Counterterrorism experts can't appeal LSU firing, school says (Hatfill Blacklisting Claimed Legal)

New Orleans Times-Picayune ^ | September 6, 2002 | Coleman Warner

[PJ-Comix]

Two officials fired from leadership posts in a counterterrorism program at Louisiana State University, one of whom is a figure in the federal anthrax investigation, have no appeal rights under university policies, said school officials, who refused to elaborate on what prompted the terminations.

Stephen Guillot, director of LSU's National Center for Biomedical Research, and Steven J. Hatfill, hired in July as associate director for the program while he was a subject of FBI scrutiny, were unclassified workers who served at Chancellor Mark Emmert's pleasure under powers granted by the LSU Board of Supervisors, officials said.

Working in a continuing-education program, neither had due-process rights associated with classified government workers or tenured faculty, Gregory Vincent, vice provost for academic affairs, said Thursday.

Vincent said Doreen Maxcy, assistant dean of the Division of Continuing Education, has been named acting director of the National Center for Biomedical Research, which trains emergency workers to respond to a terrorist attack. He said no other major staff changes are pending. Supported by U.S. Justice Department grants, the LSU center has a staff of about 18, he said.

Emmert has asked Vincent to conduct a sweeping review of the Division of Continuing Education, with a total staff of about 150, and the administrative task may be complete by the end of the fall semester.

Because they are personnel matters, LSU officials refused to discuss why Hatfill and Guillot were fired. But Hatfill's presence placed the Baton Rouge campus in an uncomfortable national spotlight, even though he hasn't been named a suspect by the FBI. And top LSU administrators may have been riled that they didn't learn until Tuesday that Guillot had received an e-mail directive from a Justice Department official Aug. 1 demanding that Hatfill play no role in any program financed by the federal agency. Guillot hasn't responded to requests for comment.

Justice Department officials declined to say why the Office for Domestic Preparedness, which administers grants, sent the directive to Guillot, a move called a "blacklisting" tactic by a Hatfill spokesman.

On Thursday, Assistant Attorney General Deborah Daniels, representing the Justice Department, said the Office for Domestic Preparedness was acting within its responsibility in sending the directive.

"It is a specific condition of our grant to LSU that we maintain management oversight and control," Daniels said.

The federal agency "has not been involved in any decisions made by LSU" regarding Hatfill's employment, Daniels said.

[VA Advogado]

Those are political appointments. They have different employment conditions than regular government employees. Q: Does the employment-at-will doctrine apply to all employees? A: No. There are three broad categories of employees who are not governed by employment-at-will: * Government employees: Federal, state and local government workers are protected by the Fifth and Fourteenth Amendments, which prohibit the government from depriving any person of "life, liberty or property" without due process of law. These employees are considered to have a property interest in their jobs, and the right to due process places significant restrictions on arbitrary dismissals unrelated to job performance. Some additional protection is provided by federal, state and local civil service laws. A word of advice; it's a mistake to personally attack someone for ignorance, unless your own credentials are impeccable. I doubt you have a law degree, and it's not clear you're any better informed than those you're attacking.

You've yet to show me the ACLU's distinction for 5th amendment purposes between a political appointed who WORKS FOR THE GOVERNMENT and the theoretical government employee they reference (and fail to cite any case law to support). Show me how smart you are. :)

[VA Advogado]

You're right, I'm not familiar with it. By all means post a cite, because I'm not familiar with a precedent that says you don't have to respect the Bill of Rights if you're competing with a private entity. (And I don't believe the state should be competing in the marketplace anyway.) But in any case state universities are not operating in the free market.

Here is a graph of the market participant doctrine. The second link is a nice slide show that explains it. http://faculty.lls.edu/~manheimk/cl1/mpd1.gif http://classes.lls.edu/f2000/manheimk/cl1/ppt/mpd/sld001.htm

[VA Advogado]

Sorry for the trashed formatting on my two posts to you.

