Immunity for Public Administrators

In order for public administrators to understand their personal and professional liability when performing the functions of their job, they must also understand when they have immunity from lawsuits. Liability in this context means the courts will not allow groups or individuals to bring lawsuits against public administrators who were performing the responsibilities associated with their position. The following analysis examines three important Supreme Court cases: Nixon v. Fitzgerald, Clinton v. Jones, and Harlow v. Fitzgerald. Each illustrates how the Court works to shapes institutional dynamics of the administrative state. In Nixon v. Fitzgerald, the Court maintained that the president of the United States has absolute immunity from lawsuits for all official actions that occurred during his administration. In Clinton v. Jones, however, the Court held that the US president does not have immunity for unofficial conduct or for conduct that occurred in an unofficial capacity. Finally, the Court ruled in Harlow v. Fitzgerald that constitutional competence was an essential job requirement for public administrators.

In the 1982 term, the Supreme Court provided important guidance for the field of public administration regarding when public managers have immunity from lawsuits. In Nixon v. Fitzgerald, it held that the president, when acting in his official capacity as leader of the executive branch, has absolute immunity from liability damages. Absolute immunity also extends to legislators when they are acting in their official capacity as elected officials, judges when they are acting in their official judicial capacity, prosecutors when they are acting in their official prosecutorial capacity, and executive branch officers engaged in adjudicative functions.

In the 1997 case, Clinton v. Jones, the Court addressed the limitations of absolute immunity for the president. Justice Stevens, writing for the unanimous Court, held that the president does not have absolute immunity, or any other type of immunity, for unofficial conduct or for conduct that extends beyond the scope of any action taken in an unofficial capacity. The Court also held that the Constitution does not automatically grant the president immunity from civil lawsuits based on his private conduct or afford him temporary immunity from those lawsuits until after he has left office. The Supreme Court in this case was making a powerful statement: no one, not even the president, is immune from following the rule of law.

Harlow v. Fitzgerald is one of the most important cases that US public managers need to understand in order to protect themselves from lawsuits. Here, the Court established that constitutional competence for public managers was a job requirement for public managers at all levels of government (Rosenbloom et al., 2004). In this case, the Court held that when public administrators are performing discretionary functions associated with their job, they are generally shielded from liability for civil damages. However, the Court was explicitly clear that a civil servant will lose qualified immunity if he or she knows that his or her official action violates an individual's constitutional rights for which a reasonable person would have known, or if he or she acted with malicious intent to cause a deprivation of constitutional rights or other injuries. If a reviewing court finds that a public administrator knowingly violated a citizen's legally protected rights, then the administrator in question becomes personally and professionally liable for the damages he or she has inflicted. In a word, this means that every personal asset a public manager has—savings, property, retirement accounts—can serve as compensation for the individual whose rights the public manager violated.

The US Congress has also addressed the importance of immunity for public administrators working at the state and local levels of government. Title 42 of the US Code, section 1983, maintains that if a civil servant at the state or local level violates a citizen's constitutional or individual rights, he or she can be held personally and professional liable for damages (Newbold, 2011; Rosenbloom et al., 2010).

In this regard, both the Supreme Court and Congress have spoken clearly and unambiguously regarding their constitutional expectations for US public administrators. In doing so, the Court is working to shape the American administrative state in its own image by placing the Constitution front and center in public sector organizations. The Court is willing to provide public administrators with qualified immunity for decisions made in an official capacity as long as they respect how the rule of law protects the rights of citizens.

Maintaining Substantive and Procedural Due Process Rights in Public Administration

Due process is a central tenet of US constitutional law, and conserving this important protection is critical for understanding public administrators' liability. The Fifth Amendment to the US Constitution states that the federal government cannot deprive an individual of life, liberty, or property without due process of law. The Fourteenth Amendment, ratified after the Civil War, maintains that the individual states cannot deprive an individual of life, liberty, or property without due process of law. Based on these two key principles of constitutional law, the more nuanced concepts of procedural due process and substantive due process have become important legal standards in helping public administrators understand their liability.¹

Procedural due process “permits the government to take action that may have grave consequences for a person or group as long as it follows fair procedures” (Cooper, 2007, p. 195). This is the due process associated with administrative adjudications and emphasizes the importance of fundamental fairness in cases affecting life, liberty, and property as well as ensuring that public administrators follow the law correctly. By means of contrast, substantive due process “prevents the government from taking some actions against an individual regardless of the procedural protections provided” (Cooper, 2007, p. 195). Scholars and practitioners often regard this type of due process as “the rights implicit in ordered liberty” (Cooper, 2007). Modern examples of substantive due process include the right to privacy, the right to contraception and other choices about reproductive health, the right to an abortion, and the right of homosexuals to participate in private sexual activity.

