Tuesday, August 02, 2011

The free speech rights of volunteer workers serving with a public or quasi-public entity


The free speech rights of volunteer workers serving with a public or quasi-public entity
Gorman-Bakos v Cornell Cooperative Extension of Schenectady County and others, CA2, 252 F. 3d 545

Among the issues commented upon by the Second Circuit Court of Appeals in deciding the Gorman-Bakos case was the status of volunteers serving with an “agency of the State.” Does such a volunteer have the same constitutional rights and protections with respect to free speech as are available to a paid employee of an “agency of the State?”

Lynn Gorman-Bakos and her husband, Rodney Bakos, served as volunteers with the Schenectady County Cooperative Extension 4-H program. Contending that they were dismissed from the program in retaliation for their exercising constitutionally protected speech, they sued. The Extension Program, on the other hand, said that the Bakoses had not been terminated but that they had resigned from their respective volunteer positions.

According to the decision, the federal district court justice “presumed that plaintiffs had suffered an adverse employment action,” i.e., they were in fact terminated. Although the Circuit Court did not specifically address the question of whether the Bakoses claims of termination from their respective volunteer positions based on alleged retaliation because of their exercising their right of free speech was the same as those enjoyed by salaried government employees or whether they should be evaluated by applying a different standard, the court did note that in Hyland v Wonder, 972 F.2d 1129, the U.S. Court of Appeals, Ninth Circuit, ruled that: "Serving as a volunteer constituted a government benefit or privilege and that “[r]etaliatory actions with less momentous consequences [than loss of employment], such as loss of a volunteer position, are equally egregious in the eyes of the Constitution because a person is being punished for engaging in protected speech.”

This suggests that the Second Circuit, were it to address the question, would not distinguish between paid employees and volunteer workers insofar as the right to protected free speech is concerned. The general rule in such “free speech” cases was set out in Connick v Myers, 461 US 138. In Connick the U.S. Supreme Court said that federal courts will consider retaliation allegations based on an employee's claim of free speech where the speech concerns matters of public concern in contrast to speech involving “only matters of a personal interest” to the employee.

A second test that must be met by a public employee claiming that his or her employer's action violates his or her right to free speech: Did the employee's statement outweigh the employer's interest in terminating or otherwise disciplining an employee whose conduct “hinder effective and efficient fulfillment of its responsibilities to the public?” Other decisions in which a public employee's right to free speech was considered include Tytor v Laramie County School District, CA10 [unpublished]; Jeffries v Harleston, CA2, 52 F3d 9; and Barnard v Jackson County, CA8, 43 F3d 1218.

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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