Constitutionally protected speech of public officers and employees

Constitutionally protected speech of public officers and employees

McKinley v Kaplan, CA11, 262 F. 3d 1146

The general rule is that a public employee cannot be disciplined simply for exercising his or her constitutional right to free speech concerning matters of public interest. Where the employee speaks out on matters of public concern, the government bears the burden of justifying any adverse employment action it might take against the individual.

A public employee's speech concerning a private or personal interest, however, is a different matter. The public employer is not required to justify disciplinary action taken in response to an employee's speech regarding personal matters, such as a change in the employee's duties or work location.

Further, in Pickering v Board of Education, 391 US 563, the U.S. Supreme Court held that a public employee's right to freedom of speech is not absolute because “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.”

The McKinley case raises another element to consider concerning the right of a public employer to regulate the speech of its employee -- the employer's expectations with respect to a policy-maker's speech concerning matters of public interest related to the individual's work.

Margaret McKinley, a volunteer and unpaid member of the Miami-Dade County Film, Print, and Broadcast Advisory Board,* was removed from her position because, said the County, she had expressed and supported a position that was “inappropriate and insulting to the community” represented by the sponsor of her appointment as well as being inconsistent with County policy.

According to the decision, the County had adopted a policy “prohibiting contracts between the County and any firms doing business either directly or indirectly with Cuba.” After determining that an organization planning an Entertainment Conference “was doing business with Cuba by inviting Cuban artists to perform,” the County voted against providing any public monies to support the event.

McKinley disagreed with this decision and made a statement at a public meeting held by the Miami Beach Fashion, Film, Television and Recording Committee to the effect that losing the Conference would hurt Miami's entertainment industry and that the County's action improperly reflected only the views of the Cuban-American community. She was quoted in the Miami Herald as follows: "While we respect and appreciate the concerns of Cuban-Americans in the exile community, allowing a few people's political standpoint to dictate the potential economic growth of the area is not for the benefit of the community as a whole."

McKinley sued the County after she was dismissed from her position, contending that the county violated her First and Fourteenth Amendment rights because she was fired as a result of the public statement she made concerning a County policy with which she disagreed.

A federal district court judge dismissed McKinley's complaint, holding that the First Amendment did not provide her with any right to continued government employment. The court's rationale: McKinley's role on the Film Board involved public contact and providing input into County policy decisions and she failed to properly represent the views and policies of the County to the public. The Circuit Court affirmed the ruling, pointing out that the Pickering decision sets out a four prong test for determining if an employee's protected speech rights have been violated by a public employer's action:

1. Did the speech involve a matter of public concern?

2. If so, does the government's interest in promoting the efficiency of the public services it performs through its employees out weight the employee's interest in protected speech?

3. If so, did the employee's speech play a substantial part in the government's decision to discharge the employee? and, finally,

4. If the speech was a substantial motivating factor in the employer's decision, has the government shown by a preponderance of the evidence that it would have discharged the employee regardless of the protected conduct?

The parties agreed that the only issue to be addressed in this instance was “the balancing prong of the Pickering test” -- weighing the respective interests of the County and McKinley. According to the court:

1. On McKinley's side of the scale is her interest in voicing her opinion on a controversial county resolution.

2. On the County side is its need to maintain loyalty, discipline, and good working relationships with those employees and board members they appoint and supervise.

The Circuit Court's conclusion: the balance tipped in favor of the County based on the proposition that “governments have a strong interest in staffing their offices with employees that they fully trust, particularly when the employees occupy advisory or policy-making roles.” Finding that McKinley was a “policy-maker,” based on the fact that her duties required her to serve in an advisory capacity with input on policy issues, the court concluded that this factor “gives the County a greater interest in removing her based on her speech.”

The Circuit Court then said that “[p]erhaps more important to our decision than [McKinley's] policy influence or public contact, however, is the fact that [McKinley] served as an appointed representative of the County ... and she failed to support [its] interests.” According to the ruling:

It was not [McKinley's] right to free speech that was affected by the County Commission's decision to remove her. Rather, it was her right to maintain an appointed position ... in light of her choice to publicly dissent from [the County's] clearly stated views and policies.

