Know Your Rights
Right to Associate Abridged

By JAMES A. BROWN

My two most recent columns examined when a public employer may discipline an employee for conduct which might appear beyond the reach of disciplinary action. The November column addressed off-duty conduct in general; last month I considered when use of an office computer for personal reasons is sanctionable.

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 .

The December column about computer use cautioned that the Constitutional prohibition against unlawful "searches and seizures" does not typically protect you when evidence is obtained from your workplace computer. Today's column highlights Piscotanno v. Murphy, a court decision which underscores that another Constitutional protection, namely the First Amendment "right to associate," is also of limited utility to public employees facing discipline.

Gang Activity

Piscotanno was decided last December by the Second Circuit Court of Appeals, the Federal appeals court which includes New York, Connecticut and Vermont within its jurisdiction. The case involves four Correction Officers, three of whom were terminated because of their association with the Outlaws Motorcycle Club. The fourth officer was ordered to attend counseling.

The evidence in Piscotanno revealed that some members of the Outlaws Motorcycle Club were involved in narcotic production and distribution. Federal investigations also showed that key members and officers of the Outlaws had been convicted of various crimes including those involving bombings, robberies and murders.

In disciplinary proceedings, the Connecticut Department of Correction found the four officers guilty of associating with the Outlaws; some were also found to have made untruthful statements during their investigatory interviews. In sustaining the disciplinary penalties, the Department Commissioner accepted her Deputy's recommendation that the officers' association with the Outlaws "severely jeopardizes the security of the [prison] facilities and protection of the public."

Freedom of Association

Following the discipline, the four Correction Officers commenced their Federal court lawsuit alleging, in part, that the imposed discipline violated their "freedom of association" rights based on the United States Constitution's First Amendment. The district court dismissed the officers' lawsuit and then, on appeal, the Federal appeals court affirmed.

In its decision, the appeals court first recited the well-established principle that a public employee's Constitutional rights in the workplace are more limited than those enjoyed by citizens in general. The court also cited Garcetti, a Supreme Court decision which holds that public employees receive no First Amendment protection for activity deemed a part of their "official duties," a topic I addressed in "Restricting Free Speech" (7/21/06).

In Piscotanno, the Correction Officers were clearly involved in off-duty conduct rather than any "official duties." If the Correction Officers could demonstrate that their "right to associate" claim involved a matter of "public concern," they would satisfy the threshold legal test, thereby entitling them to argue that their disciplinary penalties should be overturned.

Two ways exist for a public employee to demonstrate "public concern" when seeking protection under the First Amendment's "right to associate." A public employee may demonstrate "public concern" if: (a) the employee associates with an organization which advocates public policy positions; or (b) the employee's association with an organization suggests approval or endorsement of that organization whose nature is a matter of public concern.

Saw Threat to Society

The Correction Officers in Piscotanno were deemed to satisfy the "public concern" test because their membership, and expressed views, suggested an endorsement of an organization whose nature (based on its reported involvement in violent criminal activity) was of public concern. Having determined that the threshold test was satisfied, the court then applied the usual balancing test for such workplace Constitutional claims and ultimately ruled in favor of the Connecticut Department of Correction. In short, the court found much evidence concerning threats to safety, potential conflicts of interest and interference with the integrity of prison operations. In the end, the Department's need for an efficient operation outweighed any possible Constitutional protection enjoyed by the Correction Officers.

Again, we are reminded that a public employee may be terminated for off-duty conduct - in Piscotanno, based on his association with an organization. While the outcome in Piscotanno may simply reflect an extreme set of facts, we still are confronted by the reality that a public employee's claim to Constitutional rights in the workplace is very much limited.