FIRST AMENDMENT ISSUES IN PUBLIC EMPLOYMENT

By: Paul F. Millus

The Supreme Court has long recognized that “[a] government employee does not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of his or her employment.”^[i] Conversely, a government employer may impose certain restraints on the speech of its employees that would be unconstitutional if applied to the general public. What is speech on a matter of public concern? It is any speech which can “be fairly considered as related to any matter of political, social or other concern to the community.”^[ii] However, even the Supreme Court acknowledges that “the boundaries of the public concern test are not well-defined.”^[iii]

To determine whether speech relates to a matter of public concern, courts explore the motive of the speaker, the context in which the speech was made and the content of the speech.^[iv] While addressing motive, courts "attempt to determine whether the speech was calculated to redress personal grievances or whether it had a broader public purpose."^[v] The mere fact that a government employee takes a personal interest in the subject matter of the speech at issue does not remove it from the protection of the First Amendment. "Mixed motivations” are involved in most actions an employee performs every day and courts will not hold plaintiffs to impossible standards of “purity of thought and speech.”^[vi] Thus, while the speaker's motive is often a relevant part of the context of the speech, it is certainly not dispositive.

As for the context of an employee’s statements, "[t]he key inquiry is whether the comment was made by plaintiff in his role as a disgruntled employee or as a private citizen."^[vii] For example, in Ezekwo v. New York City Health & Hosps. Corp., the plaintiff, a medical doctor, authored a series of verbal complaints, letters and memoranda to the director of the medical residency program. The complaints concerned areas of personal dissatisfaction including, inter alia, the lack of personal attention she received from the attending physicians, the lack of proper hospital maintenance and the director's poor management. When the plaintiff was denied the position of Chief Resident, she brought suit for First Amendment retaliation. The Second Circuit held that

[h]er complaints were personal in nature and generally related to her own situation within the ... residency program. Our review of her prolific writings convinces us that Ezekwo was not on a mission to protect the public welfare. Rather, her primary aim was to protect her own reputation and individual development as a doctor.... To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark‑and certainly every criticism directed at a public official‑would plant the seed of a constitutional case.... [T]he First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.”^[viii]

One can see from this case how the concepts of motive and context analysis may overlap.

Of the three factors, analyzing the content or subject matter of the speech is routinely considered to be the most important factor. As a general rule, the greater the degree of public concern (i.e. public safety, public health, the public fisc or civil rights in general) raised by the issues, the greater the likelihood that the court will balance the competing interests in favor of constitutional protection.^[ix]

ADVERSE EMPLOYMENT ACTION AND CAUSATION

Primarily, the issue of whether a public employee has a right to exercise her first amendment rights arises in the context of a retaliation claim. In order to establish a viable claim, the employee must establish that she spoke out on a matter of public concern, suffered an adverse employment action and that the protected speech was a substantial or motivating factor in the decision to take action against the employee. That is to say, the adverse employment action would not have been taken absent the employee's protected speech.^[x]

As for what constitutes an adverse employment action in this context, the Second Circuit has held that "[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action."^[xi] Adverse employment actions do not only include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand.^[xii] Indeed, adverse employment actions can be far less tangible. Lesser actions may also be considered adverse employment actions, including negative evaluation letters, expressed accusations of lying, assignment of less desirable duties or reduction of class preparation periods for teachers.^[xiii] In sum, when evaluating an action claimed to be adverse one can simply ask, does the effect of the action taken by the employer meaningfully affect this particular employee’s employment, taking into account how other employees are treated and their reasonable expectations in the workplace?

In regard to causation, whether the speech was a “motivating or substantial” factor is obviously a highly fact-dependant inquiry. For example, the timing between the speech and the alleged adverse act may help discern motive, however, the time period between the exercise of the First Amendment right and the adverse employment action is not subject to a set period. Causation can also be established by circumstantial evidence, for example, by showing that the protected activity was followed by adverse treatment in employment. However, there is no bright line test to define “the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship...."^[xiv] A plaintiff need not establish causation solely through temporal proximity. Instead, he can offer evidence of retaliatory animus.^[xv] It is sufficient to present evidence of retaliatory animus to create a triable question of fact where a supervisor has told an employee “to learn to keep his mouth shut” in connection with that employee participating in legal proceeding commenced by a fellow employee.^[xvi]

Even if an employee establishes that he was speaking about a matter of public concern, there was an adverse employment action and the speech was a substantial or motivating factor for the employment action, the municipal defendant still has the opportunity to escape liability by showing, through a preponderance of evidence, that it would have taken the same adverse employment action even in the absence of the protected conduct.^[xvii]