[Right Wing Professor]

You've yet to show me the ACLU's distinction for 5th amendment purposes between a political appointed who WORKS FOR THE GOVERNMENT and the theoretical government employee they reference (and fail to cite any case law to support).

(from the Office of Personnel Management web site.)

Employees in the excepted service who are subject to change at the discretion of a new Administration are commonly referred to as "Schedule C" employees. Schedule C positions are excepted from the competitive service because they have policy-determining responsibilities or require the incumbent to serve in a confidential relationship to a key official.

Agencies may separate Schedule C appointees at any time if the confidential or policy-determining relationship between the incumbent and his/her superior ends. Schedule C appointees are not covered by statutory removal procedures and generally have no rights to appeal removal actions to the Merit Systems Protection Board. This is true, regardless of veterans preference or length of service in the position. Agencies should consult their General Counsel or OPM's General Counsel on Schedule C separations.

(and elsewhere on that site)

Officers and employees who serve "at the pleasure of" the President or other appointing official may be asked to resign or may be dismissed at any time. They are not covered by standard civil service removal procedures and have no right of appeal.

You haven't cited case law once to back up any of your (as far as I can tell) entirely erroneous theories about state government employment. It takes real chutzpah to criticize others for the same failure.

Show me how smart you are.

You appear to be ignorant, foolishly prone to state as categorical facts things that can be easily disproven, and personally abusive. Now explain to me why I should care in the least whether you think I'm smart or not.

[Right Wing Professor]

Here is a graph of the market participant doctrine.

This relates to the Commerce Clause, not the Bill of Rights. I don't see how it's relevant.

[ravingnutter]

You must not have seen my post yesterday on the other thread...Hatfield's own attorney admitted that Hatfield "might have" embellished his resume and in a separate interview, admitted that Hatfield was fired from SAIC for failing a lie detector test for a security clearance. Here is what I posted...

News reports have said Hatfill fabricated claims on his resume when he applied for work with SAIC, including falsely claiming to have a Ph.D., experience with U.S. Army Special Forces, and membership in Britain's Royal Society of Medicine.

Hatfill's lawyer, Victor Glasberg, said the Special Forces claim was real, but suggested Hatfill might have been "expansive" with other resume claims. Hatfill was fired from SAIC last year under circumstances neither side has been willing to explain, although Hatfill says the firing has nothing to do with the anthrax investigation.

Sacramento Bee

In reference to the SAIC job which frequently seems to come up in these discussions, Hatfill's lawyer also verified that he was fired from there for failing a lie detector test...

At Fort Detrick, Hatfill never had nor needed security clearance, Glasberg and Dasey said. Once at Science Applications International, he got low-level security clearance for one project. When he was detailed to work for the CIA on another project, a CIA lie detector test was ambiguous when he was asked about his days in Africa, Glasberg said. His clearance was revoked pending an appeal.

Virtually none of Hatfill's work at Science Applications International required a clearance, Glasberg told the Post, but the company used its revocation as a reason to fire Hatfill in February. He said the company has since offered Hatfill settlement payments, which he rejected, and more work, which he accepted.

Newsmax

[VA Advogado]

This relates to the Commerce Clause, not the Bill of Rights. I don't see how it's relevant.

And how would you distingush between the two when doing a constitutional analysis?

[VA Advogado]

You appear to be ignorant, foolishly prone to state as categorical facts things that can be easily disproven, and personally abusive. Now explain to me why I should care in the least whether you think I'm smart or not.

So with that cited regulation/statute, you're saying that trumps your interesting theory about how firing a government employee at-will somehow violates the employees constitutional rights? You're absolutely brilliant! :)

[Right Wing Professor]

Once again; there is a clear distinction between political appointees, who may indeed be fired at will, and regular government employees, for whom due process protections are more extensive. Steven Hatfill, the subject of this thread, was not a political appointee.

