You can’t make this stuff up. Really. But that doesn’t mean it is unconstitutional.
In Heffernan v. City of Paterson, New Jersey the State and Local Legal Center (SLLC) Supreme Court amicus brief argues that a government employer’s perception that an employee has exercised his or her First Amendment rights cannot be the basis for a First Amendment retaliation lawsuit.
Officer Heffernan was assigned to a detail in the Office of Chief of Police. He was reassigned after he was seen picking up a campaign sign for the current police chief’s opponent.
The First Amendment protects non-policymaking public employees who support a candidate in an election. Officer Heffernan maintains that he was in no way involved with the police chief race. The sign wasn’t for himself; it was for his bedridden mother.
Officer Heffernan’s claims he was retaliated against based on the City’s perception he was exercising his First Amendment free association rights. He points to lower court precedent holding that public employees may bring First Amendment retaliation claims if an adverse employment action is taken because they remain politically neutral or silent.
The Third Circuit concluded Heffernan could not bring a perceived free-association claim because he wasn’t retaliated against for “taking a stand of calculated neutrality.” Instead, he was demoted on a “factually incorrect basis.” The Supreme Court has held that it does not violate the Constitution to discipline an employee based on incorrect information. To bring a First Amendment claim an employee must engage in First Amendment speech protected conduct, which Officer Heffernan failed to do in this case.
The SLLC amicus brief argues the Supreme Court need not find a constitutional claim exists when an employer misperceives that an employee has engaged in political speech. Collective bargaining statutes, “just cause” protections, civil service statutes, and statutes protecting against interference or attempts to interfere with any individual’s civil rights would prevent a state or local government employer from lawfully taking an adverse employment action in such circumstances.
The SLLC amicus brief also argues that if the Court were to hold that the First Amendment covers perceived First Amendment violations, it should clarify that the First Amendment does not protect political speech made by employees in sensitive and confidential positions, such as Heffernan.
Collin O’Connor Udell and Anne Selinger, Jackson Lewis, wrote the SLLC brief which was joined by the National Conference of State Legislatures, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the International Public Management Association for Human Resources, and the National Public Employer Labor Relations Association.