Whistle blowing involves another element that must be considered when determining if the employer's interest in limiting its employees' speech outweighs an employee's interest in free speech. For example, Section 75-b of the Civil Service Law, provides that a public employer “shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information regarding a violation of law ... which violation creates and presents a substantial and specific danger to the public health or safety....” It also includes a provision, Section 75-b.4, that states that nothing in the Section “shall be deemed to ... prohibit any personnel action which otherwise would have been taken regardless of any disclosure of information.” [See, also, Labor Law 740].

Sometimes it may be difficult to distinguish the line between “free speech” and “whistle blowing.” For example, did the McDonald case [McDonald v City of Freeport [TX], 834 FSupp 921] concern the issue of “free speech,” or “whistle blowing” or, perhaps, both.

In McDonald the court considered allegations made by police officers that the City fired one police officer and forced another to retire after they spoke to the media about alleged police misconduct. Some might classify this type of activity “whistle blowing.” The federal district court, however, made its ruling based on “free speech” concerns, holding that such action violated the police officers' First Amendment rights.

In this instance, said the court, the employee's interest in revealing such matters of public concern outweighed the police department's interest in maintaining “an efficient police department.” According to the decision, only a concern for “national security” or similar situations would serve to limit an employee from revealing improper governmental practices to the public.

* The pay status of the individual has no bearing with respect to an individual's alleged terminated for an improper or unconstitutional reason. As the court indicated in Hyland v Wonder, 972 F.2d 1129, serving as a volunteer constitutes 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.”

School's attorney not a school official

School's attorney not a school official

Decisions of the Commissioner of Education #14,595

One of the issues considered by the Commission of Education in Philips v Liverpool Central School District was Philips' objection to a statement made by the District's attorney during a regular meeting of the District's Board of Education.

The Commissioner, citing Matter of McGinley, [Decision 11,244], said that the statement made by the attorney at the Board's meeting to which Philips objected “is not actionable in the context of a Section 310 appeal to the Commissioner” because the attorney is neither a district officer nor district employee.

Further, the Commissioner said that General Municipal Law Section 805-a, which prohibits a board member from discussing confidential information acquired during the course of his or her official duties, does not apply with respect to statements made by the school district's attorney.

Suspended employee’s reinstatement conditioned on a written assessment from a licensed therapist

Suspended employee’s reinstatement conditioned on a written assessment from a licensed therapist

Matter of Board of Educ. of the City School Dist. Of the City of N.Y. v Campbell, 2011 NY Slip Op 32018(U), Sup Ct, NY County, Judge Joan A. Madden [Not selected for publications in the Official Reports.]

A tenured teacher employed by the Board of Education of the City was reassigned because of his alleged violation of the Board of Education’s Internet use policy barring accessing pornographic material on a school computer. Ultimate the teacher was served with disciplinary charges pursuant to Education Law 3020-a alleging conduct unbecoming a teacher, neglect of duty, and insubordination based on the teacher’s alleged use of a school computer to access and view pornographic and, or, inappropriate materials.

The hearing officer found that the DOE had failed to demonstrate that the teacher was guilty of the specifications charging him with viewing and downloading pornographic photographs, but held that he was guilty of specifications charging him with downloading and viewing two “inappropriate” photographs. 

In consideration of the teachers 15-year tenure without any prior discipline action having be taken against him, the penalty imposed by the hearing officer was "suspension without pay for the remainder of the school year, or 90 days, whichever is longer.” 

In addition, the hearing officer condition the teacher's return to work upon the teacher's “submitting a written assessment from a licensed therapist to the Department’s Office of Legal Services indicating that therapist “has read this Opinion and Award, has evaluated the Respondent, and that he or she concludes that the [teacher] is not addicted to Internet pornography and that his viewing of Internet pornography, as described herein, will not adversely affect his ability to teach and will not place students at risk.”

The teacher subsequently underwent a psychological examination conducted by a licensed therapist. The therapist’s report was provided to the DOE but Legal Services advised a representative of the Teachers’ Union that the therapist's assessment “does not sufficiently comply with the arbitrator’s directive.”