[Right Wing Professor]

This relates to the Commerce Clause, not the Bill of Rights. I don't see how it's relevant.

And how would you distingush between the two when doing a constitutional analysis?

The Commerce clause gives specific power to the Federal Govt. to regulate commerce between the states, and prohibits the states from doing so. The Bill of Rights prohibits the federal govt. (and via the 14th amend., the states) from infringing certain particular rights of citizens. One regulates federal-state relations; the other the relations between both feds and the states on the one hand, and citizens on the other. In other words, they are very different in purpose and nature.

But, hey, this is only a layman's analysis. Might I suggest if you really want to learn Consitutional law, you take the LSATs and apply to law-school?

[VA Advogado]

One regulates federal-state relations; the other the relations between both feds and the states on the one hand, and citizens on the other. In other words, they are very different in purpose and nature.

Sooooooooo, if TOMORROW, congress was to pass a law that said any attempted constitutional analysis by the screen name "Right Wing Professor" is an unauthorized practice of law and is a 5 year felony, and they prosecuted and convicted you for what you wrote today, you would instruct your lawyer not to raise an article 1, section 9 ex post facto argument because that part of the constitution only applies to 'federal-state relations"?

[VA Advogado]

Might I suggest if you really want to learn Consitutional law, you take the LSATs and apply to law-school?

No, no, no, this is much more entertaining than law school. Its like you really believe what you're writing.

[VA Advogado]

Once again; there is a clear distinction between political appointees, who may indeed be fired at will, and regular government employees, for whom due process protections are more extensive. Steven Hatfill, the subject of this thread, was not a political appointee.

And where is that distinction made? Statue? Regulation? Or the Constitution? Are you saying a simple statue or regulation changing the lable given to one's employment can trump the whole contitution? What would your friends say at the ACLU?

[Right Wing Professor]

And where is that distinction made? Statue? Regulation? Or the Constitution? Are you saying a simple statue or regulation changing the lable given to one's employment can trump the whole contitution?

I cited the regulation, with a link. You either didn't understand it, or ignored it. So far, in this thread, you've cited nothing, except your own odd theories of the law. Sorry, bud, I've got better things to do than argue with nutters.

And it's 'statute'. Statues are big stone things.

[Right Wing Professor]

No, no, no, this is much more entertaining than law school.

I doubt you have any basis for comparison.

[VA Advogado]

I cited the regulation, with a link.

So simply put, you're claiming a regulation can trump the constitution. Brilliant. :)

[bvw]

I wish you were right and that the Prez could fire the whole DOT, bottom to top and top to bottom. But regulation, custom, entrenched bureaucracy and payola get in the way. Damn this is War -- and the Prez could by existing executive orders do so.

[Right Wing Professor]

So simply put, you're claiming a regulation can trump the constitution. Brilliant. :)

No, those are the words you're putting in my mouth. I'm saying those regulations were written with past Supreme Court decisions in mind. The most relevant decisions are:

Rutan v. Republican Party of Illinois (88-1872), 497 U.S. 62 (1990)

"A government's interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views."

(The court found that most politically based firing was impermissible, but 'certain high-level employees' were excepted.)

BRANTI v. FINKEL ET AL. 445 U.S. 507 (1980)

"On the other hand, it is equally clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments. In sum, the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position; rather, the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved. "

This repeats the majority opinion in ELROD v. BURNS, 427 U.S. 347 (1976)

"A second interest advanced in support of patronage is the need for political loyalty of employees, not to the end that effectiveness and efficiency be insured, but to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate. The justification is not without force, but is nevertheless inadequate to validate patronage wholesale. Limiting patronage dismissals to policymaking positions is sufficient to achieve this governmental end. Nonpolicymaking individuals usually have only limited responsibility and are therefore not in a position to thwart the goals of the in-party. "

In other words, political appointees may be removed at will. Most government employees cannot. Now stop playing at being a lawyer; it looks really bad when a mere amateur shows you up.