Understanding the differences between procedural and substantive due process is important. These practical distinctions help public administrators recognize the different types of due process procedures they might need to provide citizens in specific types of situations. This is especially true, for example, when public managers working at the street level are determining a citizen's welfare eligibility or what type of disability services an individual might be eligible to receive. Public administrators who are in charge of determining the allocation of public benefits relating to social services need to be particularly cognizant of ensuring due process protections. Over the past five decades, the Supreme Court has explained the liability public managers face if they violate citizens' due process rights when making determinations regarding the approval or denial of state and federal benefits. The cases outlined next provide a framework to guide public administrators in understanding how to maintain constitutional competence, protect the rights of citizens, and decrease their personal and professional liability.

Free Speech Liability for Public Administrators

One of the most revered provisions commonly associated with democratic governance is the freedom of speech. The First Amendment maintains that Congress shall make no law abridging this freedom. As the administrative state has expanded, however, one of the challenges facing public administrators at all levels of government is what type of speech the Constitution protects when civil servants choose to speak out on public issues. The Supreme Court has offered important instructions to public managers regarding how to balance the free constitutional speech of public employees with the need to protect the efficient and responsible management of public agencies. The case law in this area provides important lessons for public administrators regarding their liability when attempting to regulate the public and private speech of civil servants.

In 1987, the Court examined the constitutionality of the termination of a public employee, Ardith McPherson, who was working on probationary status for the Office of the Constable in Harris County, Texas. After the attempted assassination of President Ronald Reagan, McPherson, who was eating lunch with her boyfriend in the office's courtyard area, commented, “If they go for him again, I hope they get him.” A deputy constable overheard McPherson's comments, and the agency fired her immediately. Writing for the Court's majority in Rankin v. McPherson (1987), Justice Thurgood Marshall held that McPherson's speech was constitutionally protected under the First Amendment because it was a matter of public interest.

According to Justice Marshall, public agencies have an important balancing act when deciding how to regulate the speech of their employees. In this case, the Court balanced McPherson's interests as a citizen when commenting on a public issue and the employer's interest in maintaining an efficient work environment. Justice Marshall used this opportunity to instruct public managers on the importance of protecting the public speech of civil servants: “Vigilance is necessary to ensure that public employees do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees' speech” (sec. II, p. 3). McPherson prevailed in this case for three key reasons: the constable's office could not provide a compelling state interest for why it fired her, McPherson's comments did not disrupt the functioning of the office, and the Court held that McPherson's punishment was too severe as her professional duties were primarily clerical.

One of the most notable cases that addressed the liability public agencies have when they choose to terminate a public employee for speech managers determine harms the institutional credibility of the organization was Pickering v. Board of Education (1968). Marvin Pickering, a public high school teacher, wrote a letter to a local Illinois newspaper critiquing the school board's decision to use taxpayer dollars to fund and expand the athletic programs at the expense of funding improvements to the academic curriculum. When the letter was published, the school board fired Pickering immediately, claiming his these public assertions were detrimental to the mission, goals, and operations of the school system.

Justice Marshall, writing for the majority, held that the school board's decision to terminate Pickering's job for his public speech violated the First Amendment. Marshall also created what became known as the Pickering balancing test, which requires public agencies to balance the individual speech of their employees with the potential harm such speech instills on the organization (Lee & Rosenbloom, 2005; Rohr, 2002). Here, the Court chose to balance Pickering's right to free speech against the school board's official interests to advance its decision-making authority. In a word, Marshall was instructing leaders and managers of public organizations to balance the free speech interests of the employee with the public speech interests of the citizen (Lee & Rosenbloom, 2005; Rohr, 2002; Rosenbloom et al., 2010). Pickering created a powerful precedent for understanding a public administrator's liability in the modern administrative state: if a public employee's speech is of public interest, the Constitution protects that speech under the First Amendment.

