 R-320
1-24-72
 Approved For,$elease 2003/04/17 : CIA-RDP81-0031b00200110007-3
C Any Foreign Service officer in classes I
through 7 (nonprobationa-ry) shall be pre-
sumed not to have maintained the perform-
ance standard required for the officer's
class when the officer has been ranked by
one or more Selection Boards while in the
sat-tie class in such low percentiles or other
substandard performance group as are
annually determined to constitute the criteria
for involuntary retirement for the officer's
class. The cases of Foreign Service officers
thus identified will be considered for involun-
tary retirement in accordance with the
provisions of section 732. 3b.
Each Selection Board shall document its
findings as required in the Precepts. The
panel referred to in section 732. b(1), upon
making a finding that an officer's perform-
ance fails to meet the standard required
for the officer's class and that the officer's
record warrants involuntary separation,
shall in each instance prepare a specific
statement in writing; setting forth the
basis for the finding.
733 Retirement Benefits
(2) The Board shall also designate,
in accordance with the instructions in the
Precepts, any officer who, in the opinion of
the Board, should be denied the next step-
increase in salary because the officer's
services fail tr meet the standard required
for efficient conduct of the work of the
Service.
b. Review of Findings of Selection Boards
(1) The record of each officer who is
to be considered for involuntary retirement
in accordance with the provisions of sections
732.3 and 732. 3a(1) shall be reviewed by a
Special Review Panel, which will determine
those officers whose performance fails to
meet the standard required of officers of
their classes and whose records do not
warrant their retention. The Special Review
Panel will make positive recommendations
to the Secretary of State that those officers
so identified be involuntarily retired from
the Service under the provisions of section
633 of the Foreign Service Act of 1946, as
amended. The Secretary or the Secretary's
designee will then make the final decision
as to those officers who are to be separated.
(2) The records of those officers whom
the Sel.ection Boards have recommended
should be denied the next step-increase in
salary because their services fail to meet
the standard required for efficient conduct
of the work of the Service will. be referred
to the Director General of the Foreign
Service, together with the findings and re-
commendations of the Selection Boards.
The Director General will determine whether
a step-increase shall be denied.
In accordance with the provisions of section
634 of the Foreign Service Act of 1946, as
amended, Foreign Service officers who are
involuntarily retired from the Service under
the provisions of sections 732. 2 or 732. 3
shall receive benefits as follows:
a. A Foreign Service officer of class 1,
2, or 3 who is involuntarily retired under
the provisions of sections 732. 1, 732. 2,
or 732. 3 shall receive retirement benefits
in accordance with section 673.
b. A Foreign Service officer of class 4,
5, 6, or 7 (nonprobationary) who is in-
voluntarily retired under the provisions of
section 732. 2b, 732. 2c, or 732. 3 shall
receive benefits as follows.
(1) One-twelfl.h of a year's salary at
the officer's then current salary rate for
each year of service and proportionately
for a fraction of a year, but not exceeding
a total of one year's salary at the officer's
then current salary rate, payable without
interest, from the Foreign Service Retire-
ment and Disability Fund, in three equal
installments on the first day of January
following the officer's separation and on
the two anniversaries of this date imme-
diately following: provided, that in special
cases, the Director General of the Foreign
Service or the Deputy Director General may
approve the acceleration or combining of the
installments; and
TL: PER-320 Approved For Release 20@WM7NUA-RDP81-00314R000200110007 M 733
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 Approved For$elease 2003/04/17 : CIA-RDP81-0031?000200110007-3
* (2) A refund of the contributions made
to the Foreign Service Retirement and Disa-
bility Fund, with interest as provided in
section 671. 3-4, except that in lieu of such
refund., if the officer has at least 5 years of
service credit toward retirement under the
Foreign Service Retirement and Disability
System, excluding military or naval service
that is credited in accordance with the pro-
visions of section 851 or 852(a) of the Foreign
Service Act of 1946, as amended, that officer
may elect to receive retirement benefits on
reaching the age of 60, in accordance with
the provisions of section 673.
