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Chris Van Drimmelen SDAD 580: Higher Education Law March 13, 2013 Case Scenario #6

2 Issues This case involves several different issues related to a public employee exercising their first amendment rights outside of the workplace. The employee in question, Frank, can only be terminated for cause, ergo he has a property interest in retaining his employment which cannot be denied without due process. I see three central issues to be resolved: 1. Was Franks involvement in the Occupy movement protected by the First Amendment? 2. Did Frank receive proper due process before termination? 3. Were Franks actions that he took after termination, specifically speaking with the student newspaper and the subsequent publication of those remarks protected? Occupy Involvement Per Pickering, a public employee may speak freely on matters of public interest, as long as they do not knowingly or recklessly make false statements, without being removed from their position. While Franks involvement with Occupy may have been uncomfortable for the University, employees do not have to give up all First Amendment protections as a condition of employment, particularly since the issues addressed by Occupy are distinctly of public interest. Frank was advised that it would not be good for the University for [him] to be seen as publicly associated with the movement, which may constitute a warning, however Frank made good faith efforts to comply with this advice even though he, strictly speaking, did not have to. Franks involvement alone is not cause for his dismissal. Furthermore, Garcetti clarifies the Supreme Courts ruling in Pickering stating that a public employee may be dismissed or held accountable for speech made pursuant to their employment. After being advised not to be publicly associated with the movement, Frank took care to be discrete with in-person meetings and to use only personal equipment to

3 communicate with his Occupy colleagues. Where Frank runs afoul of Garcetti is when he makes statements about fleecing university donors in order to educate more recruits for Occupy. Regardless of the fact that it was made on an ostensibly private Facebook group, this statement has a direct link to his duties as a development officer for the university, and therefore carries no First Amendment protection. Frank could be held accountable or terminated for these types of statements. Due Process Per Loudermill, a public employee who may only be terminated for cause must be given proper due process before termination. Since Frank is such an employee, he must be given a Loudermill hearing, which requires prior written notice of charges so that the employee may provide a meaningful response and then be given a hearing with opportunity to give his side of the story and correct any factual mistakes. While Frank was provided with written notice of a meeting with the Vice-President of Business & Finance, he was not notified of any charges against him, nor indeed that he might be terminated at the meeting at all. The VP presented Frank with evidence of Franks statements on the Occupy Facebook group and gave Frank a brief opportunity to respond. This meeting does not completely satisfy the provisions laid out in Loudermill. After his termination, Frank is also entitled to a formal hearing, which the Universitys Grievance Procedures satisfy. Speech Post-Termination Frank also made statements after his termination, but prior to his post-termination hearing that he could also be held accountable for. While Franks contact with the editor of the student newspaper may or may not have been appropriate, the contact was made ostensibly as a friend,

4 so there is little the University could reasonably do to interfere, despite the VPs advice that Frank have no contact with the paper. Frank, however, would have done well to heed this advice because in the course of the conversation, he agreed to give statements about his termination to be published in the paper. Again, per Garcetti, statements made pursuant to employment carry no First Amendment protection. Franks eagerness to be viewed in a favorable light in the student papers article led him to make more statements that related to his (now former) job as a development officer, which he can be held accountable for. Recommendations As chair of the Grievance Committee, I recommend overturning Franks termination on the grounds that Frank was not given a proper pre-termination hearing. Frank was not given notice of any charges against him, and therefore not able to provide an effective response per Loudermill. Frank was deprived of his due process rights in this case and should therefore be reinstated. Despite the fact that Frank should be reinstated for the time being, I also strongly recommend that the University consider bringing disciplinary action against Frank for his statements made to the student newspaper prior to his post-termination hearing (this time with a proper Loudermill hearing). If the first set of statements on Facebook pursuant to his employment were sufficient for the University to wish to terminate Frank, the second set to the student paper are likely equally so, particularly after he was specifically told not to speak to the paper by the Vice-President.