Monday, November 25, 2013

Keep it to yourself

Public employee Adreina Adams was not happy with how things were going at the State Division of Parole, where she worked as a parole officer in Manhattan. She took her grievances public and spoke out before the State Assembly. She suffered a variety of negative employment actions over this, and she then took her grievance to federal court, which says she did not speak out on a matter of public concern and therefore does not have a case.

The case is Adams v. Ellis, a summary order decided on October 23. Very little in the Constitution is more complicated than First Amendment litigation. There is a balancing test for every First Amendment problem; nothing is absolute. In the public employment context, it's not free speech (for which you cannot be punished) unless it addresses a matter of public concern, as shown by the content, form and context of the speech. There is no easy way to untangle a three-part balancing test. That is what depositions are for.

The district court ruling tells us what happened. New office procedures made life a hassle in the workplace. Employees had to adhere to strict attendance and accountability rules, and parole officers had to personally collect supervision fees that parolees used to send in by mail. A new computerized management system was also installed. Testifying on these procedures at the State Assembly, plaintiff said these new rules "negatively impacted their ability to do their jobs properly, thereby 'putting safety of the community at risk.'"

Speaking before a public body certainly makes the context of the speech a public affair, but that does not end the inquiry. The content of plaintiff's speech was strictly personal, the Court of Appeals (Parker, Hall and Livingston) says. "The Court gives consideration to the fact that plaintiff spoke at a hearing sponsored by the State Assembly, but ... forum is not determinative, and the public forum of plaintiff's remarks does not make them matters of public concern if they are essentially private complaints about office policies." These grievances were of no interest to anyone outside the workplace. While plaintiff said these new procedures put the public safety at risk, "a plaintiff does not transform her essentially personal grievances into matters of public concern by announcing that her grievances relate to broader issues." In other words, we can couch the speech as a matter of public concern, but the courts will see if that's really true. 

In the district court ruling, Judge Castel notes that the stated subject of the hearing, "The Policies and Practices of the Division of Parole as it Carries Out its Responsibilities in the Supervision on Persons Released from Prison" gives no hint that it would address traditional matters of public concern, "like discrimination, corruption, or even crime rates, staffing, budgets or equipment shortages." Now, I am sure the title of this public hearing did not cause the taxpayers to line up overnight for a front row seat. The policies of the Division of Parole must be of some interest to the public. But plaintiff's speech was not, and that's why her First Amendment claim is dismissed.

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