RIGHTS OF PUBLIC EMPLOYEES TO ENGAGE IN POLITICAL ACTIVITIES, AND LIMITATIONS ON PUBLIC EMPLOYEES’ SPEECH AND COMMUNICATIONS

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            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.

The sub-paragraph (f) of the law makes clear that it “trumps” any local ordinance, policy or charter  that may try to limit employees from being politically active during their off duty time.
            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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