Municipalities have always had the right and obligation to operate government effectively and efficiently.  Municipalities have also always had to deal with employees criticizing their efforts.  Sometimes political in origin, sometimes not, employees can be critical of the Mayor and/or other members of the governing body, their actions or inactions, or simply the environment within which they work.

            The question has always been:  Under what circumstances, if any, can a municipality discipline an employee for comments critical to a municipality and/or its municipal officials without violating the employee’s first Amendment right to free speech.  Understandably, some municipalities discipline employees for critical comments without undertaking the proper analysis, rendering the municipality liable for First Amendment violations.  Other municipalities fail to take proper disciplinary action for fear of litigation and violating an employee’s First Amendment rights.

            When this topic was first addressed in the NJCM Quarterly in 2005, the United States Supreme Court has rendered a decision further defining the balance between the rights and obligations of a municipality and an employee’s right to express his or her opinions.

            It is well-settled law that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.”  Connick v. Myers, 461 U.S. 138, 142 (1983).  However, the United States Supreme Court recently held “[w]hen a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.”  Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (U.S. 2006).

            In order to determine whether speech is subject to such limitation or whether it is protected by the First Amendment, a two-prong test must be applied.  “The first [prong] requires determining whether the employee spoke as a citizen on a matter of public concern,” citing Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568 (1968)).  In other words, the individual must be delivering his or her speech as a private citizen, not as a public official. 

            “If the answer is no, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech,” Connick, 461 U.S. at 147.  “If the answer is yes, then the possibility of a First Amendment claim arises.  The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public,” Pickering, 391 U.S. at 568.

            The question focused upon by the United States Supreme Court in Garcetti was whether the employee is acting as a private citizen.  As stated above, if the employee is acting as a private citizen and speaking on a matter of public concern, a First Amendment claim arises and the analysis must go further.            

           In Garcetti, a supervising deputy district attorney, as a part of his job duties, submitted a memorandum “that addressed the proper disposition of a pending criminal case.”  In his lawsuit, he alleged that, subsequent to the submission of the memorandum, he was criticized by a lieutenant and “was subjected to a series retaliatory employment actions.”  The employee did not dispute that he prepared the memorandum pursuant to his duties as a prosecutor.”  The Supreme Court held “that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”  The Court based this holding upon the premise that public employers need “sufficient discretion to manage their operations” and the ability to evaluate performance of their employees.

            Given the clear guidance of the United States Supreme Court, municipalities are not without recourse when employees make statements detrimental to the effective and efficient operation of the municipality.  When the employee is not speaking as a public citizen, but rather in their official capacity, or the matter is not of a public concern, and/or the municipality has an adequate justification for treating the employee differently from any other member of the general public, disciplinary action is a viable response.

            The First Amendment right to free speech is stridently protected.  While this right to free speech for public employees has its limits, municipalities must undertake the above outlined analysis before taking disciplinary action in these circumstances to insure that the employee’s First Amendment rights are not being violated.

            For further information, please contact me as your NJCM Labor Counsel. SGLICKMAN@RGLABORLAW.COM