There are many diverse career options that become available with a law degree. Although most people probably enter law school with the image of a private litigator on their minds, because this is what television teaches us, it is important to understand other opportunities that may arise someday. For better or worse, our governments have grown tremendously in the last hundred years, and there are a myriad of legal jobs in the public sector. In addition, the private employment lawyer will inevitably encounter a case that concerns public employees, and it becomes necessary to understand the differences between private and public employees.

One main difference between the public and private sectors that comes to mind is this: government, unlike private business, is subject to the federal constitution. This is not to say that the private sector is never subject to the federal constitution. For instance, a "company town," that essentially functions like a government, can be a de facto government that is subject to constitutional requirements. If that town employs security guards, a court could potentially treat them similarly to police officers and hold them to fourth amendment search standards. This would be a rare constitutional issue, but others apply more frequently. Other examples of constitutional issues are freedom of speech and due process.

Another difference between the public and private sectors arises in collective bargaining. While one might bemoan the lost production in the event of a private strike, it is somewhat different when the striking workers are teachers, police, or firemen. Suddenly parents are wondering what to do with their kids while they are at work. One day without crime or fire protection presents an even stronger example. When Big Jim is hitting you in the head with, oh, a piano (or something), one kind of hopes that police will stop this from happening...even if their union has reached a bargaining impasse with the department.

The purpose of this annotation is to familiarize lawyers with some of the issues that can arise when dealing with government employees. I found some books by searching on the ATLAS (Associated Topeka Libraries Automated System) program, found on the library website. The rest of the books just happened to be in the same section, so I used them as well. I also found the symposium and quarterly journal with ATLAS. I found the websites by plugging “government employment” into good-old reliable yahoo.com. I resorted to the evil empire of WESTLAW to find the law journal articles. Enjoy!

Books

Joseph E. Slater, Public Workers, (Cornell University 2004).

This book can be found in the law library under the call number HD8005.2.U5 S58. It is useful because it presents a history of collective bargaining in the public sector. It is divided into six chapters: 1) “The Boston Police Strike of 1919;” 2) “Yellow-Dog Contracts and the Seattle Teachers, 1928-1931;” 3) Public Sector Labor Law before Legalized Collective Bargaining;” 4) “Ground-Floor Politics and the BSEIU in the 1930s;” 5) “The New York City TWU in the early 1940s;” and 6) Wisconsin’s Public Sector Labor Laws of 1959 and 1962.”

The author notes that while union presence in the private sector has declined from the 1950’s to the 1990’s, union membership in the public sector has increased quite a bit during that time period. When this book was written, about 40 percent of all union members were public employees. Slater believes that public sector unions have been ignored by both labor historians and historians in general, and that scholars do not believe that public unions and workers are “real” unions and workers. Instead of addressing public sector unions comprehensively, this book focuses on specific events and unions. Public employees had fewer legal rights to strike, organize, and bargain.

The Attorneys of the Law Firm of Passman & Kaplan, P.C., Federal Employees Legal Survival Guide (National Employee Rights Institute 1999).

This book has been marketed toward the employees of the federal government with limited knowledge of the law. It states that while public employees can have broader protection, the many confusing laws can make it more difficult for them to obtain relief. This book is divided into 30 chapters, including chapters on unemployment compensation, overtime, workers’ compensation, specific statutes and programs, and “how to find a lawyer.” One helpful thing about this book is that it has a section that explains civil service acronyms and a glossary of frequently used terms. This could be a good way to learn the general background of law related to public employees. Since it was written for the layperson, it should be more readable.

Marcy S. Edwards, Jill Leka, James Baird, and Stefanie Lee Black, Freedom of Speech in the Public Workplace (ABA 1998).

This book can be found in the law library under the call number KF4772 E38. Its purpose is to give the reader an understanding of the basic issues involved in the regulation of public employees’ speech. Any development after May 1, 1997 will not be included in the research for this book. This book begins with a general overview of the first amendment and the important factors in any such analysis. It then outlines the important historical developments as pertain to government employees, including major United States Supreme Court decisions. As the book progresses, it focuses on different types of issues in the public employment context. It also hones in on specific job categories and the issues likely in those contexts. Finally, it addresses issues arising from contractors and volunteers.

Yong S. Lee, A Reasonable Public Servant: Constitutional Foundations of Administrative Conduct in the United States (M. E. Sharp 2005).

This book attempts to outline a great deal of the law applicable to a public servant. The author of the forward notes that courts have recently scrutinized agencies more strictly, and she notes that ignorance of the law is no excuse. It is divided into three parts: 1) Constitutional Foundations of Public Service, 2) Constitutional Rights of a Public Servant, and 3) Civil Rights of a Public Servant. Out of all of these sources that I have reviewed, this one has the best chance of being readable. I actually enjoyed reading the introduction: something I’ve never enjoyed, even in a novel. I am beyond words at this anomaly.

Symposium

Symposium, Miriam K. Mills, ed., Alternative Dispute Resolution in the Public Sector (Nelson-Hall 1991).

This source looks like a book, but it is actually a symposium. I found it by using ATLAS, and the call number is KF5365 D57. It is a little dated, but it is the most recent book in the library on what I thought was an interesting subject. As the title suggests, this symposium concerns alternative dispute resolution. It is divided into three parts. The first part is an overview of different approaches to resolving conflicts. The second part deals more with labor relations, and the third part deals specifically with environmental disputes.

Quarterly Journal

Government Union Review and Public Policy Digest v.21 (2004).

