In support of an implied state constitutional free speech tort in public employment retaliation cases.

• Author: Zwickel, Howard L.
• Position: Introduction through IV. The New York Courts May Establish Free Speech Standards Under the New York State Constitution That Are Broader than the First Amendment Standards B. Article I, Section 8 Should Be Read More Expansively than the First Amendment in Public Employee Retaliation Cases, p. 33-65

1. Introduction

   As a society, we consider freedom of speech to be one of our most cherished values. (1) Indeed, the first provision to be ratified in the Bill of Rights, the First Amendment to the U.S. Constitution, secures freedom of speech and the press against limitation or restriction by Congress. (2) As the Supreme Court has reminded us, free speech is a cornerstone of our democracy:

   "Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political ... truth." ... [A] broad conception of the First Amendment is necessary "to supply the public need for information and education with respect to the significant issues of the times.... Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." (3)

   Free speech by public employees on important public matters is an essential component of our right to free speech. (4) Government employee speech of public importance can cover the full gamut from providing opinions and advice about the workings of a governmental program, policy, or practice, to identifying and disclosing instances of perceived gross mismanagement, abuse or wrongdoing in the workplace. (5) Because of their intimate knowledge of how government programs operate, public employees have the ability to convey ideas and information that can improve government programs, and ensure that they are accountable to the public. (6) As the Supreme Court recently observed: "There is considerable value ... in encouraging, rather than inhibiting, speech by public employees. For '[government employees are often in the best position to know what ails the agencies for which they work.'" (7)

   Despite the important contributions that public employees can make to ensuring that government programs operate efficiently and effectively, their ability to freely and frankly exchange information and ideas is often hampered by fear of job reprisals. (8) To make matters worse, coworkers, fearful of losing their jobs or suffering other adverse employment consequences because of perceived or actual reprisals taken against others who have spoken, become less willing to speak to others about important matters in the workplace. (9)

   While the Supreme Court has recently observed that "[s]peech by citizens on matters of public concern lies at the heart of the First Amendment," and this includes "information related to or learned through public employment," (10) the Court has constructed a First Amendment standard in public employment retaliation cases that does not go far enough to protect public employee speech. This article will address some areas in which the First Amendment is not sufficiently protective of the free speech rights of public employees, and suggest that a more effective free speech cause of action be implied from article I, section 8 of the New York State Constitution.

   A meaningful state free speech constitutional tort, with enhanced state standards, could encourage more expressive activity by public employees, which would benefit both the government and the public. (11) It could accomplish this objective by deterring efforts to chill free speech and providing compensation to victims of reprisals in situations that are not being adequately protected by the existing federal constitutional framework.

   Part II of this article discusses the challenges that public employees face when they express their views on a government program or policy, or report perceived wrongdoing in the workplace. This part also touches upon the various interests at stake when public employees are encouraged to speak.

   Part III of the article explores the First Amendment law in this area. It begins with a brief introduction and some historical background on the rights of public employees to speak in the workplace. This section continues with a discussion of the important legal developments in the First Amendment law of public employee speech, emphasizing the so-called Pickering (12) balancing test and two issues that have emerged in post-Pickering cases, the exclusion of speech by government employees when performing their ordinary duties and the ability of public employers to defeat otherwise valid speech retaliation claims using evidence of adverse workplace impact. The two final subsections in this part address other issues that are relevant to the need for a state constitutional tort: the potential impact of the Mt. Healthy defense, (13) the doctrine of qualified immunity, and New York's public employee whistleblower statute.

   Part IV of the article turns to the text, history, and relevant case law interpretations of New York's constitutional free speech provision to evaluate whether New York law could support a more expansive state free speech standard. The first section of this part discusses New York's authority to establish independent constitutional law standards, and focuses upon a New York State Court of Appeals' decision that adopted a broader free speech standard under the state constitutional provision than is provided by the First Amendment. (14) The second section argues for a broader state free speech standard in public employment retaliation cases. The last section proposes several standards which would provide greater free speech protection for public employees in retaliation cases, and provides a justification for each standard.

   Part V of the Article supports establishing an implied free speech state constitutional tort. It includes a discussion of some of the main arguments likely to be raised in opposition to establishing such a claim. The second section explains why a constitutional tort is necessary and no alternative remedies would be as effective.

2. CHALLENGES FACED BY PUBLIC EMPLOYEES WHO SPEAK OUT ABOUT MATTERS OF PUBLIC IMPORTANCE, AND THE STAKES INVOLVED IN ENCOURAGING SUCH SPEECH

   Government employees, by the nature of their jobs, are in a position to observe and learn about the operation of government programs, how policies and practices work on the ground, and what changes can be made to improve the operation of government. (15) However, studies have shown, and reports in the media have confirmed, that many public employees remain fearful of expressing their views or disclosing possible abuses or serious mismanagement because of job reprisals.

   A 2010 survey undertaken by the U.S. Merit Systems Protection Board (Merit Board), in which more than 40,000 federal employees responded, (16) showed that of the 11.1% of employees who acknowledged that they observed wrongdoing or wasteful activities involving their agency in the past twelve months, a majority either did not report the activity or only told someone who lacked the authority to take corrective action. (17) The survey also revealed that, of those respondents who reported an activity within the past twelve months, more than thirty-six percent perceived or suffered either threats or actual reprisals, and only seven percent were given credit by their agency management for coming forward. (18)

   The findings from the Merit Board's survey are consistent with stories that appear in the media of federal employees who claim to have suffered threats or actual reprisals after disclosing what they believed was wrongdoing or wasteful activity at their agencies. For example, the media recently reported on serious problems with access to, and delivery of, medical care for veterans due in large part to employees at the Veterans Administration (VA) informing the media about practices--such as falsified records--used to cover-up long delays in scheduling appointments. (19) According to one report, "[s]ome of the veterans have died waiting for their claim to be processed ..." (20) Some of the VA employees who went to the media also complained that they had gone to supervisors previously but either their concerns were ignored or their supervisors tried to cover-up the long wait, and disciplined those employees who spoke up. (21)

   One media report stated that investigators from the Office of Special Counsel (22) are looking into allegations that VA supervisors retaliated against sixty-seven employees who complained about falsification of records and other improper and potentially illegal practices. (23) Further, "[t]he Office of Special Counsel said it had blocked disciplinary actions against three VA employees who had complained, including one who was suspended for seven days after complaining to the VA's inspector general about improper scheduling." (24)

   New York case law also includes several examples of public sector employees who claim to have been subjected to adverse job actions as a result of expressive activities. (25) The media has also reported on alleged reprisals against state and local government public employees who have complained about what they perceive to be improper policies and practices at their respective agencies. (26)

   The public's right to know what is happening in government is impeded when public employees are fearful of speaking up on matters of public importance. (27) The Supreme Court has emphasized that the "interest at stake" (28) in public employee retaliation cases is not just between the government entity as employer and the public employee as speaker, but also includes "the public's interest in receiving the well-informed...