Know Your Rights

Restricting Free Speech

By JAMES A. BROWN

In order to know your rights as a civil servant, it helps to appreciate which rights you enjoy by virtue of your status as a public-sector employee. As you know, the civil service laws specifically protect public employees. These laws are intended, in part, to ensure that appointments and promotions are based on "merit," and they offer some protection if you are fired or laid off.

Public employees may also claim, unlike their counterparts in the private sector, certain limited Constitutional rights in the areas of free speech, equal protection, due process and privacy. These rights attach to you precisely because your employer is the government, which (unlike private industry) is bound by the Bill of Rights.

A Legal Rebuke

This past spring, the United States Supreme Court delivered a blow to civil servants by sharply curbing a public employee's right to claim unlawful retaliation based on First Amendment free speech rights. This troubling decision will also effectively discourage some public employees, fearful of retribution, from disclosing fraud, corruption and other government wrongdoing to the detriment of the general public.

The Supreme Court's decision, Garcetti v. Ceballos, involved a public employee working as a Deputy District Attorney for Los Angeles County. In connection with a criminal trial, Ceballos wrote a memorandum to his supervisors indicating that an affidavit used to justify a search warrant contained inaccuracies and that the case should thus be dismissed.

Thereafter, Ceballos's employer reassigned and transferred him and, according to Ceballos, denied him a promotion. In response, Ceballos filed a lawsuit in Federal court alleging that the District Attorney's office retaliated against him in violation of his First Amendment free speech rights.

When the case reached the Supreme Court, there already existed a body of law pertaining to public employee free speech claims. Previously, the Court would first consider whether the speech was a matter of "public concern." If the answer was yes, protection was not absolute; rather the Court would apply a "balancing" test.

New Standard Set

Under the old balancing test, the Court would consider whether the public employee's speech was too damaging to the government's capacity to conduct public business. In other words, the Court considered the extent to which the employee's speech disrupted or interfered with the efficiency of government operations.

Under the Court's new test, much of the speech which had been protected from retaliation (because it was of public concern and did not interfere with an employer's efficiency of operation) will no longer be covered by the First Amendment. Specifically, statements now made by public employees in the performance of their job duties will not be deemed protected speech. As a result, Ceballos, whose regular job duties included writing such memoranda, was out of luck.

Official Writing Affected

In reaching its decision, the Court drew a distinction between a public employee's speech made as a "citizen" and statements made in one's official capacity. Speech made as a "citizen" (i.e. letter-writing to newspapers; political discourse with coworkers) may still be afforded protection. On the other hand, speech made pursuant to one's official duties cannot insulate an employee from discipline.

Underpinning the Court's decision is the value it placed on a public employer's ability to exercise a "significant degree of control" over its work force in order to efficiently provide public services.

The dissenting Justices found no basis to distinguish between speech made pursuant to a public employee's official duties and speech made by him or her as a "citizen." The dissent pointedly observed that these First Amendment/retaliation cases should not be made to hinge on a job description which could now be broadened to cover virtually all job-related expressions of public concern.

The dissent also questioned the Court's decision to tilt toward managerial discretion and away from protecting employees who "irritate the government" and away from the "value to the public of receiving the opinions and information that a public employee may disclose." In the end, public employees have suffered a significant loss, namely the freedom to comment on matters of public concern in the normal course of their job duties without fear of retaliation.

James A. Brown is a partner in the law firm Brown & Gropper, LLP. He can be reached at (212) 366-4600 and at jabrownlaw@aol.com .