Contrary to popular belief, Massachusetts courts are not the most liberal in the country. The courts can be downright conservative…when it comes to the rights of public employees, especially police officers. This observation is underscored by comparing treatment of police union speech in a recent case from Nebraska Supreme Court with a 1994 case from the Massachusetts Supreme Judicial Court. After all, SJC Justice Oliver Wendell Holmes, prior to serving as a Supreme Court Justice, famously quipped that police officers “may have a constitutional right to talk politics…he has no constitutional right to be a policeman,” McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220 (1892).
First, we provide a brief, simplified overview of protected speech. The right of public employees, especially police union officials, to speak their minds is not absolute. While the First Amendment is commonly thought to provide a “right to free speech,” the realities are far different. The First Amendment simply protects citizens from government interference in the exercise of speech. It does not, for instance, prohibit private employers or businesses from restricting speech of employees. Where public employees are involved, the employer is the government. The natural assumption is that public employees enjoy enhanced free speech protection compared to private sector employees. While this may theoretically be true, courts can narrow free speech rights for public employees.
Public employees generally have the right to free speech when their speech relates to a “matter of public concern.” Unfortunately, judges often do not view terms and conditions of employment as “matters of public concern.” Some complaints about internal corruption or incompetence, for instance, have been classified as not matters of public concern, and hence not entitled to free speech protection. Even when the public employee is speaking in his or her role as a Union official (and not on behalf of his or her pubic employer), the speech is protected only if the benefits of unrestricted speech outweigh any disruption experienced by the government employer as a result of the speech. As the U.S. Supreme Court stated:
The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. This consideration reflects the importance of the relationship between the speaker’s expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity’s operations.
Garcetti v. Cabellos, 47 U.S. 410 (2006) (citations omitted).
Public sector labor laws frequently grant additional protections to employee speech. Public employees generally are free to speak their mind as long as they are speaking about terms and conditions of employment. Unfortunately, the Massachusetts Supreme Judicial Court years ago narrowed this protection for certain public employees. In Plymouth Police Broth. v. Labor Relations Com’n, 417 Mass. 436 (1994), the SJC agreed with the Labor Relations Commission (now Commonwealth Employment Relations Board) that a union official had no statutory speech protections for an internal email to union members about a dispute over vaccinations described the local board of selectmen as “pigs, cheats, liars, whatever!!!!”
In contrast to the SJC’s crabbed view of protected public employee speech, in Omaha Police Union Local 101, IUPA, AFL-CIO v. City of Omaha (January 2, 2009) (http://www.supremecourt.ne.gov/opinions/2009/january/jan2/s07-1245.pdf), the Nebraska Supreme Court agreed that a municipality violated state labor law for disciplining a police union official as a result of a union article that criticized City procedures for 911 calls and characterized city officials as a “bunch of grown men and women, supposedly leaders, acting like petty criminals trying to conceal some kind of crime.” The police chief concluded that the article constituted “gross disrespect and insubordination,” and – surprise! – “conduct unbecoming an officer,” that old disciplinary chestnut. It should be noted that the official wrote the article after the Chief investigated the union president for allegedly advocating that union members ignore department protocols. (These charges were unfounded and the Chief was forced to exonerate the union president). Initially, the Chief terminated the article’s author. He later agreed to reduce the termination to a 20-day suspension and a reassignment. The Union then filed an unfair labor practice charge with a state labor relations agency, claiming that the disciplinary action violated state labor law’s protection for employees who engage in protected activity.
The Nebraska Supreme Court ruled that the City’s actions may be upheld only if the Union official engaged in “flagrant misconduct,” which it defined as “statements or actions that (1) are of an outrageous and insubordinate nature, (2) compromise the public employer’s ability to accomplish its mission, or (3) disrupt discipline.” The state labor relations agency found that the Union author’s conduct did not rise to this level and therefore qualified as protected speech under state law. The agency described the article’s statements as:
rhetorical hyperbole, which would not be reasonably believed by any reader as accusing of any crime or wrongdoing. They were intemperate, immature hyperbole, but they were nonetheless protected union speech in the context of the newsletter.
The Nebraska agency also found no evidence that the article caused the City to suffer any diminution in respect or operational efficacy. It doubted “the remarks would reflect poorly on anyone other than [the article’s author] and the newsletter’s editor.” The agency ordered the Department to buy an ad in the Union publication and state that the City recognizing the rights of union members to engage in protected activity. The Nebraska Supreme Court thereafter affirmed the agency’s decision, citing the principle of agency deference. The Court however took a swipe at the police union by suggesting that the Court may have ruled in favor of the City had the Court, and not the agency, reviewed the case in the first instance.