THE BALANCING TESTS

Even after setting forth a prima facie case, a public employee's freedom of speech is not absolute. The employer has additional defenses as outlined in the case of Pickering v. Board of Education and its progeny.^[xviii] In Pickering, the Supreme Court held that Courts may determine the extent to which the government may permissibly regulate the speech of its employees by balancing the interest of the employee "as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." The Pickering test involves a two-step inquiry: first, a court must determine whether the speech which led to an employee’s discipline relates to a matter of public concern; and, second, if so, the balance between free speech concerns is weighed against efficient public service to ascertain to which the scale tips. The first part of the inquiry is commonly referred to as the public concern test and it serves a gatekeeping function for employee speech claims in federal courts.

The First Amendment protects an employee only when he is speaking “as a citizen upon matters of public concern” as opposed to when he speaks on matters of personal concern. If the speech that led to an employee’s discipline was on a personal matter–for example, a complaint about a minor change in an employee’s duties–the government is granted wide latitude to deal with the employee without any special burden of justification. When it is shown that the employee’s speech was on a matter of public concern, the second step, or balancing portion of the test, comes into play. Under it, the government has the burden of showing that, despite First Amendment rights, the employee’s speech so threatens the government’s effective operation that discipline of the employee is justified.

The Supreme Court further explained the Pickering balancing test in the case of Connick v. Meyers so that the balancing test would only be performed after it was determined that the speech at issue was a matter of “public concern.” It also decreased the degree of claimed disruption that must be demonstrated in order for a government employer to regulate speech. In Connick, after a decision in favor of the employee by the District Court, which was affirmed by the Fifth Circuit, the Supreme Court articulated a distinction between speech upon matters "inherently of public concern" and speech which gains public concern status upon consideration of the circumstances surrounding the making of the statement. Applying Pickering, the Court held that, regardless of the content of the speech, the responsibilities of the employee or the context in which the speech was made, an employer is never required "to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action."^[xix]

The Connick decision is the foundation for a number of decisions where employers can find refuge even in the face of taking action against an employee who has spoken out on a matter of public concern. In Waters v. Churchill,^[xx] a four‑justice plurality held that the government could fire an employee for disruptive speech based on its reasonable belief of what the employee said, regardless of what was actually said. That decision in Churchill resulted in the remanding to the Second Circuit of an earlier decision in Jeffries v. Harleston and the reversal of its earlier decision in favor of the employee.^[xxi] In Jeffries it was held that a government employer may take an adverse employment action against a public employee for speech on matters of public concern if the employer took the adverse employment action, not in retaliation for the employee's speech, but because of the potential for disruption.

Thus the State need only show a "likely interference" with its operations and "not an actual disruption" to justify the actions. Furthermore "substantial weight” is to be given to the employer’s reasonable predictions of disruption caused by an employee’s speech. In fact, a government employer can prevail if it can demonstrate that it reasonably believed that the speech would potentially interfere with or disrupt its activities.^[xxii] The Second Circuit has also determined, in accord with the Fourth, Sixth and Seventh Circuit Courts of Appeal, that the Connick requirement that the speech be a matter of public concern at the outset applies equally to a public employee bringing a First Amendment claim based on freedom of association and not mere speech.^[xxiii]

CHILLED SPEECH

Government action which falls short of a direct prohibition on speech may also violate the First Amendment by chilling the free exercise of speech.^[xxiv]   “However, not every assertion of a chilling effect will be considered a judicially cognizable First Amendment violation.”^[xxv]   Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm and abstract injury is not enough.^[xxvi]   The plaintiff must show that he "has sustained or is immediately in danger of sustaining some direct injury" as a result of the challenged official conduct and the injury or threat of injury must be both "real and immediate," not "conjectural" or "hypothetical."  General indirect and conclusory allegations are not sufficient.^[xxvii]   He must proffer some objective evidence to substantiate his claim that the challenged conduct prevented him from engaging in protected activity. ^[xxviii]   Accordingly, if the plaintiff continues to engage in the protected speech that allegedly motivated unconstitutional retaliation, then he would fail to establish an actual chilling of the speech.^[xxix]

POLITICAL SPEECH

The First Amendment also restricts the power of government officials to dismiss public employees because of their political affiliation and protects plaintiffs from discharge solely because of their political beliefs.^[xxx] However, political affiliation is a permissible employment criterion for positions involving policymaking and confidential employees. To apply the policymaker/confidential employee exception to the dismissal of a public employee, the government entity must show “that party affiliation is an appropriate requirement for the effective performance of the public office involved.”^[xxxi] The Second Circuit has further held that “political affiliation is an appropriate requirement when there is a rational connection between shared ideology and job performance, a reading which would exempt from [First Amendment] protection most policymaking and confidential employees.”^[xxxii]

