RIGHTS OF PUBLIC EMPLOYEES TO ENGAGE IN POLITICAL ACTIVITIES, AND LIMITATIONS ON PUBLIC EMPLOYEES’ SPEECH AND COMMUNICATIONS
RIGHTS OF PUBLIC
EMPLOYEES TO ENGAGE IN POLITICAL
ACTIVITIES, AND LIMITATIONS ON PUBLIC EMPLOYEES’
SPEECH AND COMMUNICATIONS
RIGHT
TO ENGAGE IN POLITICAL ACTIVITY
Prepared by Workers’
Compensation Attorney M. Travis Payne July 9, 2014
Thanks to enactment of the
“Political Freedoms Act”, which was sponsored by the Professional Fire Fighters
and Paramedics of North Carolina (PFFPNC) in 1991, city and county employees
have the absolute right to engage in political activities and support
candidates for elected office. The
provision for city employees is at General Statue Section 160A-169, and the
provision covering county employees is at Section 153A-99.1 Among other things, the law provides that:
Employees shall not be restricted from affiliating with civic organizations of a partisan or political nature, nor shall employees, while off duty, be restricted from attending political meetings, or advocating and supporting the principles or policies of civic or political organizations, or supporting partisan or nonpartisan candidates of their choice in accordance with the Constitution and laws of the State and the Constitution and laws of the United States of America.
Under this statute, public employee
unions and their members have the right to be active in local political
campaigns for mayor, city council member or county commissioner, as well as for
other elected positions. Unions and
their members also have the right to advocate “the principles or policies of
civic or political organizations”. Since
public employee unions would seem to meet the standard of a “civic or political
organization”, making a presentation to the city council about matters
concerning the union and its members, or participating in a press conference or
interview with the press about such matters, should be protected under this
statute, if such advocacy is carried out in a professional manner. Similarly, advocating to members of the
General Assembly about matters being considered in the Legislature, should also
be protected. However, you must be very
careful that any political activity be done on off duty time. To the extent it is acceptable that employees
from time to time receive personal phone calls, or emails or text messages
while on duty, and a union member might receive such communication about a
political campaign while on duty, that may not be a problem, as long as the
time spent in the call or responding to a text or email is limited, and such
communication does not occur frequently.
But in general, you should do the great majority of any “political” work
and activities, while you are off duty.
FREE SPEECH
There are two primary concerns when
a public employee speaks out about matters
pertaining to their work place, and these concerns directly impact on
the statements that an employee can make.
To be constitutionally protected under the State and Federal
Constitutions, the speech must meet the following criteria:
1. The speech must be on a matter of public
concern.
2. The speech must be done in an appropriate
fashion, and not be “overly
disruptive” of the work place.
Matters of “public concern”
It is not always easy to determine
just when speech is about a matter of “public concern”. It is, however, clear that when you are
primarily speaking about things that pertain to you or another employee
personally, you are speaking about matters of private concern. Thus for most of those matters, you must
utilize the grievance procedure and the chain of command, rather than raising
the issue in the press or directly with elected officials. Some examples of maters of “private concern”
in which speaking out publicly is not likely to be protected, would include
the following:
- If you are irritated about your job assignment, that is a matter of private concern and you should use the grievance procedure and go through the chain of command.
- If you are dissatisfied with your performance evaluation, that is also a matter where you need to use the grievance procedure and go through the chain of command.
- If you receive some form of discipline, including discharge, that will also generally be a matter of private concern, and you need to use the grievance procedure.
If you were
to approach an elected official such as a city council member or a county
commissioner about matters such as these on behalf of yourself or another
employee, you are engaging in speech on a matter of purely personal
concern. You have also gone outside the
chain of command, and outside the established grievance procedure. If management found out about your
conversation with an elected official about such “private” matters, and decided
to retaliate against you, you would have no legal protections. [However, it
should be noted that private, one-on-one speech, such as to an elected official
in their office or in their home, can be constitutionally protected, if it is
on a matter of public concern. Givhan
v. Western Consolidated School District, 439 U.S. 410 (1979).]
Matters clearly become “matters of
public concern” after they have been the topic of newspaper or TV
coverage. That does not mean that a
public employee can go straight to the news media about a “private issue”, and
then try to claim that it is a matter of public concern because the media did a
story on it. Indeed if you are the
source of the original news story, or encouraged some other person on your
behalf to contact the media to generate the story, you may not have any
constitutional protections. However, if
an issue has already been in the news [with no involvement by you in generating
the story] and a public employee speaks out about it, it is very likely that
the employee’s speech is constitutionally protected. Corum v. University of North Carolina,
330 N.C. 761 (1992); Piver v. Pender County Board of Education, 835 F.2d
1076 (4th Cir. 1987).