Garcetti v. Ceballus (2006), however, added constitutional constraints to the thirty-eight-year-old Pickering precedent and provided further parameters for understanding governmental liability in public sector organizations. Here, the Court once again examined how the First Amendment protects the free speech rights of public employees (Roberts, 2006; Rosenbloom et al., 2010). Richard Ceballos, a deputy district attorney for the Los Angeles County District Attorney's Office, argued that his supervisor, Gil Garcetti, retaliated against him for writing an internal memorandum citing disagreements and misrepresentations between what a sheriff found during a formal search and the information the sheriff provided during his affidavit. Based on these inaccuracies, Ceballos argued that the district attorney's office should dismiss the case before it went to trial.

Ceballus claimed that his professional opinion in this case not only caused Garcetti to retaliate against him on a regular basis, but also provided Garcetti an opportunity to deny his pending promotion in the district attorney's office. Justice Anthony Kennedy, writing for the Court's majority, held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their written communications from employer discipline” (sec. III, p. 9). As Roberts (1997) correctly points out, the Garcetti decision empowers public administration supervisors and employers with much greater latitude in terms of how they regulate the internal affairs of their agencies without being overwhelmingly concerned that their decisions will generate a First Amendment lawsuit.

Preserving Equal Protection under the Law without Increasing Liability

The Constitution's equal protection clause, which is part of the Fourteenth Amendment, provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. From the civil rights movement to the present, one of the most scrutinized and difficult areas to manage is how public organizations use race and affirmative action programs to create a more racially balanced and equitable society at large.

When the government employs race as a factor in determining eligibility criterion for public goods and services or as a means to implement a specific public policy agenda, the federal courts apply strict scrutiny, the most exacting level of judicial review. Grounded in the equal protection clause, the federal courts use strict scrutiny when the government seeks to restrict rights based on race and ethnicity, which are suspect classifications, or when the government seeks to limit an individual's fundamental rights, which include the freedoms of speech and press. Policies created to differentiate individuals according to their race or ethnicity or those designed to restrict fundamental rights are constitutional only when the government can demonstrate that they are narrowly tailored to promote a compelling state interest by the least restrictive means possible. In these types of cases, the reviewing courts require a heavy burden of proof from the government. Leaders of public agencies have long been made aware that in cases involving suspect classifications and fundamental rights, it is not enough to demonstrate mere reasonableness. The Supreme Court has been overwhelmingly clear that if public organizations or public managers equate a numerical value to any race, they are in violation of the equal protection clause of the Fourteenth Amendment. Developing a comprehensive understanding as to how and why the Court applies this judicial reasoning is especially important for helping to shield public servants from liability damages.

Over the past four decades, the Court has been especially active in reviewing cases in which public sector organizations have used race in various public policy initiatives to help advance principles associated with democratic governance, especially equality and representativeness. In Regents of the University of California v. Bakke (1978), the Court held that quotas based on race were unconstitutional. Justice Lewis Powell, writing for the majority, maintained that public institutions of higher education were not constitutionally prohibited from using the category of race to promote a diverse student body, but arbitrary and capricious values placed on individuals who constitute a specific race was unconstitutional. In a word, the Court ruled that race could be a factor but not the factor for public organizations attempting to establish greater racial diversity within their programs.

Three decades later, the Court once again scrutinized how public institutions of higher education used race to create a more diverse student body. In Grutter v. Bollinger (2003), the Court examined the University of Michigan's Law School admissions policies. Here, the law school afforded notable weight to prospective candidates African American, Hispanic, or Native American ethnicity. The university argued that these groups advanced its efforts to increase diversity. The Court was heavily influenced by Michigan's emphasis on building a “critical mass” of minority students within its overall student environment. Justice O'Connor, writing for the Court's majority, supported Michigan's efforts to achieve diversity from a holistic, highly individualized admissions process.

