As we approach another local election cycle, I want to point out that the Sept./Oct. 2008 issues of the Municipal Lawyer has an interesting article by Lawrence L. Lee titled “Avoiding Workplace Free Speech Claims in the Upcoming Election: Tips to Prevent Liability.”
The primary focus of the article is that public employees and employers need to be aware of the established legal principles of the State and Federal Constitution, as well as relevant state statutes that apply to the ability of a public employee to exercise political speech rights at work. For example, potential legal issues may arise under 42 U.S.C. 1983 for freedom of speech or association claims made under the First Amendment.
The most common issues for public employees include:
1. Can an elected official take employment action against an employee of a different party?
2. Does a public employee have a First Amendment right to express his political views or allegiances on the job?
3. To what extent can he express his political preferences?
In 1976, U.S. Supreme Court held that an elected Democratic sheriff couldn’t constitutionally replace certain Republicans within his office, stating that the cost of the practice of patronage was the unquestionable restraint it placed on the constitutionally-protected right to freedom of belief and association. And, in 1990, Supreme Court expanded to include limitations on retaliary work practices equivalent to termination (i.e., demotions, transfers, recalls). Whereas, posting political signs and intra-office election debates are generally protected under the 1st Amendment.
In cases where an employee is disciplined or terminated for political speech, a municipal employer has some defenses, which are:
A. The government can justify patronage dismissals by proving the employee is in a “policymaking position” and political affiliation is an important precondition for the position.
B. Proving the employee’s expression disrupted office functions.
C. Proving that the employer would have made the same decision even without the protected conduct.
In any event, taking action against a politically active employee in an election season can be a risky road for municipal managers. If a municipal employee feels they have been targeted because of their political beliefs or if a city wants to terminate an employee who also happens to be politically active, it is highly recommend you consult an attorney for a specific course of action.