Matters having to do with the budget
of a department of a municipality, including matters of the level of pay for
employees in the department, are always matters of public concern. If speech about these matters is conducted
appropriately, it should be protected. Hickory
Fire Fighters Association v. City of Hickory, 656 F.2d 917 (1981).2
Speaking
in an “appropriate fashion”
This aspect of constitutionally
protected speech is also somewhat vague. However, it is important to realize
that even if you are speaking out about a matter of public concern, if you do
so “inappropriately”, you still may not be protected. For instance, if you were to barge into the
mayor’s or city manager’s office without an appointment, or stand up in the
middle of a city council meeting and demand to be heard, it is likely that your
speech will not be protected. Also if
you were to use strong language or profanity, get mad, raise your voice, or
call an employee or official unflattering “names”, your speech is not likely to
be protected. But there are other
situations where your actions may not be so disruptive, yet a court could still
conclude that your speech was not protected because of the manner in which you
carried it out.3
Every city and county has a
procedure that allows citizens to get on the agenda of public meetings by
making a request with the “clerk” of the body.
If you or a group of employees has an issue of public concern
that it wants to raise, getting on the agenda and raising the issue before the
elected officials at a public meeting is probably a good way to do so. Again, public employees, including officers
of a public employee groups or associations, always have the right to address
elected officials at a budget meeting, about budgetary matters affecting their
departments. Hickory Fire Fighters
Association.4
FREE ASSOCIATION
The First Amendment to the United
States Constitution protects not only free speech, but free association. Smith v. Arkansas State Highway Employees,
Local 1315, 441 U.S. 463 (1979).
Article I, Sections 1 and 12 of the North Carolina Constitution
similarly protect the rights of freedom of association. It is these free association provisions that
give public employees the right in North Carolina to form employee associations
or unions. One union member talking with
a union official about concerns in the workplace is part of the right of free
association, and neither the employee nor the union official can legally be
disciplined for that. Likewise, if the
union official, with the permission of the member, attempts to talk to a
manager of the department about the matter, that union official is exercising
the right of free association, and should have protections (assuming that the
matter is raised in an appropriate way with the manager).5 Indeed, in the Arkansas State Highway
Employees case, the Supreme Court expressly recognized that a public
employee association has the right to advocate on behalf of its members.
1Many (but not all) State employees have comparable
protections under the State Personnel Act.
See, General Statute Sections 126-13, 14, 14.1 and 14.2.
2The U. S. Supreme Court concluded that if a public
employee testifies about matters pertaining to their work as a result of a
subpoena, like to a grand jury or in court, that is generally a matter of
public concern. Lane v. Franks,
134 S.Ct. 2369 (2014). In the course of
reaching that conclusion the Court made a number of statements indicating that
it deems public employee speech about matters of public concern related to
their employment as very important in the context of our system of
governments.
3Courts often articulate this issue as whether the
speech impairs or disrupts the efficiency of the workplace, and consider a
variety of “factors” in determining if it does.
Factors
relevant to this inquiry include whether a public employee’s speech (1)
impaired the maintenance of discipline by supervisors; (2) impaired harmony
among coworkers; (3) damaged close personal relationships; (4) impeded the
performance of the public employee’s duties; (5) interfered with the operation
of the agency; (6) undermined the mission of the agency; (7) was communicated
to the public or to coworkers in private; (8) conflicted with the
responsibilities of the employee within the agency; and (9) abused the
authority and public accountability that the employee’s role entailed.
Ridpath
v. Bd. of Governors Marshall Univ.,
447 F.3d 292, 317 (4th Cir. 2006).
4Many municipalities have policies restricting when
employees, and particularly emergency responders, can speak with news media on
the scene of an event or emergency.
Usually the municipality designates a spokesperson to answer inquiries
from the media. If your employer has
such a policy that requires employees to refer inquiries at the scene to a
spokesperson rather than directly answering questions from the media, you
need to follow that policy. If you
violate that policy, you probably have no legal protections. If you felt that the response to the
emergency was poorly handled by your municipality, you could at a later time
express that view, and if you did so in an appropriate fashion, your speech could
be protected.
5Since public employee unions are generally “not
recognized” by the employers in North Carolina, it is not entirely clear that
the manager must talk to the union official about the member’s concern.
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