The teacher then filed a motion seeking a court order directing DOE to return him to his position and submitted the therapist's report to the court for its in-camera inspection.*

Upon review of the therapist's assessment, Judge Madden ruled that “it does not satisfy” the hearing officer’s directive, which required that, following an evaluation of the teacher, the therapist conclude “that [teacher] is not addicted to Internet pornography and that his viewing of Internet pornography will not adversely affect his ability to teach and will not place students at risk.”

The court pointed out that its ruling was supported by the therapist's acknowledgment in his report that he could not determine whether if the teacher was addicted to pornography, characterizing such determination as “nearly impossible,” and that he was only able to state that there “is no evidence that Campbell has an Internet addiction.”

Accordingly, said Judge Madden, a condition required by the Award relevant to the teacher’s reinstatement had not been met and denied the motion without prejudice to the teacher “seeking a further psychological assessment consistent with the Award.”

* In the context of this decision it appears that the term is used to mean "the judge takes a private look at the therapist's report." The term is more typically used to describe the process whereby a judge or hearing officer reviews evidence or documents  in private to determine whether sthe evidence or document is admissible.

Discontinuing a disability retirement allowance

Discontinuing a disability retirement allowance

Inquiry from a reader

From time to time a reader will submit a question to the editor of NYPPL. One query recently submitted concerned the authority of the New York State Employees’ Retirement System to discontinue an individual’s disability retirement allowance once such an allowance has been approved for the individual by the System.

The controlling laws, rules and regulations for both the New York Employees’ Retirement System and the New York State Policemen's and Firemen's Retirement System provide for the discontinuation of an individual’s disability retirement allowance under certain circumstances.

With respect to the New York Employees’ Retirement System, subdivision a of §102 of the Retirement and Social Security Law provides, in relevant part, as follows:

Subdivision a. Once each year following the retirement of a member on a disability allowance, the comptroller may, and, upon the beneficiary's application, shall require such disability beneficiary to undergo a medical examination.

If the individual refuses to submit to a medical examination required by the Comptroller, the pension portion of the individual’s retirement allowance, including the “pension-providing-for-increased-take-home-pay,” is to be discontinued. Should the individual continuously refuse to submit to such a medical examination for twelve months, the individual forfeits his or her  pension benefit.

It should be noted that case law suggests that once a pension benefit is forfeited it cannot be reinstated even if the individual subsequently satisfies the condition or requirement that resulted in such forfeiture.

Further, subdivision b of §102 provides, in relevant part, that “The pension, including the pension-providing-for-increased-take- home-pay, of a disability beneficiary shall be reduced in the event that any such disability beneficiary is engaged in a gainful occupation paying more than the difference between his [or her] retirement allowance, as it would be without optional modification and if not reduced by the actuarial equivalent of any outstanding loan and if not increased by the actuarial equivalent of any additional contributions, and his [or her] final salary.” The adjustment is made so that the individual’s annuity and the amount so earnable by the individual is equal the individual’s final salary. If the individual’s earning capacity thereafter changes, the amount of the pension payable may be further adjusted.

In addition, subdivision c of §102, in pertinent part, provides that “In the event that the comptroller shall determine that a disability beneficiary is able to engage in a gainful occupation,” if the individual “so requires” the Comptroller is to certify the name of the individual to the State Civil Service Department or appropriate municipal civil service commission.

The State Civil Service Department or such municipal commission is to then place the individual’s name, “as a preferred eligible,” on the appropriate eligible lists prepared by it for positions for which such individual is qualified and at a salary grade not exceeding that from which he or she was last retired. Adjustments to the individual’s pension benefit will be made so that his or her total compensation shall not exceed his or her final salary. Further, the individual is not eligible for membership in the retirement system as long as he or she receives any pension, including the pension providing for increased take home pay.

Finally, in the event that a “disability beneficiary” is restored to active service of an employer at a salary equal to or in excess of his or her final salary, his or her retirement allowance is discontinued in its entirety [see RSSL §102.d].

