Public worker’s speech not protected by 1st Amendment – Cincinnati.com

Jack Greiner 7:17 p.m. ET Feb. 2, 2017

John C. Greiner, attorney for Graydon Head Legal Counsel. He's a commercial litigator with an emphasis on communications and media law. He serves on the firm's Appellate Practice Group.(Photo: Provided)

Firma Helget, an administrative assistant with the Hays, Kansas Police Department, discovered recently that not all speech by a public employee receives First Amendment protection. As a result, the United States Court of Appeals for the Tenth Circuit upheld the dismissal of her wrongful termination suit against the department.

The case arose when Helget provided an affidavit to assist officer Blaine Dryden in his own wrongful termination suit against the department. The department claimed it fired Dryden based on his unprofessional and inappropriate conduct at a court hearing in December 2010. But Dryden alleged that was a pretext, to cover up the fact that he was fired for his union activities. Part of Drydens proof that that the department had decided to terminate him before the court incident was the fact that the department had decided, before the December court incident, not to issue him a ballistic vest.

At Drydens request, Helget provided an affidavit asserting that she had been instructed to remove Dryden from the ballistic vest ordering list in early December 2010. In May, 2011, the department fired Helget stating four reasons, one of which was her disclosing confidential information in the Dryden litigation.

In her wrongful termination suit, Helget contended the firing violated her First Amendment right of free speech. The trial court, and ultimately the appellate court, disagreed.

Public employees, unlike private sector employees, are protected by the First Amendment. The reason is simple. The First Amendment prohibits certain conduct by the government, not private conduct.

But courts recognize in the employment setting, the issues are a little different. It would be a pretty tough place to work if a public employee could march into the managers office every morning and tell the manager exactly how inept the manager was. An absolute view of the First Amendment, however, would not allow that employee to be disciplined.

Courts have accordingly, adopted a balancing approach. Public employees may speak out on matters of public concern, but a public employer may protect the efficient operation of the workplace. The daily tongue lashing would no doubt disturb the operation of the office, so in that case, the employee could be disciplined.

Helgets case was not as clear cut. She provided an affidavit in a case that alleged a police officer lost his job for engaging in protected conduct union activity. The affidavit did not immediately affect the operation of the office, in the same manner as the hypothetical.

But in the courts view, Helgets speech was related more to an employment dispute than a matter of public concern, and her voluntary disclosure of confidential information caused her superiors to lose confidence in their ability to trust her with information going forward. Based on this finding, the court had little difficulty rejecting her First Amendment claim.

Given our divisive political climate, it is likely employees public and private will be tempted to air their views. That may result in a lot of tests of the First Amendment over the next four years.

Jack Greiner is a lawyer with the Graydon Head law firm in Cincinnati and represents Enquirer Media in First Amendment and media issues.

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Public worker's speech not protected by 1st Amendment - Cincinnati.com