VOLUME II Chapter 24 Constitutional Rights of Public Employees

• Jurisdiction: South Carolina

Chapter 24 Constitutional Rights of Public Employees Thomas K. Barlow Halligan Mahoney Williams, PA

I. Introduction

A public employee performs civil services for the government: federal, state, county, or local municipality. As a general principle, citizens do not surrender their constitutional rights by accepting public employment. Public employees enjoy the protection and rights afforded by both the federal constitution and the various state constitutions.¹ Nevertheless, the government's legitimate interest in providing efficient public services may, at times, outweigh the rights of public employees and place limitations on their constitutional rights which could not be imposed upon private citizens. These restrictions normally must be made in furtherance of a compelling governmental interest and narrowly tailored to achieve that interest. In effect, when imposing restraints on an employee's constitutional rights, the government must demonstrate that its operational and efficiency needs justify the infringement upon the employee's rights.²

II. Freedom of Expression

A. Generally

Freedom of expression for public employees is protected under the FirstAmendment of the United States Constitution and Article 1, § 2 of the South Carolina Constitution. In evaluating freedom of expression issues, the U.S. Supreme Court has established a three-part test to determine whether an employee's constitutional rights have been violated. First, to qualify for protection, an expression must relate to a matter of public concern. Second, the court must balance the competing interests of the employee's rights and the employer's interest in the efficient operation of government.³ If the employee's expression is deemed protected, the trier of fact must determine whether the expression was a motivating factor in the dismissal of the employee.⁴ Finally, in order to avoid liability, the employer may then show, by a preponderance of the evidence, that the same decision would have been made absent the protected expression.⁵

B. Public Concern

As a threshold matter, to qualify for constitutional protection, expression must address a matter of "public concern." This is a legal issue determined on a case-by-case basis. Whether the subject matter of the employee's speech is of "public concern" is determined by its content, form and context from the entire record.⁶ Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.⁷ Matters of public concern have included: letters to the editor regarding public school issues,⁸ teacher's letters attacking a school board's use of funds,⁹ a letter accusing the employer of allegedly engaging in racially discriminatory practices,¹⁰ officer's questioning of a "friendly fire" incident and subsequent cover-up,¹¹ truthful sworn testimony in a legal proceeding,¹² aggressive Facebook posts on gun rights and criticism of employer's social media policy,¹³ and off-duty musical entertainment performances.¹⁴ Expressions which have been determined not to qualify for constitutional protection include disloyal statements,¹⁵conflicts of interest,¹⁶ communications made pursuant to regular job duties,¹⁷ employee sponsored internal investigations of supervisor misconduct,¹⁸ employee grievances of a personal nature,¹⁹ and employee encouraged walk-out of students.²⁰

As reflected by these examples, a fact-specific balancing of the employee's interests against societal interests is necessary. The inappropriate or controversial nature of the statement is irrelevant to the determination of whether it addresses a matter of public concern.²¹

In addition to examining the context of the expression, it is necessary to determine the actual substance of the expression when analyzing the "public concern" criterion of protected speech. It is equally important to identify any dispute regarding the expression. For example, the actual substance of the speech may be in controversy. In Waters v. Churchill,²² a nurse was discussing "how bad things" were at work with a fellow employee. Two other employees reported the conversation to their supervisor. The supervisor then fired the speaker based upon what she had been told. Although an employee's personal gripes would not be protected, the supervisor's failure to investigate the actual context and content of the expression created a factual dispute regarding application of the First Amendment.²³

C. Balance of Interests

Where expression is found to be a matter of public concern, courts must balance the interest of the employee, as a citizen, in commenting on matters of public concern and expanding the informed debate against the government's interest in promoting efficient public services.²⁴ In Pickering, the court held that the school's interest in efficiency did not outweigh a teacher's right to criticize school district operations. Thus, termination of the teacher's employment violated the First Amendment.

Factors taken into account are whether a public employee's expression: (1) impaired the maintenance of discipline by supervisors; (2) impaired harmony among co-workers; (3) damaged close personal relationships; (4) impeded the performance of the public employee's duties; (5) interfered with the operation of the institution; (6) undermined the mission of the institution; (7) was communicated to the public or to co-workers in private; (8) conflicted with the responsibilities of the employee within the institution; and (9) abused the authority and public accountability that the employee's role entailed. A stronger showing of public interest warrants a stronger showing of governmental interest to overcome it.²⁵The employer is not required to show actual disruption, but only a reasonable likelihood of disruption.²⁶ In balancing the interest of the employee against the government's interest, the character of employment should be taken into consideration.²⁷ Both the federal courts and the South Carolina Supreme Court have held that the free speech rights of police and fire departments should be viewed in a more limited context.²⁸

Policies or legislation that have a chilling effect on free speech of public employees are also impermissible under the First Amendment. For example, an amendment to the Ethics in Government Act of 1978 prohibiting "government" employees from accepting honoraria for appearances, speeches or article writings, was overturned for violation of the First Amendment.²⁹ Where legislation or policy has the effect of preventing free speech, the government must show that its interest in restricting the expression (or even compensation for the expression) outweighs the interests of both the citizens who might want a government employee to speak or write, and all present and future government employees.³⁰ Nevertheless, not all prior restraints on expression are impermissible. For example, federal legislation prohibiting certain public employees from running for partisan office is not a violation of free speech rights.³¹

A chilling effect on public employee free speech may arise in cases involving a discharge based on the employee's political affiliation. A critical question in this analysis involves the nature of the position held. A policymaker or one in a position of political sensitivity may be expected to maintain a degree of public loyalty. By contrast, an employee that does not hold a policy-making position may not be discharged because of political affiliation.³²

D. Causation

When an employee participating in protected expression suffers an adverse employment action, the employee carries the initial burden in showing that the protected speech was the substantial or motivating factor in the personnel decision.³³ If this burden is met, then the government must show by a preponderance of the evidence that it would have made the same decision but for the protected conduct. The ultimate question is, but for protected expression, would the challenged employment action have occurred?³⁴

III. Freedom of Association

A. Generally

The First Amendment protects public employees from governmental infringement of the right to associate outside the workplace. To determine whether a public employee's protected right is being violated, the Supreme Court has developed a balancing test under which the individual's right to privacy in group association is weighed against protecting a compelling governmental interest.³⁵

The privacy right extends to the public employee's association with political, religious, or economic groups.³⁶ Courts have specifically found that a public employee's participation in professional associations,³⁷ labor unions,³⁸ and political organizations³⁹ and parties⁴⁰ are protected under the First Amendment. The Supreme Court has held that the termination of an employee based on the employer's mistaken belief that the employee supported a political opponent is an actionable First Amendment violation.⁴¹

The government has been found to have a compelling interest in its power to inform itself through legislative process for the protection of legitimate and vital interests⁴²or to determine the general competence and fitness of its employees. However, a desire to afford complete patronage to a single political party is not a legitimate compelling or "vital" state interest. ⁴³

In balancing constitutional and governmental interests, the government has the critical burden of showing a nexus between its desire to know of an employee's association in a particular organization and a compelling governmental concern.⁴⁴ In Gibson, the inquiring legislative committee did not "demonstrate so cogent an interest in obtaining and making public" Communist Party membership as to "justify the substantial abridgement of associated freedom which such disclosing will effect."⁴⁵ The Shelton court further developed this analysis in holding that inquiries into an employee's private association may be more compelling and significant based on the...