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Free Speech protections for public employees

Free Speech protections for public employees
Fry v McCall, USDC SDNY, 945 F. Supp. 655

In the Fry case, a federal district court judge was asked to determine if a public official?s statements concerning matters alleged to be of ?public concern? served as a shield against his or her removal from the position.

Patricia C. Fry sued State Comptroller Carl McCall complaining that she had been dismissed from her position as Director of the Bureau of Budget Analysis with the Office of the State Deputy Comptroller because she spoke out on a matter of public concern and that her discharge deprived her of her First Amendment right to free speech in violation of 42 USC. Section 1983.

Fry alleged that she had been terminated because she had questioned reports concerning a New York City ?budget crisis? in 1993 and 1994 and that the Comptroller discharged her because she expressed skepticism about the accuracy or integrity of those reports.

The Comptroller, on the other hand, contended that Fry ?had become insubordinate to her supervisor, disruptive at staff meetings, unwilling to cooperate in the preparation of the OSDC reports, and abusive toward a colleague.? In addition, the Comptroller argued that even if he had discharged Fry because of her statements, this ?did not violate her First Amendment rights because the State?s interest in the effective and efficient operations of the [agency] outweighed any free speech rights [Fry] may have had.?

The court said that to win her Section 1983 claim for wrongful termination based on a First Amendment violation, Fry was required to prove by a preponderance of the evidence (a) that the speech at issue was constitutionally protected, and (b) that it was a ?substantial? or ?motivating? factor in the decision to terminate her employment. Judge Koeltl concluded that ?Fry has failed to prove by a preponderance of the evidence that her expressions of concern [regarding the reports] were a ?substantial? or ?motivating? factor in the decision to dismiss her.?

The decision notes that there are a number of relevant factors to be considered in such cases, including [a] the time, manner, and place of the speech; [b] the extent of the disruption caused by the employee?s conduct; [c] the responsibilities of the employee and [d] whether the employee held a policymaking position....? Significantly, the court observed that ?[a] high-ranking policy-making employee does not have, and never has had, a First Amendment right to refuse [her] employer?s directive to promote agency policy.?

In Vezzetti v. Pellearini, 22 F.3d 483, the Second Circuit Court of Appeals, which has jurisdiction over New York State, set out a number of guidelines for determining ?policymaker status.? To resolve the issue, the courts should determine whether the individual:

(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 the 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.

The court said that Fry satisfied all of these eight criteria with respect to the issue of her ?policymaker? status. Under the Pickering balancing test [see Pickering v Board of Education, 391 U.S. 563], said the court, the Comptroller ?justifiably terminated Ms. Fry, a policymaking employee whose behavior not only threatened to become disruptive, but had already become disruptive, in order to preserve the efficiency and effectiveness of the OSDC.?

Having found that Fry ?failed to demonstrate that Comptroller McCall, or indeed any state employee, acting under color of state law, deprived her of her right to free speech in violation of the First Amendment?, dismissed her action on the merits and closed the case.
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Full post as published by New York Public Personnel Law on October 18, 2010 (boomark / email).