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A public employer may discipline an employee for refusing to support employer?s change in its operation

A public employer may discipline an employee for refusing to support employer?s change in its operation
Lewis v Cowen,165 F.3d 154

J. Blaine Lewis, head of Connecticut?s lottery, was fired for refusing to publicly support a change in the lottery?s operations. Lewis was an unclassified employee and served at the pleasure of the Executive Director of the Connecticut Division of Special Revenue and the Gaming Policy Board.

Lewis had national prominence in the public gaming community. He served as President of the National Association of State and Provincial Lotteries, an association of public gaming executives in the United States and Canada, and had been featured on the cover of Public Gaming International, a trade magazine.

Problems began in 1988, when the state awarded a contract to install a statewide computer system for the sale of lottery tickets to General Instrument Corporation (GIC). Lewis opposed this move. After GIC?s system malfunctioned and created a system-wide breakdown of on-line sales, Lewis criticized GIC to the press. The board ordered him and other unit heads to stop all media contact, but this gag order was eventually lifted.

Another change Lewis opposed was increasing the pool of numbers from which the winning Lotto numbers were picked was from 40 to 44. Lewis believed that revenues would decrease and suspected that GIC had recommended the change merely to cover up problems with on-line ticketing.

His superior, the Executive Director, ordered him to present the change to the Board at a public meeting and to cite ?all positives and no negatives.? Lewis balked and was fired by the board one day after it unanimously approved the change.

Lewis sued, contending that his termination constituted a violation of his First Amendment rights. He won a substantial jury verdict in U.S. District Court -- $2 million in compensatory damages and punitive damages plus $380,000 in attorney?s fees.

On appeal, the Second Circuit U.S. Court of Appeals reversed. While ?it is by now well established that public employees do not check all of their First Amendment rights at the door upon accepting public employment,? the court said that Lewis? case involves a different issue: may a public employer discipline an employee for refusing to speak?

Connecticut argued that it was entitled to terminate Lewis pursuant to the standard announced in cases such as Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board of Education, 391 U.S. 563 (1968), and in the alternative, that its decision to terminate Lewis is shielded by a qualified immunity. The Circuit Court applied the so-called Pickering balancing test typically used in considering free-speech cases involving public employees in resolving the issue.

The Pickering test has two elements. The court must first decide whether the speech addresses a matter of public concern. If so, the court then must balance the interests of the employer in providing ?effective and efficient? public services against the employee?s First Amendment right to free expression. The court addressed two key questions:

1. Did Lewis?s refusal to speak to the Board touch on a matter of public concern?; and

2. Did the potential disruptiveness of Lewis?s refusal to speak outweigh his First Amendment-based interest in not speaking?

Reviewing the evidence, the circuit panel concluded that as a matter of law Connecticut?s interest in the effective and efficient operation of its Lottery Division outweighed Lewis?s First Amendment interest in refusing to present the proposed Lotto change before the Board in a positive manner.

State officials testified that Lewis?s speech would ?potentially interfere? with the Division?s operations and that his refusal to promote the proposed change would result in negative publicity and decreased morale, in turn impairing the profitability of the lottery. Concluding that under the circumstances Lewis?s termination was justified, the Court ruled that:

1. The lower court should have dismissed the action on the ground of qualified immunity.

2. The state defendants are immune from liability on Lewis?s state law wrongful discharge claim.

The decision also considered ?the exceptional significance of a government employee?s interest in testifying truthfully before a legislative committee,? referring to Piesco v City of New York, 933 F.2d 1149,. In Piesco, the Second Circuit ?refused to force employees like Dr. Piesco to choose between answering questions honestly and risk being fired on one hand, and committing perjury on the other? holding that there was no evidence that Dr. Piesco?s testimony interfered with government operations in a manner outweighing Dr. Piesco?s strong interest in testifying truthfully.

In contrast, the court said although Lewis had a strong First Amendment interest in testifying truthfully before the Board, it ?did not believe that interest to have been implicated here because Lewis was directed to present the Division?s views, not his own.?
NYPPL

Full post as published by New York Public Personnel Law on November 15, 2010 (boomark / email).