Q: I am awaiting the results of an arbitration hearing. I am not very optimistic about the results of the hearing. The results are to come in about 45 days.
What happened is this, I put my application in for a move up to the varsity coaching job while serving as the junior varsity coach. I soon discovered that the former coach who had retired from teaching was going to continue as varsity coach. I asked the superintendent why he had flown the position as open. He said it was a “just in case” announcement.
I asked to speak to the board of trustees about the matter. After I spoke to the board, the local newspaper published my remarks. The varsity coach did not appreciate my remarks and complained to the administration. The administration recommended to the board that I be fired from my junior varsity position.
I was disappointed that my union-appointed attorney did not argue for my right to free speech at the board meeting. Do you think I have a chance for appeal should the arbiter choose not to support my grievance against the District for firing me as junior varsity coach and denying an interview for the varsity position?
A: Government regulation of employee speech implicates First Amendment issues and is sometimes unconstitutional.
The question usually boils down to the “‘balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.'” Connick v. Myers, 461 U.S. 138, 140 (1983), quoting Pickering v. Board of Educ., 391 U.S. 563, 568 (1968).
Courts considering government employee speech issues first ask whether the speech at issue “addressed a matter of public concern.” Kirchmann v. Lake Elsinore Unified School Dist., 57 Cal. App. 4th 595, 601 (1997). If the speech concerns a matter of public concern, “we must balance [the employee’s] interest in making her statement against the interest of the [employer] in ‘”promoting the efficiency of the public services it performs through its employees.”‘” Id., quoting Rankin v. McPherson, 483 U.S. 378, 384-85 (1987).
The same balancing test applies to statements by public employees to the press. See Mt. Healthy City School Dist. Brd. of Ed. v. Doyle, 429 U.S. 274 (1977) (citing the balancing test to determine whether a telephone call made by a public teacher to a radio station concerning the school’s memorandum on teachers’ dress code was protected speech).
In essence, therefore, government employers have some latitude to regulate employee speech, but the degree of latitude depends on the facts of the particular case, with particular focus on the connection between the speech and matters of public interest and the extent to which the regulation might be necessary for the functioning of the government office involved.
As you can see, the answer to your question would ultimately requires a complex and highly fact-specific analysis that is beyond the scope of what we can provide through this service. Because of the specialized law governing a public agency’s punishment of speech by public employees, you may want to speak with an attorney with expertise in that areas. Here is a link to the state bar’s web page where you can search for attorneys for the requisite experience: http://members.calbar.ca.gov/fal/MemberSearch/FindLegalHelp
You may also be able to find an attorney to assist you through the First Amendment Coalition’s Lawyer’s Assistance Request Form at https://firstamendmentcoalition.org/legal-hotline/lawyers-assistance-request-form/.