Can a public employee’s right to free speech protection be violated even if the employee wasn’t exercising that right? The Supreme Court said yes to that question in its decision yesterday in Heffernan v. City of Paterson, New Jersey.
In that case, Plaintiff Jeffrey Heffernan was a police officer for the City of Paterson and assigned to the position of detective. Many acknowledge that not only do detectives generally earn more money than officers, but the assignment of detective carries with it a certain prestige.
The Paterson chief of police, as well as Heffernan’s immediate supervisor, had been appointed by the City’s mayor, who was running for re-election against Heffernan’s friend, Lawrence Spagnola. Heffernan was not involved in Spagnola’s campaign. During the course of the campaign, Heffernan was spotted by several officers picking up a Spagnola yard sign, which apparently he was doing as a favor for his mother. Heffernan’s actions were immediately reported to the police chief and the next day, Heffernan was demoted for his “overt involvement” in Spagnola’s campaign.
Heffernan claimed that his conduct in retrieving the campaign sign amounted to an exercise of his First Amendment right to free speech and sued the City. The City, on the other hand, argued that it demoted him because Heffernan violated department policy which prohibited “overt involvement” in political campaigns.
Both the district court and court of appeals found in favor of the City, holding that Heffernan’s First Amendment rights were violated only if he were actually exercising them, but since he was merely picking up a sign for his mother, he was not actually engaging in protected activity. The courts found no protection existed if the City acted on a mistaken belief that Heffernan was engaging in political free speech.
Maybe not surprisingly, in a six to two vote, the Supreme Court reversed and remanded the case. It found that the City’s motive for demoting Heffernan mattered in the determination of whether his rights were violated. It stated that the constitutional harm of discouraging employees from engaging in protected speech is the same whether or not the public employer’s actions were based on a factual mistake.
The takeaway for employers is two-fold. One, it’s probably best not to have a policy which generally prohibits employees from overt involvement in political campaigns, although it’s certainly appropriate to prohibit that kind of activity during working hours or while in uniform. Secondly, clearly the actions here were a knee jerk reaction of perceived disloyalty on the part of the City about an employee. A thorough investigation and consultation with legal counsel can allow a calm and thought out response to perceived misconduct.
