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

• Author: Zwickel, Howard L.
• Position: IV. The New York Courts May Establish Free Speech Standards Under the New York State Constitution That Are Broader than the First Amendment Standards C. Independent New York Standards for Public Employee Retaliation Lawsuits through Conclusion, with footnotes, p. 66-91

3. Independent New York Standards for Public Employee Retaliation Lawsuits (173)

   In order for the New York free speech provision to provide public employees subject to retaliation with greater protection, consideration needs to be given to modifying several of the First Amendment standards that raise concerns. I propose four modifications.

   1. The Public Employer's Burden of Proof Under the Pickering Balancing Test Should Be Changed from "Preponderance of the Evidence" to "Clear and Convincing" Evidence.

      The "clear and convincing" evidence standard is a higher burden of proof than the "preponderance of the evidence" standard, and imposing this higher standard would reflect the importance that should be attached to a public employer's decision to take disciplinary action against a public employee based on his/her speech. (174) The government is required to meet this higher standard in other areas where important interests are at stake. (175) Reallocating the risk of loss seems appropriate in light of the essential role that the right of free speech plays in our society, especially where public employees are concerned. (176) The courts have the authority, in appropriate circumstances, to establish a risk of loss standard commensurate with the underlying interests at stake. (177) A clear and convincing evidence standard would help to ensure that the public employer takes a hard look at the facts and the impact on the workplace and workforce, before proceeding with any adverse employment action as a result of an employee's speech. (178) The higher standard should not prevent the public employer who has legitimate concerns about disruption within the workplace in satisfying its burden of proof. (179)

   2. The Requirement that the Public Employee's Speech Is Protected Only if He/She Speaks as a "Citizen" Should Be Eliminated.

      The distinction recognized in Garcetti v. Ceballos, and clarified to a certain extent in Lane v. Franks, between speech as a citizen and speech as a government employee when acting pursuant to one's ordinary work duties, should be eliminated. If a public employee suffers adverse employment action based on his/her expression, the Pickering balancing test should apply so long as the speech is on a matter of public concern. As Justice Stevens wrote in his dissent in Garcetti'. "The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong." (180) Indeed, lower courts have struggled with the concept of "pursuant to" an employee's "official duties" and constructed additional criteria in an attempt to define these terms. (181)

      If the employee alleges retaliation as a result of his/her speech on a matter of public concern, the claim makes sense for it to be evaluated under the Pickering balancing test because the public interest warrants the broad disclosure of information, and the free exchange of ideas, on important issues. (182) On the other hand, if the speech pertains to an internal personnel matter, the court can conclude that it is not a matter of public concern and the Pickering balancing test would not apply. (183) The employer would continue to have the opportunity to explain the reasons for its actions, and the courts could continue to defer to the important interests public employers have in maintaining control of their workforce and avoiding disruption in the workplace. (184)

   3. The Mt. Healthy Defense Should Apply Only to Defeat a Claim for Reinstatement and Accompanying Monetary Relief, but Not a Claim for Declaratory Relief or Damages.

      If the public employee prevails under the Flickering balancing test, he/she should be able to obtain some measure of relief to vindicate the impairment of his/her right to free speech even if the employer succeeds in its Mt. Healthy defense, and establishes that there was an independent, good faith basis for the adverse employment action. The Mt. Healthy defense permits a public employer to avoid liability even where there is a showing of retaliatory conduct. (185) When a court weighs the competing interests under Pickering and determines that a public employee's right to free speech has been violated, the employee should be able to obtain a declaratory judgment and some monetary relief, such as damages for reputational injury, even if the employer can also demonstrate an independent basis for the adverse job action and thereby defeat a claim for reinstatement and back pay. This compromise would ensure that the right to free speech under the state constitution is protected. (186)

   4. The Doctrine of Respondeat Superior Should Apply in Free Speech Constitutional Tort Claims Against the State or a Municipality.