Applying the Bakke precedent for how race can be one of many factors in the admissions process, the admissions counselors at Michigan examined and considered all types of diversity, including gender, disability status, whether the applicant was the first generation in his or her family to attend college, experiential and cultural learning opportunities, foreign languages spoken, financial status, undergraduate record, LSAT scores, and letters of recommendation. Then the evaluators compared that candidate to the entire pool of applicants seeking admission. The university demonstrated that it applied great flexibility to the admissions selection process to ensure that the law school considered all types of diversity.

Justice O'Connor agreed with Michigan's argument on three key points. First, the institutionalization of establishing a critical mass was central to the law school's mission to help future lawyers understand people of different races better. Second, the law school wanted to create more effective ways to help ensure that public institutions were more accessible to every member of society, regardless of race. Finally, the university wanted to create an environment where the paths to society's leadership positions were more open and available to talented and qualified individuals of all races and ethnicities. The Court's majority agreed and ruled in favor of its holistic admissions policy and further substantiated the constitutional argument that race is but one factor that constitutes diversity.

Whereas the Supreme Court ruled in favor of the University of Michigan's Law School's holistic approach to creating a diverse student body, it ruled that the undergraduate admissions approach adopted by the university's College of Literature, Arts, and Sciences undermined the equal protection clause. In Gratz v. Bollinger (2003), admissions counselors automatically awarded prospective students twenty points, one-fifth of the total points needed to guarantee admission into the college, to each underrepresented minority solely because of race. The Court maintained that since the college did not apply a holistic or individualized review of each applicant, the university undermined the equal protection clause of the Constitution. While university officials argued that they created their selection criterion for administrative and procedural convenience, the Court rejected this approach.

In response to the Court's rulings in Grutter and Gratz, the state of Michigan sought greater input from citizens regarding how it should use affirmative action efforts within the public sector. In the November 2006 election, a majority of Michigan voters supported a proposition to amend the state's constitution to prohibit public colleges and universities, public employers, and public contractors from using sex- and race-based preferences in admissions and employment decisions. The result of this ballot initiative meant that it was unconstitutional in the state for public colleges and universities to consider an applicant's sex or race in their admissions decisions.

In a highly contested and publicized case, Schuette v. Coalition to Defend Affirmative Action (2014), the Supreme Court held that the voters of a state can choose to prohibit the use of racial preferences within public sector decision making, which, according to Justice Kennedy who wrote the Court's plurality opinion, includes university admissions. The Court's plurality maintained that such efforts do not violate the equal protection clause of the Fourteenth Amendment. This case will undoubtedly change how states incorporate affirmative action techniques into public sector decision making. Such efforts will require public administrators to rely on their discretionary judgment more in support of racial and gender diversity and to help ensure that public institutions demographically reflect the citizens they serve.

One of the most important lessons for public administrators to understand with regard to protecting their personal and professional liability is that when public organizations or public managers equate a numerical value to any race, regardless of the reason or decision-making justification, they are in violation of the equal protection clause. The recent Supreme Court case, Parents Involved in Community Schools v. Seattle School District No. 1, et al. (2007) illustrates this point.

In Parents Involved, the Court overturned decisions made by local school boards in Seattle, Washington, and Louisville, Kentucky, because each placed a numerical, arbitrary value on race in an effort to create a more racially diverse student body within their public schools. In Seattle, the school board classified students as either white or nonwhite. If a public school was not within ten percentage points of the district's overall white/nonwhite racial balance, administrators instituted a tiebreaker, designed to reselect certain student assignments that would bring the school within the targeted racial balanced needed to achieve the district's diversity initiative. In Louisville, the school board classified students as black or other and required all nonmagnet public schools to maintain a minimum of 15 percent black enrollment and a maximum of 50 percent black enrollment. Chief Justice John Roberts, writing for the Court's majority, argued that the fundamental purpose of the equal protection clause was to treat every citizen equally, regardless of race, religion, or class. He held that allowing local school districts to classify and group students according to their race purposively undermines the intent of this constitutional provision. Understanding liability as a public administrator means recognizing this essential element of American constitutional law.

