.

If someone asked you to name your constitutional rights, how many could you name? "Do you happen to know what the First Amendment to the U.S. Constitution is, or what it deals with? If you don't know or are incorrect about the First Amendment, you join the other 76% of Americans based based on a recent Gallup Poll.

Sanitarians should be particularly cognizant of their rights because their work and employment places them directly at the government/public interface. The sanitarian has employment obligations to the government, duties to the public, dedication and service to the profession, and responsibilities to himself and family. At some point in a sanitarian's career, it is very likely that two or more of these functions will conflict. A choice will have to be made by the sanitarian.

The purpose of this article is to briefly explore the sanitarians' constitutional rights in relationship to the government employer. The motive for exploration is the belief that the knowledge of one's constitutional rights is fundamental to having a full, productive and respected relationship with the government.
 

A.    Freedom of Speech, Assembly and Petition

"Congress shall make no law ... abridging the freedom of speech ...; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances." (First Amendment, U.S. Constitution)

The First Amendment is a guaranteed protection of personal rights from interference by federal, state or local government. It includes free speech, and freedom of association and political activity.

The freedom of speech means the power to express opinion and beliefs without restraints and subsequent punishments, and the right to receive ideas. The freedom, though, cannot be unlimited in this or any other society. Defamation liability is one limitation. If defamation occurs there may be subsequent punishment through payment for damages, but except for highly unusual circumstances, there can be no prior restraint or censorship.

Another limitation of free speech is the need of government for public service efficiency. The government seeks productive and efficient service from its employees and may protect itself from disruptive employees. Therefore, sanitarians have a right to comment on matters of public interest if the employer/employee relationship is not implicated. However, a sanitarian might be lawfully discharged if the comments impede the department in fulfilling its goals or adversely affects the relationships at work. See Pickering v Board of Education, 391 U.S. 563 (1968); Perry v Sindermann, 408 U.S. 593 (1971).

Private expressions to the supervisor, director, commissioners or board by a sanitarian are also protected speech. In Givhan v Western Line Consolidated School District, 99 S.Ct. 693 (1979), a public school teacher was not rehired for, among other things, criticizing to the school principal the school district's employment practices and policies. The court stated private comments were protected speech along with the previously public comments. However, the court also said that if the employee can show that his constitutionally protected conduct had a "substantial" role in the employer's decision not to rehire him, he will be reinstated unless the employer can prove that it would have dismissed the employee even in the absence of the protected conduct. Mt Healthy City Board of Education v Doyle, 429 U.S. 274, 287 (1977).

Before leaving the topic of free speech, I want to reemphasize the importance of this right but also want to caution you that this is a developing and evolving area of constitutional law. Further, even though your right is recognized, your degree of protection is uncertain. Your right to speak freely is certain but you have no absolute assurance of protection from retaliation because your right is balanced against the government's need for efficiency. This means each situation is subject to individual scrutiny with only general principles guiding the courts' decision. The Supreme Court explicitly stated: "Because of the enormous variety of fact situations in which critical statements by ... public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged." Pickering v. Board of Educ., 391 U.S. 563, 569 (1967). Also the Supreme Court has indicated that private discussions with your superiors are more susceptible to legitimate actions against you since these discussions are more likely to affect the working relationship with your superior or co-workers.

Freedom of association and political activity are also guaranteed by the First Amendment. Public employees may form professional associations and hold meetings. They may petition for redress of grievances. However, here too the government has a legitimate interest in the effective and efficient operation of its programs and civil service system. The state may restrict partisan political activities of its employees similar to the federal government in its Hatch Act, Broadrick v. Oklahoma, 413 U.S. 601 (1973). Yet the state and local government cannot discharge a public employee solely on his political beliefs if his political affiliation plays no role in the effective performance of his job; Branti v. Finkel, 48 U.S.L.W. 4331 (1980), Elrod v. Burns, 427 U.S. 347, 350 (1976). This means that if you are a sanitarian and a Republican, you cannot be dismissed merely because the health director, mayor or board of health are Democrats, unless you are involved with policy formation and you political party affiliation is important to the policy process.
 

B.    Privilege Against Self-Incrimination

"No person ... shall be compelled in any criminal case to be a witness against himself ..."  (Fifth Amendment, U.S. Constitution)

This constitutional right seldom is used by most public employees. However, where the sanitarian is faced with the choice of answering statements which may incriminate him or lose him his job, this right may be invaluable.

There is an important limitation to this privilege. The government has a right to inquire of its employees on items affecting the employment relationship and the fulfillment of the employee's duties. Even though the government cannot compel by a threat of discharge a public employee to waive this constitutional right, the employer has a right to know how the employees are performing their duties. The resolution of this impasse can involve immunity from prosecution. However, if a sanitarian is ever faced with the choice of making incriminating statements in response to an investigation or exercising his Fifth Amendment rights, he should consult an attorney.

