Bad facts make bad law. That said, it is hard to imagine a case sympathetic to a public employer where it discharged or dismissed an employee based on its incorrect belief that the employee engaged in constitutionally protected speech. Either way, the case the Supreme Court heard, and ruled against the public employer in, involved a son helping his bedridden mother.
In Heffernan v. City of Paterson, New Jersey the Supreme Court held 6-2 that a public employer violates the First Amendment when it acts on a mistaken belief that an employee engaged in First Amendment protected political activity. The State and Local Legal Center (SLLC) filed an amicus brief taking the opposite position.
The Court assumed the following facts in this case: Police officer Jeffery Heffernan worked in the office of the police chief. The mayor was running for reelection against a friend of Heffernan’s, Lawrence Spagnola. Heffernan was demoted after another member of the police force saw Heffernan picking up a Spagnola yard sign and talking to the Spagnola campaign manager and staff. Heffernan was picking up the sign for his bedridden mother.
The First Amendment generally prohibits government employers from discharging or demoting employees because they support a particular political candidate. Heffernan sued claiming he was demoted based on the police chief’s mistaken view that he engaged in First Amendment protected speech.
The Supreme Court agreed that Heffernan has a First Amendment claim even though he engaged in no political activity protected by the First Amendment. Justice Breyer, writing for the majority, concluded that the question in this case is whether the First Amendment right focuses upon the employee’s activity or the supervisor’s motive.
In Waters v. Churchill (1994) what mattered was the employer made a factual mistake. The employer mistakenly believed the employee engaged in personal gossip rather than protected speech on a matter of public concern. The Court upheld the employee’s dismissal focusing on the employer’s motive. “In Waters, the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here?”
Dissenting Justices Thomas and Alito opined that public employees have no remedy against public employers who attempt but fail to violate employees’ constitutional rights. “Demoting a dutiful son who aids his elderly, bedridden mother may be callous, but it is not unconstitutional.”
The SLLC amicus brief argued the 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 argued 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. Related to this point, the Court noted that some evidence in the record suggests that Heffernan was dismissed pursuant to a “different and neutral policy prohibiting police officers from overt involvement in any political campaigns.” The Court instructed the lower court to sort out whether such a policy existed, whether Heffernan’s supervisor followed it, and whether it is constitutional.
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.