With respect to members of the New York State Policemen's and Firemen's Retirement System receiving disability retirement benefits, §402 of the Retirement and Social Security Law tracks the provisions of §102 of the Retirement and Social Security Law including a provision providing that “… a retiree of any New York state police or fire retirement system on a disability allowance who returns to gainful employment as an elected public official shall continue to receive the full amount of his or her retirement allowance, including the pension-providing-for-increased-take-home-pay” [See RSSL §402.f-1].

The requirements of these several provisions of law are reflected in Parts 336 and 337 of the Rules of the State Comptroller [2 NYCRR 336 and 2 NYCRR 337] and these Parts are set out below:

PART 336. DISABILITY RETIREMENT FOR MEMBERS OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM UNDER ARTICLE 14 OF THE RETIREMENT AND SOCIAL SECURITY LAW

[Current through February 28, 2011]

Section 336.5. Recovery of disability beneficiaries.

(a) The Comptroller may, once each year following the retirement of a member on a disability allowance, and upon the beneficiary's application shall, require such disability beneficiary to undergo a medical examination. No such examination may be required until one year following the final determination granting disability retirement. Such examination shall be made at a place mutually agreed upon by the Comptroller and such beneficiary. In the event that any such disability beneficiary shall refuse to submit to a medical examination, the retirement allowance shall be discontinued until the member submits to a medical examination. If such refusal shall continue for one year, all pension rights shall be forfeited.

(b) Following such examination, or examinations, the Comptroller shall render a determination based upon the report of the medical board. Where the Comptroller determines that a beneficiary who has retired from a competitive class position is no longer incapacitated for the performance of gainful employment, the Comptroller shall certify to the applicable civil service department or commission, that the beneficiary is a preferred eligible to be placed upon the appropriate eligible list or lists, if any. Disability payments shall continue until such time as the beneficiary is first offered a position in public service at a salary grade equal to or exceeding that of the position from which the beneficiary had retired.

(c) In the event that a beneficiary had not retired from a competitive class position, or in the event that there exists no eligible list which encompasses the competitive class position from which he or she had retired, disability payments shall cease one calendar year from the date of the Comptroller's redetermination, and the beneficiary shall, if he or she had been vested at the time of retirement, be restored to membership in the New York State Employee's Retirement System.

2 NYCRR 336.6 provides as follows:

(a) The retirement allowance of a disability beneficiary shall be reduced in the event that any such disability beneficiary is employed in an occupation paying more than the difference between his retirement allowance, as it would be without optional modification, and the final salary. The retirement allowance shall be adjusted to a sum which, when added to the amount so earnable, shall equal the final salary. If the earnings subsequently change, the retirement allowance shall be adjusted so that the sum of retirement allowance when added to the amounts earned shall not exceed his final salary. The reduction shall be from the amount that the allowance would have been without optional modification. The retirement allowance of a disability beneficiary shall not be reduced after he or she has attained the applicable mandatory retirement age, or shall have attained the age and the date such beneficiary would have been eligible for service retirement under applicable law had he or she remained in continuous service from the date of retirement. For the purposes of this section, applicable law shall mean the plan and/or provision under which the member was enrolled on the date the disability retirement became effective.

(b) In the event that a disability beneficiary is restored to active service of an employer, at a salary equal to or in excess of his final salary, his retirement allowance shall cease. Thereafter, such person shall contribute to the retirement system in the same manner and at the same rate that he paid prior to his disability retirement. The total service which was credited at the time of  such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned by him subsequent to his last restoration to membership will be credited.

(c) In the event that a disability beneficiary is restored to active public service at a salary less than his final salary but equal to or in excess of the current minimum salary for the position from which he was last retired for disability, such person, if he or she so elects, shall again become a member of the retirement system and the retirement allowance shall cease. If such an election is filed with the Comptroller, such individual shall contribute to the retirement system in the same manner and at the same rate as was paid prior to disability retirement. The total service which  was credited at the time of such retirement shall be credited to the restored individual. Upon his subsequent retirement, additional service earned subsequent to the last restoration to membership will be credited.

PART 337. DISABILITY RETIREMENT FOR MEMBERS OF THE NEW YORK STATE AND LOCAL EMPLOYEES' RETIREMENT SYSTEM UNDER ARTICLE 15 OF THE RETIREMENT AND SOCIAL SECURITY LAW

[Current through February 28, 2011]

Section 337.5. Recovery of disability beneficiaries.