This quarterly journal can be found in the law library under the call number K7.G68 U54, 21st volume. The journal contains four articles. Kevin Dayton writes, in “Labor History in Public Schools: Unions Get ‘Em While They’re Young,” that labor unions are attempting to impose labor’s view of history on students in public schools. Unions are apparently lobbying the legislatures in order to either mandate the general teaching of labor history, or to impose a special labor history week. The author obviously doesn’t like this very much, and he sees this as potentially manipulative.

The second article, “Reform Collective Bargaining,” recommends seven practical improvements for school boards and administrators, so that they can increase their bargaining power. The third article, “The Pennsylvania State Education Association: Compelling Teachers, Lobbying Politicians, and Increasing Taxes,” claims that state mandated compulsory union dues have given the PSEA too much political power, which it has in turn used to raise taxes for education. The article claims that the PSEA uses its political power to increase its members’ salaries. The fourth and final article, “Let Teachers’ Unions Pay For Union Business,” is pretty self explanatory. The author wishes that public unions would receive funds only from members, and not from taxpayers.

Law Journal Articles

Jason P. Nance & Philip T. K. Daniel, Protecting Students from Abuse: Public School District Liability for Student Sexual Abuse under State Child Abuse Reporting Laws, 36 J. L. & Educ. 33 (2007).

This law journal article concerns child abuse in public schools and a school’s potential liability when that happens. Lawyers working for public schools will probably have to deal with this issue sooner or later. The journal notes that all 50 states have child abuse reporting statutes that schools can violate by failing to timely report abuse cases. Under these statutes, school teachers, employees, and authorities can be held liable in a civil suit. Generally, the school is required to report to a state agency, which will investigate the claims. Abused students can also bring an action pursuant to “section 1983 of the Civil Rights Act of 1871, Title IX of the Educational Amendments of 1972, or common law negligence theories.” This article outlines the approach that the Ohio Supreme Court has taken with respect to civil liability in these types of cases, and it compares this approach with various other methods of obtaining a remedy. Since the article provides good background on this area, a lawyer working for a school should find it beneficial.

Katherine J. Fitzpatrick, A Teacher’s Right to Strike: Arbitration’s Quid Pro Quo, 36 J. L. Educ. 131 (2007).

This is a law journal article that assesses the arguments for and against granting teachers the right to strike. At this time many states have specifically prohibited teachers’ strikes. In addition, public employees are not granted this right from the common law. However, teacher’s unions occasionally threaten to strike anyway, in order to gain bargaining power on an important issue. Although most public employees in the country are not allowed to strike legally, this issue has been debated since the 1980’s. Lawyer’s working for public schools may have to deal with this issue to a greater extent in the future, if this debate matures.

Ralph D. Mawdsley, J.D., Ph.D. & Allan Osborne, Ed.D., The Supreme Court Provides New Direction for Employee Free Speech in Garceeti sic v. Ceballos, 214 Ed. Law Rep. 457 (2007).

This article deals with the recent United States Supreme Court case of Garcetti v. Ceballos. In that case, a public employee was held not to have a first amendment right to free speech. The public employee worked as a prosecutor, and because of perceived ethical concerns, he testified on behalf of defense counsel. After allegedly being retaliated against by his employer, the public employee brought a § 1983 lawsuit. The Court recognized that a public employee has some 1st amendment rights when speaking about matters of public concern. However, the Court ruled that the government’s interest in performing its duties was stronger in this context. One determinative factor was that Garcetti was acting as a government employee when he testified for defense counsel. This article does a good job of outlining the case, and it also discusses the ramifications to educational institutions.

Jeremy Kirkham, Civilian Military Educators: Are Their Civil Rights Being Protected?, 36 J. L. & Educ. 149 (2007).

This article concerns civilian educators working for the Department of Defense. These public employees are concerned that their civil service protections could be eroded by the recent Public Law 108-136. This rule allows the Department of Defense to waive existing laws addressing management of civilian educators, in the interest of homeland security. The author claims that the Department can now “ignore existing laws governing labor relations, discipline, pay, and performance standards” for these employees. The American Federation of Government Employees has blocked this law in federal court, subject to an impending appeal. This article discusses the proposed rule and how it will affect the bargaining power of public employees’ unions.

Brian J. Moline, Regional Focus: Ethical Dilemmas for the Kansas Government Lawyer, 5 Kan. J. L. & Pub. Pol’y 105 (1995).

This article focuses on government lawyers in Kansas. The author notes that public lawyers “have an additional obligation to protect and advance the public interest.” As employees of the state, public lawyers are subject to additional statutes concerning ethics. The article highlights some important Model Rules of Professional Conduct and analyzes them with reference to specific Kansas statutes and the general concept of working for the public interest. The article outlines the following concerns for a public lawyer in Kansas: conflicts of interest that can arise from receiving gifts, the obligation not to exploit a public office to advantage a private client, confidentiality, impartiality, expediting litigation, and advocacy.

Websites

If you are interested in government employment, here are a few websites to help you in your search for gainful employment. The first is an official federal site, the second is an official Kansas cite, and the rest are created by companies (signing up is usually free). I would also encourage you to browse the TWEN site for the professional development office. They have a file on that page with a list of links for different branches of the government.

www.usajobs.opm.gov (official federal site)

da.state.ks.us/ps/aaa/recruitment (official Kansas site)(unfortunately this one will not become a link...simply copy and paste it into your browser).

www.govtjobs.com

www.governmentjobs.com

www.monster.com

www.hotjobs.com