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First Amendment
Update: Court Reinforces Public Employees’ Free Speech Rights
Michael McGill
Lackie & Dammeier, APC
In an era where
public employees have continually seen their Constitutional rights
slowly whittled away, it’s reassuring to be able to present a case where
courts have not departed from such traditional thought. One such case
is Victorville Professional Firefighters Association v. City of
Victorville, CV 06-3935. In this recent decision, a federal court
held that a local ordinance aimed at limiting public employees’ right to
communicate with city council members, even when off-duty, was
unconstitutional.
The ordinance, found
in the City of Victorville’s municipal code, stated that “it was
unlawful” for any employee “to meet with, communicate with, or discuss
with any one or more members of the city council regarding any aspect of
employer, employee relations except in a duly called public meeting of
the city council.” The ordinance effectively prevented all public
employees, including public safety unions and their representatives,
from speaking with, or discussing any matters “related to their
employment” with city council members, except during open session at a
city council meeting. The ordinance was nothing more than a clever
attempt to keep its employees and union members in line, and stop them
from bringing complaints about management directly to the council’s
attention.
The 31-year old
ordinance lay dormant until the past year, when the city manager for the
City of Victorville brought it to the union’s attention, threatening to
enforce it if union members spoke with city council members. Until that
time, it was relatively unheard of. After personally being threatened
with discipline, Victorville Professional Firefighters Association
President Marty Brown contacted Lackie & Dammeier to discuss the union’s
rights.
After identifying
the flaws in the ordinance, Lackie & Dammeier contacted Victorville
officials, and provided them with the opportunity to avoid costly and
needless litigation by voluntarily repealing the unlawful ordinance.
Not surprisingly, the City refused. A federal complaint was promptly
filed in the Central District alleging, among other things, that the
ordinance violated the employees’ First Amendment right to engage in
free speech with their duly elected council members. The Association
further asserted that the ordinance was overbroad, since it prevented
union members from speaking to city council members even when off-duty,
when acting in their capacity as a regular citizen.
The City did not
back down, and refused to recognize the flaws in its law. Instead, the
City went on the offensive, filing a motion to dismiss the Association’s
complaint, arguing that it had the unfettered right to restrict employee
speech. The City’s position was that it could lawfully restrict its
employees’ speech activities, regardless of where it occurred and when
it was made. The City believed that it had the ultimate authority to
restrain its employees, regardless of the circumstances.
The federal court
swiftly denied the City’s motion, reinforcing the fundamental principle
that “public employees do not surrender all their First Amendment rights
by reason of their employment.” This principle, which has been the
subject of recent attack in courtrooms across the country, recognizes
that the “First Amendment protects a public employee’s right, in some
circumstances, to speak as a citizen addressing matters of public
concern.” The Court ruled that speech related to employer/employee
relations, the very same speech prevented by the ordinance, was clearly
a matter of public concern. Because the speech was clearly protected,
the City was left with the burden to demonstrate that the ordinance was
necessary. The City was unable to present a shred of evidence
substantiating the need for the ordinance, and their motion was denied.
Stubbornly, the City
refused to admit defeat. As litigation continued, the Court advised the
City in no uncertain terms that it intended to strike the law down as
unconstitutional. At one point, the judge warned the City that “I don’t
think there is more than a five percent chance that any judge in this
country would decline to knock it out as unconstitutional on its face
and overrule it.” The City was indifferent, telling the Court that it
intended to proceed with litigation. This was not surprising since,
after all, the taxpayers would be footing the bill.
The parties moved
forward and through discovery the Association learned that the City had
no evidence that the alleged “threat” (Association members speaking with
city council persons), had ever caused any disruption or problems to the
City. On that basis, the Association filed a motion for summary
judgment, asking the Court to grant its request to strike the ordinance
as unconstitutional. The Association claimed that the ordinance was
simply not necessary and altogether eliminated the Free Speech rights of
these public employees, without any reason. The City opposed the
motion, making virtually the exact same arguments in made in support of
its prior motion to dismiss. The Court was unimpressed with the City’s
defense, and rejected their arguments, again. As a result, the Court
ruled the ordinance unconstitutional, and permanently enjoined the City
of Victorville from violating the Association members’ constitutional
rights by enforcing the ordinance.
In ruling as it did,
the federal court reinforced the fading principle that public employees
do possess certain fundamental constitutional rights, including the
right to speak with their duly elected city council members.
Communication is not a bad thing, and this decision encourages that.
While this lawsuit was brought on behalf of the Association and its
members, the decision affects the rights of every employee of the City.
As a result of this litigation, these public employees are free to now
exercise their Free Speech rights. Victorville President Marty Brown is
most happy with the decision, because it allows him to continue carrying
out his duties representing his Association and its members’ best
interests.
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