Courts have readily found that government attorneys with law enforcement responsibilities occupy policymakers confidential positions.^[xxxiii] Significantly, courts have also held that non‑attorneys fulfilling law enforcement functions are policymaker/confidential employees.^[xxxiv] Even public employees in positions authorized to receive and communicate confidential information are within the policymaker/confidential employee exception.^[xxxv]

In Vezzetti v. Pellegrini, the Second Circuit enumerated several factors which are “useful” in determining whether a government employee is within the exception for policymaker/confidential positions and may be discharged at‑will.^[xxxvi]

These factors include whether the employee (1)is exempt from civil service protection, (2)has some technical competence or expertise, (3)controls others, (4)is authorized to speak in the name of policymakers, (5)is perceived as a policymaker by the public, (6)influences government programs, (7)has contact with elected officials, and (8)is responsive to partisan politics and political leaders.

This is not an exhaustive list of indicators, nor is any one factor or group of them always dispositive. There tends to be a cautious identification of the characteristics of a policymaker/confidential employee as the guidelines “do not lend themselves to easy or automatic application.”^[xxxvii] It is the inherent duties of the position, not the work actually performed by the employee, that are to be considered in weighing the policymaker/confidential employee exception.^[xxxviii] In sum, a single question predominates: whether the employee in question is empowered to act and speak on behalf of a policymaker, especially an elected official. The more attune the employee must be with the thought process and ideology of the employer, the more likely it is that an employee will be deemed a confidential employee.

NEW YORK STATE LAW PROTECTIONS

New York state law protects a public employee engaging in political activities outside the workplace. For example, New York Civil Service Law § 107(1) provides, inter alia, that selection to or removal from an office or employment shall not relate to the employee’s political opinions or affiliations. ^[xxxix] Other activities outside the workplace are similarly protected. Under Labor Law § 201‑d(2)(a), it is unlawful for any employer to adversely effect someone’s employment in connection with that employee’s political activities “outside of working hours, off of the employer's premises and without use of the employer's equipment or other property” ^[xl] 

New York’s Whistleblower Law, Civil Service Law § 75-b provides in pertinent part, that a public employer cannot “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 government body information: (i) regarding a violation of a law, rule or regulation which creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action. ‘Improper governmental action’ means any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties, whether or not such action is within the scope of his employment, and which is in violation of any federal, state or local law, rule or regulation.”

The public Whistleblower Law provides broader protection than New York Labor Law § 740, which applies to private employees. Under § 75‑b, a plaintiff is not required to prove that the violation being reported poses a threat to health or safety or that the violation be "actual.” Accordingly, a reasonable belief that an "improper governmental action" has occurred will satisfy plaintiff’s burden.^[xli] Not only is there protection for those who make such disclosures, but New York state law also requires state employees to do so.^[xlii]

As a conditional precedent to disclosing certain matters, Civil Service Law

§ 75‑b(2)(b) requires that prior to disclosing information to a governmental body, a public employee "shall have made a good faith effort to provide the appointing authority or his or her designee the information to be disclosed and shall provide the appointing authority or designee a reasonable time to take appropriate action." The"appointing authority" is the "officer, commission or body having the power of appointment to subordinate positions."^[xliii] Failure to do so will preclude protection under the statute.^[xliv]

A public employee who learns of a potential violation should act expeditiously as the statute of limitations for a whistleblower claim under Civ. Serv. Law § 75-b(3) is one year. In addition, whistleblower claims cannot be maintained against individual defendants and individuals cannot be held liable under Section 75-b.^[xlv]

Furthermore, I note that the burden of proof is different from the burden in a First Amendment retaliation claim. Under New York law, a whistleblower claim requires that the plaintiff establish that the disciplinary proceeding was based "solely" on the employer's unlawful retaliatory action. ^[xlvi] However, with a free speech/retaliation claim a plaintiff need only establish that the speech in addition to being on a matter of public concern was at least "a substantial or motivating factor" in the employer's adverse employment action.

In conclusion, the protections afforded to public employees in regard to what they say or do in and out of the workplace are many. Yet, the courts routinely recognize the reasonable position that the government’s mission should not be easily and unreasonably interfered with by particularly over zealous employees who feel the need to speak out about perceived wrongdoings, thus establishing a fair balance.

Paul F. Millus is a partner with Snitow Kanfer Holtzer & Millus, LLP in Manhattan. He concentrates his practice in Labor Employment, Commercial Litigation and Defense of Municipalities.