June 15, 1998

Dear Human Resource Professionals, Managers, and Employees:

The subject of this newsletter is free speech. The constitutional right to free speech is one of the cherished rights within this country, but like all constitutional rights, it is not absolute. Governments infringe upon those rights where there is an overriding governmental interest related to a legitimate governmental goal. We infringe upon free speech via the political activity restrictions of the Constitution, and do so successfully because of the overriding governmental interest in avoiding the fact and appearance of alignment of government employees with a particular candidate, party, or faction. Governments may also infringe upon the right of free speech exercised in the workplace under certain conditions. That speech and those conditions are the subject of this newsletter.

There is a great deal of jurisprudence in both state and federal courts on the issue of the exercise of free speech by a governmental employee, but before discussing those cases, I want to call your attention to a Civil Service Commission decision that is not directly on that point, but does recognize a principle that will help us in resolving this issue. The decision dealt with a clerical employee employed in a human resources department. She was courteous to those who approached her, but demonstrated an unwillingness to perform as an integral part of that office. On two separate occasions she could have solved the problem presented to her by two separate professional employees seeking a pay check by simply obtaining a personnel file that was on the desk of her absent supervisor and then completing very basic paperwork that was part of her responsibility. Instead, she politely told each employee that she could not help because the file was on her supervisor's desk. A more senior supervisor obtained the file in each case and performed the simple function resulting in timely receipt of pay checks.

In another instance the employee was approached by a co-employee who was embarked on the task of gathering information in order to achieve a certain goal and who approached the appellant in an attempt to locate a certain file. The response of the appellant was not that she would help find the file, but that achieving the particular goal was not part of her responsibility. In the final incident, the appellant gave polite and correct answers to a senior manager, but those polite and correct answers addressed the problem only very obliquely. The appellant was possessed of information that would have solved the problem directly, but did not share it with the senior manager.

The Civil Service Commission upheld a five day suspension and stated that:

"It appears to us that the appellant has demonstrated an unwillingness to seek to become a cooperative, willing and integral part of the functioning of the human resources department. It further appears to us that it is a very reasonable demand of the appointing authority that its employees demonstrate such willingness. The appointing authority has demonstrated its position by the establishment of a program which seeks to teach just this sort of attitude".

This opinion bears Docket Nos. 10733 and 10896 (consolidated). It is dated April 25, 1997. Keep this decision in the back of your mind as we consider the state and federal cases below.

It sometimes occurs in the workplace or in regard to an employee that the employee's speech has a negative affect upon the relationship between the employee and the supervisor, and/or between the employee and co-employees. That deleterious affect adversely impacts the efficiency of the agency or work unit. The speech, however, may be protected such that the employee may not be punished for the exercise of such speech. State and federal jurisprudence gives us guidelines on determining whether the speech is protected.

In order to be protected, the speech of the employee must be on a matter of public concern as opposed to a private grievance related to work at the workplace. There is no good definition of "public concern", but in seeking to determine whether the subject is one of public concern, the courts seek to discern the primary motivation of the speaker. That is, they ask whether the speaker's interest is as an employee or a citizen generally.

If it is determined that the speech is on a matter of public concern, the courts then engage in a balancing test to determine whether the employer's interest in maintaining discipline within the workplace and harmony among co-workers outweighs the right of the employee to speak on these matters. In both the public concern test and the balancing test, the time, manner, and place of the speech is important. The application of these tests to a given state of facts is not a technical matter, but a common sense matter. Some examples will demonstrate.

In one case, a probationary clerical employee stated to a co-worker at the work place that she hoped that the next attempt on the life of the President of the United States would be successful. Her governmental employer was a local constable who was offended by this position, and who terminated her. The Supreme Court recognized that while the worker could have been discharged for no reason at all, she could not be discharged for the reason of exercising her constitutional right to free speech. In applying the above tests, the subject was of public concern, did not address any of the employee's interests as an employee, and, as noted by the court, there was no showing that discipline or harmony among co-workers was adversely affected. This case is Rankin vs. McPherson, 107 S. Ct. 2891 (1987).

