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Local Governments and School Districts Blog

Retaliation Against a Public Employee for Giving Testimony is a No-No

Authored by Kevin J.T. Terry
Posted on June 25, 2014
Filed under Local Governments and School Districts

A recent decision by the United States Supreme Court has clarified a very murky area of the law. Statements by a government employee may or may not be protected speech based upon the content of the speech and the circumstances under which the statements are made. Generally speaking, statements by a government employee that clearly address matters of general concern about government activities would be considered protected speech and a local government could not retaliate against that employee for making those statements. On the other hand, statements by a government employee that are really focused on items of interest or impact the specific situation involving the employee would not be considered protected speech and thus the government employee could be subject to discipline (including termination) based upon those public statements. The standards must be applied with very careful review of the situation that has caused the public speech to be made by the government employee.

In the recent U.S. Supreme Court decision, it was held that statements made by a government employee when subpoenaed to give testimony in a hearing should be considered protected speech even though the statements are made about the government employee's workplace and are made during work time. The lower court held that the employer could take disciplinary action against the employee (termination in this case) based upon the content of the statements made, because the statements were made during work hours and involved accusations against a public official based on conduct the employee had knowledge of from the workplace. The seven justices held that these statements should be protected under the First Amendment because the statements were given during an administrative hearing and the government employee was under subpoena to come to the hearing and give that testimony. The Supreme Court held that retaliation against the employee in the form of dismissal when the employee was testifying under oath to information he was aware of should not be allowed and the speech/testimony should be considered protected speech.

Local government officials are most often better off not trying to discipline a public employee for political speech or public statements that are critical of local government activities. The use of social media, however, has made these types of public statements far more common and some justification exists for discipline depending upon the nature of the comments and the scope of the comments made. Public officials should not decide whether to take discipline without conferring with legal counsel about the protections that may exist under the state and federal constitutions.