The issue of whether a public employer can discharge an employee as a result of critical remarks about the employer seemingly will never go away.
Late last week, an Illinois federal district court dismissed a suit* against the City of Calumet City after it discharged a Deputy Fire Chief allegedly for a series of critical remarks he made about the City and its officials. As many readers are aware, the City is no stranger to controversy and allegations of political retaliation.
In the current case, the plaintiff started his employment as a firefighter and eventually was promoted to Deputy Fire Chief. He also apparently regularly posted “political commentary” on his Facebook page. The plaintiff alleged that he had a phone conversation with the Personnel Director and the Assistant to the Mayor about his Facebook commentary but was not directed to stop posting them. Later, according to plaintiff, the Fire Chief informed him that he was being discharged “due to concerns over his private political views” on his Facebook page.
The problem for the plaintiff in this case is that while public employees have a right to engage in free speech, that right is tempered by a few factors. To establish a First Amendment retaliation claim, a public employee must show that:
- he engaged in constitutionally protected speech;
- he suffered a deprivation because of his employer's action; and
- his protected speech was a “but-for” cause of the employer's action.
The plaintiff in this case, had trouble showing that his speech was constitutionally protected.
A public employee's speech is constitutionally protected if: (1) he made the speech as a private citizen; (2) the speech addressed a matter of public concern; and (3) his interest in expressing that speech was not outweighed by the state's interests as an employer in promoting effective and efficient public service. To make things more difficult for the employee in this case, an employee who is considered a “policymaker” in the organization may be discharged “when that individual has engaged in speech on a matter of public concern in a manner that is critical of superiors or their stated policies.”
Likely, if the plaintiff here had engaged in the political commentary while still a firefighter, and not a Deputy Chief, he would have enjoyed more legal protections, but the law clearly sides with a public employer’s right to demand a certain amount of loyalty and circumspection in an employee’s speech once that employee becomes “management” or involved in the creation or effectuation of policy within the organization.
Free speech issues are still tricky and the rules can apply differently depending on the facts of the particular situation. Employers should always look at the position and duties of the employee making critical statements, where the statements were made, along with whether the statements are negatively affecting the organization. Employers are rightfully sensitive to negative statements on Facebook because of the possible widespread dissemination of the remarks. Each case must be evaluated individually though to determine the lawful response. Always consult with labor and employment counsel before taking action against your public employee as a result of his or her negative statements about the organization or officials.
*Banske v. City of Calumet City, 17 C 5263, 2018 WL 372145, at *2 (N.D. Ill. Jan. 11, 2018)