Wednesday, June 22, 2011

Protected speech in public employment

Protected speech in public employment
Green v Board of County Commissioners, USCA, 10th Circuit, Docket 05-6297

The general rule applied in cases where a public employee’s allegation that his or her right to free speech has been violated is that while an employee's freedom of speech regarding matters of “public concern” may not be restricted by a public employer, the employer may prohibit an employee from speaking “in an official capacity.” The Green case involved the analysis and application of this general rule.

Jennifer Green was employed at Canadian County, Oklahoma's Juvenile Justice Center as a drug-lab technician and detention officer. As part of her job, she performed drug-screening tests. She was concerned that some of the samples tested produced “false-positive” results. As the Center did not have a confirmation testing policy, she raised the issue of “false positive” test results with her immediate supervisor, William Alexander. Alexander was not responsive.

Without Alexander’s knowledge, Green contacted the manufacturer of the drug-testing equipment used at the Center and asked questions about confirmation testing. In addition, she spoke with representatives of the Department of Human Services about the need for a confirmation test. Ultimately, Green arranged for a caseworker to transport a sample that had tested positive for drugs to a hospital for confirmation testing. The confirmation test indicated that the Center's initial test of the sample produced a false-positive result. Green communicated this information to Mr. Alexander. Soon thereafter, the Center adopted a formal confirmation testing policy.

Green complained following this episode her employer treated her less fairly and she was subsequently dismissed from her position. She sued, contending that her employer’s actions violated the federal Civil Rights Act, 42 U.S.C. 1983 [Civil action for deprivation of rights], and state-law. A federal district court judge dismissed her petition and Green appealed to the Circuit Court of Appeals.

One element of Green’s complaint alleged that the County’s actions violated her Constitutional right to free speech.

Addressing the “free speech” aspect of her appeal, the Circuit Court concluded that Green’s First Amendment rights had not been violated because Green’s “free speech” allegations did not involve communicating with newspapers or her legislators or performing some similar activity.

Green disagreed with her supervisors' evaluation of the need for a formal testing policy and her unauthorized obtaining of the confirmation test to prove her point. However, the Circuit Court, citing Garcetti v. Ceballos, 126 S. Ct. 195 [at 1960], said that a government employee’s First Amendment rights do “not invest them with a right to perform their jobs however they see fit.” Accordingly, there is no “judicial oversight of communications between and among government employees and their superiors in the course of official business” and “displacement of managerial discretion by judicial supervision.”

Here, said the court, Green's communications with third parties about confirmation testing are the types of communications that would be attributable to the Center and thus the Center has an interest in controlling them. Accordingly, in the eyes of the Circuit Court, Green’s speech was not “protected speech.”

Sustaining the lower court’s dismissal of Green’s petition, the Circuit ruled that with respect to the unauthorized confirmation test arranged for by Green and her related communications to third parties, Green did not speak or act in her capacity as a citizen, but rather was acting as a government employee and thus did not exercise protected free speech.

Free speech issues raised by public employees have been considered by the U.S. Supreme Court in a number of instances. Essentially public officers and employees enjoy “protected speech” in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreement concerning internal operations of the department or agency which do not rise to the level of a “public interest,” are not protected by the Constitution.

Typically, the resolution of such “free speech” cases turns on the court’s view as to whether the employee’s comments address a matter of “public concern” or a matter of “personal interest.”

Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

The Discipline Book at http://thedisciplinebook.blogspot.com/

Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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