Free speech limitations on public employees

Free speech limitations on public employees
Wasson v Sonoma Co. Jr. Coll., 204 F.3d 659

A public employee may claim that he or she was disciplined as a result of his or her exercising his or her constitutionally protected right of free speech.

This was Sonoma County Junior College instructor Sylvia J. Wasson’s argument following her termination from her position. The reason for her dismissal: the College Board decided that she was the anonymous writer of six defamatory letters and flyers that vilified the college president, Robert Agrella.

Wasson sued, claiming the college’s action violated her First Amendment rights. Wasson, however, had denied writing the five letters and the flyer she claimed was the reason underlying her termination. Her denial proved fatal to her wrongful termination in retaliation for exercising her right to free speech argument.

The U.S. Circuit Court of Appeals, Ninth Circuit, said that a free speech claim depends on speech.... In what may be a variation of Catch 22, the court said that because Wasson denied writing the letters or otherwise being involved in the affair, she had no basis for claiming her right to free speech had been violated.

In the words of the court, “[w]e conclude that the plaintiff fails to state a First Amendment claim in these circumstances because she cannot show the alleged wrongful conduct was in retaliation for any exercise of her free speech rights.”

Wasson also presented an alternative argument: she was defending the First Amendment free speech rights of the actual writer of the offending letters and flyer.

The court dismissed this theory as well. The Circuit Court ruled that Wasson lacked standing because she did not show that she had any relationship to, or with, the alleged anonymous writer, the second prong of the three-prong test set out in Powers v Ohio, 499 US 400.

In order to prevail on the basis of a defending the free speech of others argument, the individual must show that he or she (1) actually suffered an injury in fact, (2) had a close relation to the third party, and (3) there was some hindrance to the third party’s ability to protect his or her own interests.

Further, the courts typically distinguish between a public employee’s exercising his or her right to free speech concerning a matter of public interest in contrast to speech that essentially involves the individual’s personal interests. Pickering v Board of Education, 391 US 563, sets out the tests applied by the courts in such cases.

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The approval of a leave of absence by individual not authorized to approve such leave is invalid

The approval of a leave of absence by individual not authorized to approve such leave is invalid

Renaud v City of New York, 269 AD2d 283

From time to time an individual is absent from work without approval – AWOL. What happens if the individual is absent after receiving approval to go on leave but the individual approving the leave is not authorized to grant such approval? This was an issue in the Renaud case.

Renaud was terminated because she was absent from her position without approval [AWOL] for three months. Renaud’s defense: one of the agency’s employee relations specialists approved the absence and therefore the agency cannot deem her to have been AWOL.

This seems to be an easy issue to decide, except although the employee relations specialist involved was not authorized to approve the leave in the first instance, the specialist was unaware that Renaud had been already referred for discipline because of her AWOL status.

May the employee rely on the unauthorized approval of her absence? This was the question considered by the Appellate Division when Leslie Renaud sued the Administration for Children’s Services in an effort to be reinstated to her position with the agency.

The court said that Children’s Services’ decision to terminate Renaud for a three-month absence without leave that was in flagrant violation of the agency’s time and leave rules was neither arbitrary nor capricious and sustained Children’s Services decision to terminate her.

What about Renaud’s claim that one of the agency’s employment relations specialists had approved her leave. In effect, Renaud contended Children’s Services was estopped from considering her absence AWOL since the employee relations specialist had approved it.

The Appellate Division quickly disposed of this argument. It said that estoppel is not available against an administrative agency for the purpose of ratifying administrative error.

Accordingly, Renaud could not rely on the approval of her leave by the employee relations specialist to neutralize the agency’s decision to dismiss her as the employee relations specialist was not authorized to grant any such approval on behalf of Children’s Services.

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Considering the value of toxicology reports in random drug tests

Considering the value of toxicology reports in random drug tests

Seeley v New York City, 269 AD2d 205

Are uncertified toxicology reports indicating positive drug test results sufficient to support a decision to terminate an employee? This was the issue presented by Clarice E. Seeley, a New York City police officer, who was terminated after being found guilty of testing positive for cocaine in a random drug test.

Seeley argued that due process required the court to vacate the police commissioner’s decision because it was not supported by substantial evidence. Seeley contended that the commissioner based his ruling on unreliable toxicology reports because they were not certified copies.

The Appellate Division was not impressed by this argument. After commenting that an administrative tribunal is not strictly bound by the rules of evidence, the court pointed out that foundation testimony by the toxicologist who supervised the testing and prepared the final toxicology reports was more than adequate to establish the authenticity and reliability of the copies of the reports entered into evidence.

Also noted was the fact that Seeley’s attorney declined the hearing officer’s invitation to examine the original toxicology reports before copies of them were received in evidence. The Appellate Division then sustained Seeley’s dismissal, commenting that the penalty does not shock our sense of fairness under the circumstances.

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