In the event that an officer who is involun-
tarily retired from class 4 or 5 and who
has elected to receive retirement benefits
dies before reaching the age of 60, the
officer's death shall be considered a death
in service within the meaning of section
673. 3.
In the event that n officer who was involun-
tarily retired from class 6 or 7 and who has
elected to receive retirement benefits dies
before i caching the age of 60, the total
amount of the officer's contributions made
to the Foreign Service Retirement and Disa-
bility Fund, with interest as provided in
section 671. 3-4, shall be paid upon establish-
ment of a valid claim therefor, in the order
of precedence set forth in section 671. 3-6.
(3) A Foreign Service officer of class 4,
5, 6, or 7 who is involuntarily retired shall
have the right to assign to any person or
corporation the whole or any part of the
benefits receivable by the officer pursuant
to subparagraph (1) of this section. Any
such assignment shall be made on Form
DS-977, Assignment of Retirement Benefits,
which will be provided by the Department
on reque st of an individual officer.
(4) A Foreign Service officer in class
4, 5, 6, or 7 who is scheduled for involun-
tary retirement and who is being retained
on the Department's rolls may be offered
employment in the Foreign Service Reserve,
Foreign Service Staff, or Civil Service
categories only if the officer resigns as a
Foreign Service officer. The severance
benefits described in subparagraph (1) of
this section, do not apply in these circum-
stances. Such an officer, however, is en-
titled to the benefits provided under section
672. 1-5, unless the officer remains as a
participant in the Foreign Service Retirement
and Disability System by virtue of appointment
as a Foreign Service Staff officer.
(5) Notwithstanding the provisions of
section 733, any officer of class 4, 5, 6,
or 7 who is eligible for voluntary retire-
ment may be granted such retirement in
lieu of involuntary retirement.
734 Probationary Foreig Service
Officers of Classes 7 and 8
Under the provisions of section 635 of the
Foreign Service Act of 1946, as amended,
any Foreign Service officer of class 7 who
is appointed under the provisions of section
516(b) of the Foreign Service Act of 1946,
as amended, and any Foreign Service officer
of class 8 shall occupy probationary status.
The services of such officers may be termi-
nated at anytime.
Any probationary Foreign Service officer
of class 7 or 8 who has remained in class
for 4 years without promotion to a higher
class shall be separated from the Service
within 4 months after completion of the
fourth year of service in class, except as
provided in section 736. 2.
Foreign Service officers separated from
classes 7 or 8 under the above provisions
shall have their contributions to the Foreign
Service Retirement and Disability Fund re-
turned in accordance with section 671. 3-4.*
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736 Effective Date of Separation
736. 1 Determining Effective Date
In cases of involuntary retirement from the
Service in accordance with the provisions
of section 732. 2, the Director General of
the Foreign Service or the Deputy Director
General shall set the effective date of
separation which, except as provided in
sections 732. 2b, and 736. 2, shall be within
the following time limits:
of section 732. 2, within 6 months after the
anniversary date of entry into the class, or
within such other period as specified in
section 732. 2;
b. For officers retired under the provi-
sions of section 732. 3, within 6 months
after the date of notification of involuntary
retirement by the panel referred to in
section 732. 3b(l); and
c. For officers separated under the provi-
sions of section 734, within the 4-month
period specified.
736.2 Postponement of Effective Date
Notwithstanding the time limits contained
in section 736. 1, paragraphs a and b, the
Director General of the Foreign Service or
the Deputy Director General may postpone
the effective date of separation, upon deter-
mination that such action is in the interest
of the Service. The record of any officer
whose effective date of separation is post-
poned shall not be reviewed by Selection
Boards which convene during the interven-
ing period, nor shall such an officer receive
a within-class salary increase during this
period.
736.3 Notice of Separation
The Director General of the Foreign Service
or the Deputy Director General shall issue
a written notice of the effective date of sepa-
ration to each officer involuntarily retired.
The notice shall be issued at least 30 days
before the effective date of separation.
737 through 739 (Unassigned) 3c
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