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© 2014 Zuckerman Spaeder LLP

Don’t Mess With The Lawyers (Or Other Public Employees), Part 2‎

In the first part of this series, we raised the question of whether a public employee’s rights under the First Amendment to the Constitution – primarily the right to speak freely on public issues – is limited by the fact that she works for the government.  It’s the curious mix of the Constitutional rights we all enjoy, and the duty of the government to act as an employer when it hires and manages people to get things done.  We looked briefly at how the Supreme Court addressed this issue: in short summary, public employees keep their rights to free speech on issues of public concern – but when they are speaking as part of their official duties, or their speech creates a disruptive atmosphere for the government agency, the employee can be fired for speaking out. 

Two recent cases dealing with deputy attorneys-general illustrate this difficult intersection between public employment and speech.  In both cases, the attorneys – a breed not known for silence – lost their jobs for speech: one for speaking out, and the other for refusing to speak when she was told to do so.  Let’s see how their cases against their public employers are faring. 

Speaking out:  Thomas Kimmett v. Corbett

Thomas Kimmett is an attorney.  He was hired as the deputy attorney general for Pennsylvania in charge of its Financial Enforcement Section.  That unit collected debts and unpaid taxes owed to Pennsylvania.  Some debts it collected on its own, and others were collected by private collection agencies working on commission.  In Kimmett’s view, this was a problem: the private agencies sometimes held the money they collected and didn’t pay Pennsylvania any interest; other times, as he saw it, the collection agencies were being paid commissions for debts they hadn’t collected. 

Kimmett spoke out about this problem.  First, he went to his superiors, who in his opinion swept his concerns under the rug.  Then, he went outside the office, raising these issues with another Pennsylvania department and the Team Pennsylvania Foundation, a non-profit group “created… to bridge the gap between government and the private sector to allow both sides to partner for the betterment of the Commonwealth of Pennsylvania.”  

His career went on to the slow track, and in Kimmett’s view, his speaking out led to losing out on promotions.  He filed an action in federal court against his superiors, some of his colleagues, and the Pennsylvania Attorney General, alleging in part that the denial of promotion amounted to a violation of 42 U.S.C. § 1983, a keystone federal law that provides liability for anyone who “under color of” any law deprives a person of any Constitutional or other rights.  In this case, Kimmett argued his bosses were depriving him of promotions he was entitled to because he exercised his First Amendment rights.  He also alleged the defendants violated the Pennsylvania Whistleblower Act, and defamed him.  Soon after he filed suit, Kimmett was fired because, his bosses said, his suit was creating a disruptive atmosphere in the office.

Both sides moved for summary judgment on their claims.  On April 22, a judge in the Middle District of Pennsylvania ruled that Kimmett could pursue his whistleblower and defamation claims against some of the defendants, but that his 42 U.S.C. § 1983 claim for violation of his First Amendment rights had to be dismissed

In doing so, the judge started with the same cases we did in the first part of this series: Pickering v. Board of Educationand Garcetti v. CeballosApplying the test from those U.S. Supreme Court cases, the court determined first that Kimmett’s speech was not just part of his job (the issue in Garcetti), but went beyond his job because the proper management of Pennsylvania’s money was a matter of concern.  From there, it moved to the heart of this balance: was the attorney general of Pennsylvania within his rights as an employer to dismiss Kimmett, when Kimmitt was speaking as a member of the public on a public issue?

Yes, in fact, the attorney general was right, the court held. Kimmett’s lawsuit and his speaking out about the management of debt collections “impaired discipline by superiors or harmony among co-workers.”  “One cannot dispute,” the court wrote, “that accusing one’s co-workers publicly of fraud would have a detrimental impact on the close working relationships for which personal loyalty and confidence are necessary.”  In other words, Kimmett had a right to speak, and he was speaking on an important issue – but by suing his bosses and colleagues he was being something of a workplace jerk about it. 

Refusing to Speak: Weatherspoon

Speaking of workplace jerks, our next vignette is full of them. 

But first, meet Ginger Weatherspoon.  She practices family and divorce law in Texas.  That’s a tough practice for any attorney, but Ginger seems able to handle it – in this Star-Telegram article she appears rather calm and collected after someone fire-bombed her office (!). 

Perhaps that response is a sign that Ms. Weatherpoon is not the sort of person who will go along willingly when she’s told to say something she vehemently disagrees with.  That’s what apparently happened in 2008, when Weatherspoon was an assistant attorney general for the State of Texas in its Child Support Division. 

Weatherspoon got caught in a battle between the Texas Attorney General and a Texas judge, David Hanschen.  Hanschen apparently lets men facing child support orders to challenge those orders using DNA tests to determine paternity.  The Texas Attorney General disagrees with that policy. 

According to Weatherspoon, this conflict ultimately resulted in two of her bosses demanding she sign an affidavit that purported to summarize a discussion she had with Judge Hanschen.  Weatherspoon didn’t think the affidavit characterized the discussion right, so she refused to sign it.  She refused to speak, in other words.  And this was important: the affidavit apparently would have accused Judge Hanschen of judicial misconduct. 

Her superiors didn’t take no for an answer.  They told her it was a direct order. They had her come to a supervisor’s office and one of them pounded his fists on the table. They even said the Texas Attorney General himself was waiting for her signature.  The two bosses refused to let their own boss into the room to mediate the situation.  Weatherspoon and another attorney ultimately fled the building, with the bosses calling her on her cellphone and ordering her to come back and sign the affidavit.  All of these allegations are recorded in Weatherspoon’s complaint for violation of the Texas Whistleblower Act, which she filed when the Attorney General’s office began, in her view, to retaliate against her for refusing to speak.  (Ironically enough, the Texas Whistleblower Act is illustrated in this poster produced by, uhh, the Texas Attorney General). 

At this point, Ms. Weatherspoon’s case is going forward.  Last month, the Texas court where she filed suit denied the Attorney General’s motions to dismiss, and noted that, at least from her complaint, Weatherspoon “in good faith made reports of alleged violations of the law,” a necessary predicate to her suit. 

If there’s an award for toughness under fire from tough bosses, Weatherspoon would – from her complaint – win it.  We’ll keep watching whether she ultimately wins her case against the Texas Attorney General, though. 

In any event, lessons from these two cases for public employees (and employers) include: 1) employees keep their First Amendment rights to speak when they take government jobs; but 2) the government is allowed some room to keep its operations free from disruptive speech; and 3) it’s best to try not to be workplace jerk when you’re speaking out – for instance, suing your colleagues as Mr. Kimmett did enabled his employer to say he was disrupting the workplace.  Who wants to work with someone who has sued them? 

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