© 2017 Michael Livolsi Law. Disclaimers.

THE IMPORTANCE OF COMPETENT COUNSEL

February 28, 2017

THE IMPORTANCE OF COMPETENT COUNSEL

 

 

Newly elected leaders, whether local, state or federal, will often find themselves subject to unfamiliar legal requirements.  Failing to account for all of these requirements, even in general public discourse, can undermine implementation efforts and result in costly legal proceedings.  Here we look at the potential consequences to the new presidential administration’s apparent goals which might result from POTUS' public statements regarding DOE employees. 

 

Donald Trump’s name is synonymous with his famous method of terminating staff… publicly telling them that “you’re fired” on TV.  This style has in many ways been carried over to his current administration.  Recently, the POTUS requested the names of employees at the US Dept. of Energy (DOE) who had engaged in climate change research or who had a role in speaking about climate change.  Specifically, Trump’s team sought the identities of all employees or contractors who have worked on climate change, the identities of employees who attended the annual global climate talks hosted by the UN, and the professional society memberships of some employees.  The DOE interpreted this as a threat to their employee’s constitutional liberties and refused to disclose the information.  More recently, Donald Trump issued an executive order constraining the travel and movement of some people who had already been authorized to be present within the United States. This order was later stayed by several federal courts, posing serious roadblocks to the long term success of his policies.   

 
A CASE STUDY IN PUBLIC EMPLOYMENT COMPLIANCE 

Government employers do not have as much discretion as private employers to terminate employees.  Newly elected officials at every level of government, especially those with no prior public service experience, all struggle at first to learn the new landscape of compliance that applies to public employment.  

 

Private employers typically hire individuals “at will”.   At will employment means that the employer can terminate or adversely react to any employee for any reason, good or bad, so long as it is not specifically prohibited by law or contract.  Likewise, an employee may typically leave their employer for any reason.  The specifically prohibited bases for termination or adverse action are themselves a separate discussion, but they are typically things such as discrimination, harassment, or retaliation for engaging in a protected activity.  With very limited exceptions, often described as “entangled” employers who’s activities make them functional “state actors”, Private employers (being non-governmental entities) are not governed by the Constitution.

 

Public employers, while also presumptively hiring employees "at will", aregoverned by the Constitution, which guarantees the right to free speech under the First Amendment.  But this does not mean that public employers are powerless to prohibit their employers from engaging in certain activities. 

The United States Supreme Court has stated that employees are free to speak about matters of public concern, even when those matters have specifically to do with their job duties.  

"The First Amendment protects some expressions related to the speaker's job.  As the Court noted in Pickering: 'Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.'  The same is true of many other categories of public employees." See Garcetti v. Ceballos, 547 U.S. 410, 421 (2005). 

 

But this does not mean that all speech in the course of employment is protected.  The Supreme Court has identified three circumstances in which public employee speech is not protected from retaliation by state employers. First, speech about personal issues, as opposed to matters of public concern, is not protected from retaliation.  Second, speech on matters of public concern is not protected from retaliation unless the employee's First Amendment interests outweigh government employers' legitimate interests in efficient administration (commonly known as the Pickering test). Third, speech made by employees pursuant to official duties, as oppose to as a private citizen, is not protected from retaliation.  By way of example, a report written by the DOE employee, in the course of his employment is not protected speech.  However, private speech made on the same topic, even if it is regarding subject of his employment, which is on a matter of public concern and outweighs the government’s legitimate interests in efficient administration, is protected.  Because of this, it would seem that a DOE employee’s public statements on climate change, made outside of his or her role as employee, which might contradict the POTUS’ position on climate change, is likely protected speech.  Professional affiliations, conference attendance, etc., if outside of the scope of official duties, is also likely protected.  Employee speech made in the course of employment, however, is likely not protected under the first amendment.  And, therefore the First amendment would not interfere with a public employer’s use of discretion to terminate or otherwise adversely effect that employee. Thus, it is well established that neither employers, nor employees, check their respective rights at the office door. 

 

Notwithstanding the inapplicability of the First amendment to some speech, there are other considerations which might prevent a public employer from terminating an employee for on the job speech.  In many circumstances statutes, regulations, and collective bargaining agreements combine to create both procedural and substantive due process rights to continued employment, as well as employment free from undue adverse consequences.  This is often referred to as a “property interest” in the position, the benefits conferred to the employee, and the position’s essential elements.  In the case of the DOE for example, there are pre-termination and pre-discipline processes applicable to some employees' and positions. During these proceedings determining the propriety of any adverse employment action, the employer will often have to prove its position is justified by at least a preponderance of the evidence (commonly illustrated as proof of a 51% or greater chance of being correct). 

 

Because of this, public employers, especially those in the midst of administration changes, must consider the rights of their employees, and that employee performance is governed by a standard of reasonableness, not with 50/50 hindsight.  Once again, the current POTUS situation provides a concise illustration.  POTUS’ targeting of climate change sympathizing employees at the DOE likely stems from the administration consideration of any work substantiating climate change to be insubordinate, or a hoax bordering on a lack of candor.  However, although the POTUS' administration will, practically speaking, be able to set policy and performance standards, they do not have discretion to declare that performance which met the prior administration standards and goals justifies termination, nor can they require employees to be proponents of positions which are factually incorrect.  For example, with the vast majority of scientists agreeing that climate change is man made, the POTUS' administration may find it difficult to discipline or terminate an employee because that employee's work confirmed a widely held scientific consensus.

  

Furthermore, aside from these, and possibly other, constitutional constraints, many DOE employees are members of a Union, and therefore the terms of their employment, including adverse action and termination, are subject to the terms of that agreement.   The agreement provides for informal and formal grievance procedures, and contemplates recourse to the Merit Systems Protection Board, which provides an appeal process by which terminated or disciplined federal employees may seek review of the adverse employment action. 

 

The statements made by POTUS might lead reasonable minds to conclude that any forthcoming terminations of employees from the DOE might be retaliation for protected speech, a deprivation of a property or procedural due process interest, or for some other reason not related to deficiencies in performance.  Indeed, it is as difficult to ignore these statements, in the context of termination, as it would be to ‘unring a bell.’  This is likely to pose a significant setback to the administration's staffing choices.  Any legitimate reasons for termination notwithstanding, Trump’s prior statements will be considered by a judge or jury, and therefore have already affected his administration's ability to effectively manage its workforce.  This may result in an injunction, delaying any terminations, monetary damages, and reinstatement of employees who were terminated.  

Thus, in this new era of frank politics, it would be wise for future leaders to check their statements, and their intended actions, against the advice of counsel.  Power can, at times, be more of a hindrance than a help, when not properly used. 

 

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