It’s often a fine line between public employees who are exempt from 1st Amendment protections because of their duties for the employer and those who enjoy protection when criticizing their employer about matters of public concern. Last Monday, the 7th Circuit Court of Appeals affirmed a district court’s decision to dismiss allegations of 1st Amendment retaliation and due process violation claims against former Illinois governor Pat Quinn.
Quinn declined to reappoint a number of Illinois Workers Compensation Commission arbitrators who challenged a law that reduced the arbitrators’ term limits. What is especially interesting about this case is that the “speech” of the arbitrators in question was in the form of a lawsuit challenging the validity of legislation that reduced their term of office.
The court ruled the governor’s decision to not reappoint these arbitrators was permissible because the employees were “policymakers” under the law and therefore did not enjoy 1st Amendment protection for their speech that was critical to their employer’s policy. Under this theory, a public employer has the ability to discharge policymakers when their speech is “critical of superiors or their stated policies”, even when the criticisms take the form of a lawsuit opposing the state’s worker’s compensation reform bill.
This might sound alarming when considering the arbitrators had been lawfully challenging a policy concerning their personal employment. The court explained, “their exercise of that right came with consequences for their positions in state government that the Constitution also permits. In filing their lawsuit, plaintiffs sought to undercut a key component of the administration’s worker’s compensation reform initiative.” The court stated that was reason enough, given their employment positions, and there would be “no redress for the governor’s choice.”
The court found support in key U.S. Supreme Court decisions allowing public employers to fire employees for speech that could hurt policy agendas when the employees are in “policymaking or confidential positions.” While it may seem that arbitrators don’t impose policy, the court said they do exercise a significant amount of discretion in their performance of their duties.
The court explained that “[t]hrough their lawsuit, plaintiffs aimed to undercut the governor’s policy. They wanted it declared unconstitutional. A lawsuit, at least as much as public criticism or statements to the media, could unravel a policy agenda.” Employers should note that the policymaker exemption to 1st Amendment protection applies equally when employees in those positions file suit attacking policies of their employer.
