Georgia County Government - January/February 2013 - (Page 33)

Counties&TheLaw Avoiding First Amendment Liability in Employee Discipline By Don Benson and Michael Pruett F ew employment decisions can be as confusing to analyze as when a county government disciplines an employee in violation of his or her free speech or whistleblower protection. Consider this example: A county employee comes to a commission meeting to complain that the road in front of his house is badly in need of repair. If the employee is a bailiff, his speech is probably protected by the First Amendment because the subject that he is addressing has nothing to do with his job and he is speaking purely as a citizen. On the other hand, if the same complaint is made by an employee of the road department, who also claims that his boss is doing a bad job of road maintenance and that he suggests better ways to address concerns that his boss rejected, his speech might be unprotected and subject to disciplinary action. This situation in Georgia has become even more complex with the recent passage of the Georgia Taxpayer Protection False Claims Act. Georgia Whistleblower Protection In May 2012, Georgia enacted a new Georgia Taxpayer Protection False Claims Act, which grants protection to local public employees who report a fraudulent practice of local government that costs taxpayer money. The new law protects federal, state and local employees and officials. A whistleblower employee, contractor or agent is entitled to “all relief necessary to make that employee, contractor, or agent whole if that employee… is discharged, demoted, suspended, threatened, harassed or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee… in furtherance of a civil action under this Code section or other efforts to stop one or more violations of this article.” It is also possible that the employee’s lawyer will try to craft First Amendment protections based on violations of due process or equal treatment based on the state’s whistleblower rights. First Amendment Protection for Employee Speech The U.S. Supreme Court recognized that a public employee’s free speech rights have to be “balanced” against the public employer’s need to run an efficient operation Pickering v. Bd. of Ed., 391 U.S. 563 (1968). Although few hard guidelines emerged under this test, courts generally gave fairly wide deference to the public employer. In 2006, the U.S. Supreme Court added a new threshold inquiry to the Pickering analysis. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Court held that a prosecutor who criticized the circumstances under which a warrant was issued made his statements as a public employee and not a public citizen. Consequently, his statements were not protected by the First Amendment and his civil liberties were not violated when the office passed him over for a promotion due to his statements. The Court never reached the balancing test of Pickering, because if the employee’s speech was part of his official duties, then it was not public speech. First Amendment protection applies, the Court said, only when employees speak “as citizens,” and not when they speak “pursuant to their official duties.” Unpredictability in Applying the Garcetti Test The federal courts, including those is circuits outside the jurisdiction of the 11th Circuit Court of Appeals in which Georgia is located, have repeatedly held that statements relevant to job duties are made as public employees, rather than as private citizens. However, applying this principle to specific cases has not always yielded predictable results. In Davis v. McKinney, 518 F.3d 304 (5th Cir. 2008), the Circuit Court held that the defendant’s statements about the University of Texas Health Science Center in Houston’s pay for vice presidents, statements to the FBI about child COUNTIES&THELAW continued on page 34 SPRING 2013 33

Table of Contents for the Digital Edition of Georgia County Government - January/February 2013

President's Message
Director's Desk
Chatham County: Cultivating Opportunities to Grow Investments
2013 ACCG Annual Conference Preview
Eight Annual Georgia County Excellence Awards
County Government : Emergency Management Agencies: Prepared Today for Tomorrow's Disaster
Federal Update: The Fiscal Cliff: What's in the Final Deal and When's the Next One Coming?
Counties & the Law: Avoiding First Amendment Liability in the Employee Discipline
System for Taxing Motor Vehicles to Change March 1
News & Notes
Index of Advertisers

Georgia County Government - January/February 2013