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Peculiarities of Public Sector Process

I recently had the privilege of teaching a class in Municipal Law at the Santa Barbara College of Law.  One thing that I found myself emphasizing to the students was how public entities have to observe a number of things that the private sector doesn’t need to worry about.  This isn’t just because of State or Federal laws that might apply to the entity, but also because of the fact that when a governmental entity acts it has to be aware of and make sure that it is conducting itself in accordance with Constitutional principles.  This comes up in a number of different contexts. 


For example, if a special district allows private groups to include announcements or messages in utility bills it has to be aware of the First Amendment, because it may be deemed to have opened up a “public forum” for free speech purposes.  Also, cities frequently regulate in areas that involve the First Amendment, whether it’s adopting sign regulations, regulating adult oriented businesses or seeking to restrict expressive conduct in public places, such as distributing leaflets or soliciting donations.  Based upon cases from all the way up to the U.S. Supreme Court, numerous legal concepts and rules apply to such regulations, and it gets very complex.


Also, consider for a moment how a body like a city council acts in a number of roles when it carries out its responsibilities.  It may be acting in an administrative capacity when it deals with a budget or a contract, or in a legislative capacity when adopting laws through the “police power” (Article XI, Section 7 of the State Constitution).  It may also be acting as a decision maker in what is called a “quasi-judicial” proceeding, applying existing laws or regulations to a set of facts, such as when it might be considering issuing or revoking a license or permit.  In such hearings both State and Federal cases have held that the participants are entitled to some degree of “due process” of law, and a number of procedural rights have to be afforded, such as having a fair hearing with an opportunity to present evidence and respond to evidence to impartial decision-makers.


Another area where there is a big difference between the public and private sectors is how the entity must deal with its employees, especially when imposing discipline.  Cases have held that permanent employees in a government employment system have a “property right” in their continued employment once they have passed their probationary period.  What that means, in a Constitutional sense, is that before they can be disciplined they have a right to procedural due process (again, an opportunity to present evidence, know what the charges against them are, and have it heard by an impartial decision-maker).  This type of requirement doesn’t apply to private sector employees, but applies to government employees based upon the 5th and 14th Amendments to the Constitution and the requirement that a person cannot be deprived of life, liberty or property without due process of law.

One of the things I told the students in the class, most of whom will be attorneys in private practice after they pass the bar, and not working as public sector lawyers, is that they need to be aware of these distinctions when representing private clients in their dealings with public agencies.  Often, a different set of principles and concepts will come into play than what would otherwise apply to a non-governmental entity.


Although I don’t necessarily agree, in the words of one of my law partners; for every simple private sector process, there is a far more complex, irrational but important public sector process.


– Posted by David H. Hirsch;