Another example is of a school teacher writing a letter to the editor of a newspaper regarding the proposed use of a pending tax increase by the school board. This school teacher was opposed to the tax increase because the proposed use of the money by the school board did not seem proper to her. The court concluded that the subject of the speech did not relate to the school teacher's interest as an employee, but as a person concerned about education, generally. It was certainly a matter of public concern. The court noted that while the school board might be angry with the school teacher for not supporting the tax increase, there was no showing of any adverse impact on discipline or harmony at the workplace. That is, there was no showing that the employee adversely affected her relationship with her principal or with other school teachers. The court concluded that this speech was protected. Pickering vs. Board of Education, 88 S. Ct. 1731 (1968).

In a similar vain, however, an assistant city attorney in the unclassified civil service of the City of New Orleans, publicly opposed a tax issue supported by the mayor who had employed him. While the tax issue was a matter of public concern, the court concluded that the mayor had a right to expect loyalty from one in the position of Assistant City Attorney as this position was involved in policy making. Additionally, the court found that the Assistant City Attorney had an obligation to display such loyalty to that mayor, and that public opposition to the mayor's tax increase was found to adversely impact the discipline issue above, i.e. demonstrated respect for superiors. These legitimate interests were found to outweigh the right of the assistant city attorney to speak on public issues. This speech was found not to be protected. The case is Finkelstein vs. Barthelemy, 565 So.2d 1098 (La. App 4th Cir. 1990).

As you can see, like most matters in the law each case must be decided on its own facts. Similar to the above analysis, but adding the time, manner, and place part of the test is Davis vs. Ector County, Tex, 40 F. 3rd 777 (C.A. 5th, 1994). In that case an employee of a district attorney was told not to involve himself in his wife's sexual harassment claim against the sheriff in the same county. In violation of such directive, however, this employee sent a letter to the court that was considering the claim and which detailed his wife's assertions and asserted that the sheriff's office was attempting to cover up sexual harassment occurring within the office. The court in this case concluded that the public's concern about public officials covering up sexual harassment outweighed the disruption of the relationship between the district attorney and the subordinate employee. This is the public concern versus workplace impact test discussed above. The time, manner, and place of the speech was important as the employee had directed the speech to the official who had the power to do something about the problem he was addressing. The resolution of the issue might have been much more difficult if the employee had addressed a letter to the editor. The resolution of the issue then would require determining what the motivation of the speaker was, i.e. to attempt to solve the problem or to pursue the private interest of holding up to public ridicule one who had injured his wife.

The time, manner, and place test is also demonstrated by the extreme example of Normand vs. City of Baton Rouge Police Department, 572 So.2d 1123 (La. App. 1st Cir. 1990). In that case a city policeman was offended by what he saw to be favoritism in the hiring, promotion, and assignment processes within the police department. It is not known what else he may have done, but he was fired for placing on bulletin boards and distributing among the workforce "rat-o-grams". These were cartoons which depicted rats engaged in various activities and speech, some of which was definitely off-color, and the subject of which was these concerns. While the issue might be of public concern, the city policeman's concerns as an employee outweighed any of those concerns he might have as a citizen as demonstrated by the time, manner, and place of the speech. The speech was found not to be protected.

This private interest outweighing public concern is demonstrated in another case. In this case cafeteria workers alleged that they were required to work after hours without pay in support of school board functions. They complained to the superintendent of schools about the violation of the Fair Labor Standards Act, and when they were later terminated for a variety of reasons, asserted in part that they were fired for having made this complaint to the superintendent. The District Court allowed that question to be submitted to the jury which found for the cafeteria workers, but the Court of Appeal reversed the District Court finding that such question should never have been submitted to the jury. The Court of Appeal held that while there was public concern about the violation by the school district of the Fair Labor Standards Act, the personal interests of the employees as they related to interference with family life, the hiring of baby sitters, and travel at night outweighed their interests as citizens. It should be pointed out here that this case does not stand for the proposition that it is okay to terminate cafeteria workers who complain to a superintendent about the violation of federal law, as there were a number of other issues involved in this case. This case does serve as a good example of the interests as a citizen versus interests as an employee. This case is Knowlton vs. Greenwood Independent School District, 957 F. So.2d 1172 (5th Cir. 1992).

In this next case, while the employee did not have any identified interests as an employee in the subject of his speech, but might certainly have had such interest as a citizen, the employee's position was killed by the time, manner, and place of the speech. It occurred in Lake Charles. A city councilman was arrested for possession of narcotics, and a city police officer was of the apparent opinion that the councilman had been arrested in retaliation for opposing the police chief on a particular issue. This is certainly a matter of public concern. The police officer, however, did not contact any officials to look into the matter, but made comments regarding his opinion in conversation with another police officer in the presence of three inmates trustees, and, then later, to a sheriff's deputy. The time, manner, and place of the speech was said to be disruptive of the efficiency and integrity of the police department. The speech was not protected. Dix vs. City of Lake Charles, 569 So.2d 1112 (La. App 3rd Cir. 1990).