      The Court of Appeals has already held that the doctrine of respondeat superior applies against the State in a constitutional tort cause of action. (187) The court also indicated in Brown u. State, that as a subdivision of the state, the doctrine would apply to a municipality. (188) As a matter of public policy, a governmental entity, which is responsible for hiring, firing and training employees, is better situated to bear the costs of a damages award. (189) The governmental employer can also exercise its authority to prevent future instances of retaliatory conduct through improved training and personnel management. Therefore, respondeat superior should apply in free speech claims as well.

      5. IN SUPPORT OF A STATE FREE SPEECH CONSTITUTIONAL TORT IN PUBLIC EMPLOYEE RETALIATION LAWSUITS

      Since there is no New York law similar to 42 U.S.C. [section] 1983 that can be used to enforce the free speech provision of the New York State Constitution, (190) the New York courts would have to create an implied cause of action to directly enforce the constitutional provision. (191) Fortunately, the New York State Court of Appeals' decision in Brown, provides a roadmap for accomplishing this objective. (192)

1. The Court of Appeals' Decision in Brown v. State Supports Implying a State Constitutional Free Speech Tort

   In Brown, the court considered whether the State could be sued for damages based directly on article I, sections 11 and 12 of the New York State Constitution, (193) which, inter alia, prohibit denying any person equal protection of the laws and provide protection against unreasonable searches and seizures. (194) The claim was brought by nonwhite males who were stopped and examined by police in Oneonta, New York based on a description by the victim of an attack that her assailant was a black male, and a police determination that he may have cut his hand with the knife used in the attack. (195)

   In evaluating whether the Court of Claims could entertain plaintiffs' action, the Court of Appeals first determined that the Court of Claims had subject matter jurisdiction to decide constitutional tort claims. (196) Second, the Court of Appeals concluded that it could establish an implied cause of action for damages under both the equal protection and search and seizure provisions because they were self-executing, that is, they did not require legislation to be enforceable. (197)

   Third, the court determined that establishing a damage remedy for the constitutional violation would be consistent with the language, history, and purposes of both provisions. (198) Moreover, such a remedy would be "necessary and appropriate to ensure the full realization of the rights they state." (199)

   Fourth, the court addressed whether alternative remedies rendered the constitutional tort unnecessary. With respect to common-law torts, which claimants had not asserted, (200) the court concluded that implying a constitutional tort should not depend upon "the availability of a common-law tort cause of action." (201)

   Common-law tort rules are heavily influenced by overriding concerns of adjusting losses and allocating risks, matters that have little relevance when constitutional rights are at stake. Moreover, the duties imposed upon government officers by these [constitutional] provisions address something far more serious than the private wrongs regulated by the common law. (202) Next, the court found that equitable remedies, such as an injunction or a declaration, "all fall short" because the claimants "had no opportunity to obtain injunctive relief before the incidents described and no ground to support an order enjoining future wrongs." (203) The court also explained that in this case "exclusion" of the evidence "has no deterrent value" because the claimants were not charged with any crime. (204) For the Brown claimants, "it [was] damages or nothing." (205) Moreover, damages were a "necessary deterrent" for the misconduct alleged in the complaint. (206)

   Last, the court responded to the arguments raised by the dissent that the State can be held liable under respondeat superior for violation of a constitutional tort, and explained that such liability is appropriate because the State can avoid misconduct by adequate training and supervision of its officials and employees. (207)

   Following the analysis in Brown, the New York courts could justify implying a free speech tort cause of action for damages directly under the state constitution. The first question under Brown was whether the court had subject matter jurisdiction over the proposed cause of action. Brown held that the Court of Claims has general jurisdiction to entertain constitutional tort claims for money damages against the State, and that holding should apply as well to the free speech constitutional tort. (208)

   One possible issue that could be raised is that the waiver of sovereign immunity in section 8 of the Court of Claims Act, (209) does not apply because the free speech provision only restrains the conduct of government officials, not private actors. (210) This argument is based on the language in section 8, that the State consents to have its liability "determined in accordance with the same rules of law as applied to actions in the...