The administration in Bald Head Island, North Carolina were right when they concluded that they would not run afoul of the First Amendment rights of police officers that they decided to discharge for exchanging inappropriate text messages on their personal phones about supervisors, co-workers and others. What they apparently didn’t realize is that they could find themselves in hot water for publicly disclosing reasons for discharging the officers.
The Village of Bald Head Island has a combined fire, police and EMS department, headed by a director of public safety, Caroline Mitchell. She got wind of the fact that four members of the department had exchanged a chain of text messages containing derogatory comments about the competency of other department members as well as administration and questioned Mitchell’s sexual orientation, with one officer making reference to her as a man. After seeing these texts, Mitchell decided that these four officers should be discharged. Mitchell testified that she recommended terminating the Officers solely because she did not “want [the Officers] to be part of our [Department’s] team,” but made no other specific recommendation as to why the Officers should be fired.
During the termination meetings each of the officers received termination letters citing various policy violations, including being discourteous, detrimental personal conduct, harassment and sexual harassment, although not every letter cited to the same infractions. That same day, the Village sent an email to all employees stating that the officers were discharged based on violations of [Bald Head’s] policies pertaining to harassment, sexual harassment, discourteous conduct, detrimental personal conduct and inappropriate electronic communications. The email did not differentiate between each officer’s alleged policy violations. Additionally, the email included the full text of Bald Head’s policy regarding “[d]etrimental personal conduct”—one of the violations listed in all the Officers’ termination letters—which is defined as “behavior of such a serious detrimental nature that the functioning of [Bald Head] may be or has been impaired; the safety of persons or property may be or have been threatened; or the laws of any government may be or have been violated.”
The next day, the Village released copies of the termination letters to the media.
The officers filed suit claiming, among other allegations that the Village violated their First Amendment right to free speech and violated the Fourteenth Amendment, by failing to afford the Officers due process before publicly disclosing information that placed a stigma on their reputations.
The court dismissed their First Amendment claim but found that the officers were entitled to a trial on their Fourteenth Amendment allegations. This type of claim is somewhat uncommon.
To establish that a governmental employer violated a former employee's Fourteenth Amendment rights by publicly disclosing the reasons for the employee's discharge, the employee must first establish that he has been deprived of a liberty interest, and does so by demonstrating that the charges against him by his governmental employer: (1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false.
The former Bald Head Island officers will get their day in court because the Village disclosed to the public that they all engaged in the same (egregious) misconduct when in fact their termination letters each cited different policy violations. It’s also pretty easy to imagine that public disclosure of being discharged for sexual harassment when in fact an employee was not, can be detrimental to finding new employment. In fact, since their discharge, the officers each claimed that they had trouble finding new jobs or were forced to take lower paying, less challenging jobs.
The lesson for employees is to use extreme caution when disclosing the reasons for an employee’s discharge. It is rarely either necessary or appropriate without a signed authorization from that former worker. In instances where disclosure is appropriate, employers should be extra careful to accurately state the reasons for termination.
Cannon v. Village of Bald Head Island, N. Carolina, 891 F.3d 489 (4th Cir. 2018)
