Q: My employer—a Business Improvement District—had a regularly scheduled board meeting that per our contract with the City must be open to the public. Thirty minutes before the meeting the executive director sent me home, due to my failure to respond to a text message while on my lunch hour.
In the past, myself and other board members have made public comment during the open public comment time at the beginning of meetings. At yesterday’s meeting I was planning to make a public comment.
When I was asked to leave the meeting because of a personel issue, I stepped outside the room of the meeting with the expectation that, that issue would be discussed the following day.
I reentered the meeting room later to make my public comment, at which point the Executive Director approached me, asked why I was still there, and asked me to leave. I told him I was there for the public comment portion, and would be leaving after the public portion. The ED then proceeded to ask me to leave and escort me out.
I am writing to find out how I can address the boards denial to allow me to express my First Amendment rights during a public meeting. And find out what can be done to prevent future instances such as the one I’ve described. This organization has a history of Brown Act violations that go back as far as 2009 and beyond.
As an employee I am also concerned that asking them to correct this issue, could put my employment at stake.
A: At a minimum, it sounds like your right under the Brown Act to merely attend the meeting (putting aside any intent you may have had to address the board) may have been violated. The result of your being prevented from attending the meeting was that not only were you not able to observe the district board’s deliberations on various matters that are of public concern, but you were prevented from addressing the board during the public comment period. If the executive director prevented you from attending the meeting because he wanted to stop you from addressing the board, this may be what is known in First Amendment law as a prior restraint – i.e., preventing an individual from exercising his or her First Amendment rights. Just because you are an employee of the district doesn’t mean the executive director automatically can prevent you from speaking at these meetings.
If you had spoken at the meeting, and then were somehow disciplined because of what you said, whether or not that would amount to a First Amendment violation is a little more nuanced and fact specific. Some background on the First Amendment and how it applies to government employees might be helpful to understanding what your rights might be in this situation.
The First Amendment, with some exceptions, generally prevents the government from limiting citizens’ speech. Employers, with some exceptions, generally have the ability to limit what their employees can say on behalf of the company or while engaged in work functions. Thus, an interesting dynamic is generated when, as in your situation, the government is the employer.
As a threshold matter, it is important to note that citizens do not surrender their First Amendment rights by becoming government employees. The First Amendment is binding on public institutions. See Widmar v. Vincent, 454 U.S. 263, 268–69 (1981) (“With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities.”); Healy v. James, 408 U.S. 169, 180 (1972) (internal citation omitted) (“[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’”).
That said, employees may be limited in what they say on behalf of the governmental agency with which they are employed. Considerations include whether the employee was speaking on a matter of public concern and whether the employee spoke as a private citizen or public employee. See Dahlia v. Rodriguez, 735 F.3d 1060, 1066-67 (9th Cir. 2013). If you were being prevented from making official statements on behalf of the district, it may be that such restrictions are permissible. Likewise, if you intended to speak to the board about matters that are of concern to you in connection with your employment, then it may be restrictions on your speech are permissible.
For example, in one 9th Circuit case, an employee who aired concerns about workplace safety within his chain of command was speaking as an employee, and not a private citizen, and therefore could not bring a First Amendment claim against his employer. Hagen v. City of Eugene, 736 F.3d 1251, 1259 (9th Cir. 2013).
On the other hand, if you intended to speak out on a matter of public concern, such speech may be protected under the First Amendment (and any retaliation in the employment context taken against the public safety official could violate that employee’s First Amendment rights). In another 9th Circuit case, the court found that a police officer who voiced concerned about systemic police abuse and corruption to individuals outside her chain of command, and was subsequently retaliated against by her employer, was exercising her First Amendment right to free speech, and therefore her employer’s actions against her were illegal. Heath v. City of Desert Hot Springs, 618 F. App’x 882, 885 (9th Cir. 2015). As you can see, the inquiry is necessarily fact specific.
Of course, in the situation you describe, you were never given the opportunity to address the board in the first place, which raises serious concerns pursuant to both the Brown Act and the First Amendment.
The Brown Act does provide for enforcement, the details of which can be found on the FAC’s website here. If you continue to be prevented from attending these meetings, you might also consider engaging an attorney to explore what your rights may be.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.