(a) The Comptroller may, once each year following the retirement of a member on a disability allowance, and upon the beneficiary's application shall require such disability beneficiary to undergo a medical examination. No examination upon a beneficiary's application may be required until one year following the final determination granting disability retirement. Such examination shall be made at a place mutually agreed upon by the Comptroller and such beneficiary. In the event that any such disability beneficiary shall refuse to submit to a medical examination, the retirement allowance shall be discontinued until the member submits to a medical examination. If such refusal shall continue for one year, all pension rights shall be forfeited. The following indicia of a disability beneficiary's ability to return to the duties of the position from which such individual retired on account of disability, and any other reasonable indicia, shall be considered in determining whether it is appropriate to require the medical examination of a disability beneficiary (who has not requested such medical examination) for the purposes of this Part:

(1) medical evidence or records submitted to the Retirement System that indicates that the disability beneficiary may be able to perform the duties of the former position;

(2) videotape, photographs or other documentation or evidence submitted to the Retirement System which indicates that the disability beneficiary may be able to perform the duties of the former position;

(3) a determination by the Social Security Agency, Workers' Compensation Board or similar entity which indicates that the disability beneficiary may be able to perform the duties of the former position;

(4) documentation with respect to the disability beneficiary's earnings in a position or positions which may reasonably be construed as indicating that the disability beneficiary may be able to perform the duties of the former position.

(b) Following such examination, or examinations, the Comptroller shall render a determination based upon the report of the medical board. Where the Comptroller determines that a beneficiary who had retired from a competitive class position is no longer incapacitated for the performance of gainful employment, the Comptroller shall certify to the applicable civil service department or commission, that the beneficiary is a preferred eligible to be placed upon the appropriate eligible list or lists, if any exist. Disability payments shall continue until such time as the beneficiary is first offered a position in public service at a salary grade equal to or exceeding that of the position from which the beneficiary had retired.

(c) In the event that a beneficiary had not retired from a competitive class position, or in the event that there exists no eligible list which encompasses the competitive class position from which he or she had retired, disability payments shall cease one calendar year from the date of the Comptroller's redetermination, and the beneficiary shall, if he or she had been vested at the time of retirement, be restored to membership in the New York State Employees' Retirement System.

Section 337.6 provides as follows:

(a) The retirement allowance of a disability beneficiary shall be reduced in the event that any such disability beneficiary is employed in an occupation paying more than the difference between his retirement allowance, as it would be without optional modification, and the final salary. The retirement allowance shall be adjusted to a sum which, when added to the amount so earnable, shall equal the final salary. If the earnings subsequently change, the retirement allowance shall be adjusted so that the sum of retirement allowance when added to the amounts earned shall not exceed his final salary. The reduction shall be from the amount that the allowance would have been without optional modification. The retirement allowance of a disability beneficiary shall not be reduced after he or she has attained the applicable mandatory retirement age, or shall have attained the age and the date such beneficiary would have been eligible for service retirement under applicable law had he or she remained in continuous service from the date of retirement. For the purposes of this section, applicable law shall mean the plan and/or provision under which the member was enrolled on the date the disability retirement became effective.

(b) In the event that a disability beneficiary is restored to active service of an employer, at a salary equal to or in excess of his final salary, his retirement allowance shall cease. Thereafter, such person shall contribute to the retirement system in the same manner as and at the same rate that he paid prior to his disability retirement. The total service which was credited at the time of  such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned by him subsequent to his last restoration to membership will be credited.

(c) In the event that a disability beneficiary is restored to active public service at a salary less than his final salary but equal to or in excess of the current minimum salary for the position from which he was last retired for disability, such person, if he or she so elects, shall again become a member of the retirement system and the retirement allowance shall cease. If such an election is filed with the Comptroller, such individual shall contribute to the retirement system in the same manner and at the same rate as was paid prior to disability retirement. The total service which  was credited at the time of such retirement shall be credited to the restored individual. Upon subsequent retirement, additional service earned subsequent to the last restoration to membership will be credited.