A case in which a different type of speech was at issue is U.S. Dept. of Justice, I.N.S., Border Patrol, El Paso, Tex. vs. Federal Labor Relations Authority, 955 F. So.2d 998 (C.A.S. 5th Cir., 1992). There uniform border patrol agents were wearing pins on their uniforms in support of a union. The Border Patrol required that the pins be removed. The court concluded that the wearing of such a pin was a form of speech and assumed without deciding that it was speech on a matter of public concern, but further concluded that there was a strong interest in requiring uniformity in dress among this police force. The adverse impact upon the discipline required in such a police force outweighed the right to speak via the wearing of the pins. The court noted that while the union argued that the wearing of the pins promoted "solidarity", the solidarity was against the policies and practices of the employer such that factionalism and a lack of discipline would be fostered among this workforce. The speech was deemed not protected.

Before closing, there is another Civil Service Commission case that I want to discuss with you. It is the Appeal of Roubique, Docket No. 7935. It was affirmed by the Court of Appeal in a decision not for publication. That means the decision cannot be cited before a court. See Roubique vs. Louisiana State University, 599 So.2d 527 (La. App. 1st Cir. 1992), writ denied, 605 So.2d 1145 (La. 1992). The case was decided by a referee with application for review denied. In the case, an LSU police officer was concerned about the prosecution of a case by the District Attorney in which he had been involved. The police officer had arrested the subject defendant for DWI. There was a policy at LSU which required police officers to "refrain from sending any written correspondence regarding LSU department business, and directed to persons outside of the LSU Police Department, without approval of the Chief of Police". The police officer violated this policy by sending a letter directly to the District Attorney with a copy to Mothers Against Drunk Driving. The Referee affirmed the discipline against the employee concluding that no free speech issue was presented as the employee was at fault for failing to follow the chain of command prior to sending the letter outside of the chain of command. The Referee noted that a free speech issue might present itself if the police officer had followed the chain of command and the Police Chief had refused permission to send the letter. The Referee noted that the letter was written from the point of view of a frustrated police officer, and not that of a private citizen.

Please apply the tests discussed above to the facts of this case for your own benefit. I am not going to discuss the application of that test, but share the case with you only to point out my concern about the policy. As discussed at the beginning of this newsletter, governments may infringe upon the constitutional rights of employees for overriding governmental interests. Such infringements must be as narrowly drawn as possible in order to achieve the governmental goal. Before establishing such a requirement for your employees the goal that is sought to be achieved by such requirement should be specifically identified. It seems to me that there is a certain chilling effect on the exercise of speech by such requirement. Just "wanting to know" before a letter to the editor appears, for example, does not seem to me to be a justifiable goal. This is certainly a debatable issue, and I bring it up here only to urge you, again, to ask yourselves hard questions before effecting such a requirement.

In conclusion, what the Civil Service Commission told us in the case involving the polite but uncooperative clerical employee is that an employee's performance is not necessarily measured by tangible, objective factors, but by the intangible willingness to become a cooperative, functioning part of the whole. The Commission has told us that an appointing authority may demand such behavior on the part of its employees. The employee who constantly argues with the supervisor about work assignments in front of co-employees, or who is always arguing with co-employees, or the employee who is so rude when addressed that no one wants to speak to that employee, or the employee who files one frivolous grievance after another may very well be demonstrating like the clerical employee above that the employee is not willing to become a cooperative, functioning part of the organization. Such an employee may not hide behind the claim of free speech when those actions adversely impact the relationship between himself and his supervisor, interfere with the performance of his own work, or destroy the harmony between himself and co-workers. If it is occurring within your workplace, address the problem. Use the principles discussed above and effect a plan of action to deal with the problem. This can be a very difficult issue to deal with because the right of free speech is a cherished and important right, but neither yourself, your subordinate supervisors, the employees of your department, nor the taxpayers of this state should have to tolerate disruptive behavior in the workplace under the guise of free speech.

Sincerely,

Robert R. Boland, Jr.

General Counsel