 
C.    Right to Privacy

"The right to the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated ..."  (Fourth Amendment, U.S. Constitution)

As with other constitutional rights, the Fourth Amendment is not neutralized merely by acceptance of public employment. This right of privacy for public employees has not been fully developed in the courts, yet. In one of the few reported cases on the subject, an IRS agent was dismissed for refusal to submit his records for tax audit, was reinstated. Sherar v. Cullen, 481 F.2d. 945 (9th Cir. 1973). The court, in effect, said if the IRS wanted the records for the audit, then it could apply for a subpoena as it would for any other taxpayer.

 
D.    Right to Due Process

"No person shall be ... deprived of life, liberty, or property, without due process of law ..."  (Fifth Amendment, U.S. Constitution)

"Nor shall any state deprive any person of life, liberty, or property without due process of law ..."   (Fourteenth Amendment, U.S. Constitution)

These two amendments guarantee you due process of law by federal, state and local government whenever your life, liberty or property is being threatened. This is a fundamental right which significantly separates you as a public employee from your private counterparts. Due process is intimately involved with your work because your employer is the government who must afford the due process; private employer generally don't. Moreover, due process provides provides only minimal constitutional rights which cannot be undermined,but greater protection may be acquired through contracts, civil service procedures, or other regulations.

Due process only applies where life, liberty or property are involved. Since being a sanitarian usually doesn't assume life and death consequences, the important values are liberty and property. If you can only be discharged for cause you may have a property right in continued employment with your agency. "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must instead, have a legitimate claim of entitlement to it." The Supreme Court has held that a public employee serving under his first one year contract had no right to notice of hearing when his employer decided not to renew his contract. On the other hand, a public employee serving his 11th one-year contract was entitled to notice and hearing because he showed that existing rules and understandings give rise to an informal tenure system. "A person's interest in a benefit is a 'Property' interest for due process purposes if there are such rules or mutually explicit understandings that support his claim of entitlement to the benefit and that he may invoke at a hearing."

The "rules or mutually explicit understandings" may be formal or informal; statutory, regulatory, or contractual. Formal systems requiring discharge only for cause certainly gives employees a "claim of entitlement to the benefit" and, therefore, due process rights. Not every public employee has such rights though, such as probationary personnel or those serving entirely at the pleasure of the board.

Liberty is also protected by due process. Liberty in public employment applies to both tenured and probationary employees. It means that the employer cannot "stigmatize" an employee in the discharge without affording due process. "Where 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 (1971).

The liberty concept as applied to public employment is still relatively undefined. We do know that the mere fact that a person discharged from one job may not be as attractive to another employer is insufficient for involvement of liberty. Board of Regents v. Roth, 408 U.S. 564 (1972). Also, unless there is some publicity of the stigma, the good name and reputation of the employee are not at issue. So where a public employee is discharged but the stigmatizing reasons were stated orally and never made a part of the official personnel file, due process did not apply. Bishop v. Wood, 426 U.S. 341 (176). See Owen v. City of Independence, 48 U.S.L.W. 4389 (1980) and Gomez v. Toledo, 48 U.S.L.W. 4600 (1980).

Once it is determined due process applies, the question becomes what protections does it give the public employee. Basically the due process requirements are: notice to the employee of the reasons for the termination, an open hearing on the matter, opportunity to be represented by counsel and to cross-examine witnesses, and possible court review to determine whether a fair process was followed and whether the termination decision was for just cause if a property right was implicated.

Due process gives you a guarantee that minimum fair procedures are used in an action against you. However, it does not assure you continuation of or reinstatement to your job. Indeed the core of the right, a hearing, need not even be held before discharge. The government can legitimately terminate employment and then hold the require hearing. Yet you cannot be treated arbitrarily and everything will open up to you, and possibly, public scrutiny.

 
Conclusion

This was a very brief discussion of YOUR rights under the U.S. Constitution. There are other rights you have through federal statutes, and the Ohio constitution and acts. You must take the time to find out more about your rights.

The exercise of your rights is your private decision, but no one can make a rational decision about their actions without knowing their rights, protections, responsibilities and liabilities. The more you know about your rights, the better chance you will use your rights responsibly and appropriately. Our consultant from whom we should seek advice and information concerning our constitutional rights is our attorney. Private attorneys, city and county attorneys, and prosecutors may be able to help you/ Only they can do it because the law on public employees' constitutional rights has changed and is expected to continue to evolve rapidly. As good citizens, public servants, and advocates of true environmental health, sanitarians should know as much about their rights as they do about environmental health science.

___________________________

* SOURCE: Sikora, Vincent A., Ohio Journal of Environmental Health. June 11, 1980. "