Civil Servant Immunity in a Privatized Administrative State

Over the past few decades, the field of public administration in the United States and around the rest of the world has observed increased efforts to contract out and privatize government services to the private sector, nonprofit organizations, and other third parties. This effort has largely occurred due to the field's strong emphasis in new public management and producing a government that is more economically efficient and effective (Gore, 1993; Osborne & Gaebler, 1992; Rohr, 2002; Rosenbloom et al., 2010; Terry, 1998; Verkuil, 2009). These efforts have transformed the service delivery of public goods and services and distorted the traditional distinctions regarding which public sector responsibilities are inherently governmental while simultaneously raising important constitutional questions regarding how to evaluate the performance and responsibilities of contracted-out employees (Rohr, 2002; Verkuil, 2009).

To this point, John Rohr (2002) has often argued that contracted employees in the United States have the worst of two worlds: all of the liability that a traditional civil servant has without any of the qualified immunity generally afforded to public administrators. The reason this dynamic occurs is due precisely to how the Supreme Court has analyzed the decision-making capacity and constitutional obligations of contracted employees.

In West v. Atkins (1988), the Court addressed an essential question regarding the types of constitutional responsibilities contracted employees have when providing services to citizens who are in the custody of the state. Here, the Court maintained that a part-time physician who is under contract with a state to provide medical care to prison inmates at a state prison hospital is required to observe the same constitutional requirements as if he or she were a full-time public employee. The Court was unambiguous in its opinion that if the government chooses to contract out public services, like that of providing adequate medical care to prisoners, it cannot ignore its constitutional obligations to protect those in its custody. As Justice Harry Blackmun noted, “It is the physician's function within the state system, not the precise terms of his employment, that is determinative” (p. 1).

The implications of this case for public administration were significant. It suggests that private individuals who join in a contract with the state to provide public services can become state actors when they perform public services on behalf of the state (Rohr, 2002). If private, contracted employees do not demonstrate constitutional competence or violate the constitutional rights of the citizens they are serving, the federal courts can hold them personally and professionally liable for the damages they inflict (Rohr, 2002; Rosenbloom et al., 2010). Justice Antonin Scalia in Lebron v. National Railroad Passenger Corporation (1995) made this point explicitly clear: “Neither the federal government nor the state governments are allowed to evade the most solemn obligations in the Constitution by simply resorting to the corporate form” (sec. V, p. 39).

If the Supreme Court maintains that contracted employees must uphold constitutional competence in order to protect themselves from lawsuits, then logic would presume they also receive qualified immunity from suit when they are working on behalf of the state. In Richardson v. McKnight (1997), however, the Court denied qualified immunity to contract employees. According to Justice Stephen Breyer, the economic market achieves the same goals for private, contract employees as qualified immunity achieves for public employees.

The implications of this case are profound for the administrative state. When private or nonprofit organizations enter into a contract with the government, their employees engage in state action. In this professional capacity, contracted employees are responsible for upholding constitutional law and will likely sustain liabilities if they violate the legally and constitutionally protected rights of citizens. Such an environment provides credence to Rohr's argument that contracted employees have the worst of both worlds: all of the liability but no immunity from lawsuit. As a result, it is more challenging for contracted employees and private sector organizations that are engaging in state action to defend themselves against claims they are undermining constitutional law (Dickinson, 2009; Rohr, 2002; Rosenbloom et al., 2010).

These realities require that government agencies that contract out public services proactively communicate with private contractors regarding the legal and constitutional expectations associated with privatization. Rohr (2002) suggests that public administrators involved in contracting out services need to discuss why and how private organizations are more vulnerable to lawsuits when they engage in state action. They need to explain why complying with the rule of law and constitutional tradition is often expensive and inefficient, and they need to require that private contractors integrate new evaluative requirements into their organizational culture.

Laura Dickinson (2009) has recommended the incorporation of specific criteria in every state contract. She makes the case that when the state contracts out public values, it must create guidelines for evaluation that include (1) incorporating public law standards into each contract; (2) requiring private contractors to receive training in activities that promote public law values; (3) enhancing contractual monitoring by internal government actors and third parties; (4) clearly outlining performance benchmarks; (5) requiring contractors to receive accreditation from independent organizations; (6) mandating that contractors perform self-evaluations; (7) enhancing governmental termination provisions and allow for the partial governmental takeover of contracts for noncompliance; (8) allowing for beneficiary participation or broader public involvement in the design of contracts; and (9) strengthening enforcement mechanisms.