Insurrection or Duty: When Government Employees Speak

By Johnston, William W. | Texas Review of Law & Politics, Spring 2000 | Go to article overview

Insurrection or Duty: When Government Employees Speak


Johnston, William W., Texas Review of Law & Politics


I. INTRODUCTION

Our country was founded by outspoken patriots. Why then are many government employees reluctant to speak their minds on today's important issues? How did their free speech rights change when they accepted a paycheck from the government? While a public employee's speech may be restricted by law, the decision to speak is entirely personal.

I was raised to respect authority. My father, who spent most of his career as an Assistant District Attorney in Dallas, taught me that public criticism of one's employer was simply not the way to handle a problem.1 There were other ways, he said. Private discussions, either directly or through "go-betweens" (the Texas version of a mediator), were the desired practice. My father explained to me that when one publicly questioned a supervisor, disrespect often befell both parties. These instructions were well founded in his experience. He took an almost "Atticus Finch" approach to disputes. That is, he picked his battles carefully and was subtle in confrontation. In a small, well-intentioned bureaucracy, his style was perfectly appropriate. It was not necessary to publicly air differences in such situations. To do so would have caused dissension within the "family" of workers.

My father's guidance in dispute resolution was of little help tv me as an Assistant U.S. Attorney in the Department of Justice in the 1990s. In 1993, a few days after the Branch Davidian raid near Waco, and again after pyrotechnic evidence was discovered by the Texas Rangers in 1999, I faced a troubling question. What does one do in a large, layered bureaucracy like the Department of Justice when an important matter is not being candidly addressed by government officials?

While the professional values that my father taught me continued to guide my choices, his approach to handling workplace disputes was perhaps a little too genteel for the sprawling bureaucracy of the Department of Justice. As frustration piled upon frustration, I came to realize that I must take action that would not please all my colleagues and superiors. In doing so I would be forced to rely on the free speech rights protected by our Constitution-rights protected even for those employed by the government.

II. RIGHTS AND RESTRICTIONS OF PUBLIC EMPLOYEE SPEECH

A. The Breadth of Speech Permitted is Related to the Job Held by the Speaker

A public employee's right to free speech is generally protected as long as it addresses a matter of public concern and the employer has no overriding interest in efficient public service that would be undermined by the speech.2 Not only are full-time employees afforded this level of protection for their speech, but part-time and volunteer workers are as well.3 The employee's right to speak is therefore subject to a balancing of interests. How these interests are weighed depends largely upon the type of work performed by the public employee.4

Those in public higher education are allowed the most freedom of expression.5 At the other extreme, some positions of public employment may be so sensitive, and the need for confidentiality so great, that even completely correct public statements by an employee might be grounds for dismissal.6 Near that pole is Crandon v. State.7 Crandon involved an attorney who served as general counsel to the Office of the State Banking Commissioner in Kansas.8 She alleged that a Deputy Commissioner within her agency had violated the agency's ethics code, as well as state and federal banking laws, when she allegedly received loans from state-regulated institutions.9 After reporting her claims to the Federal Deposit Insurance Corporation (FDIC), the reporting attorney was fired by the State Banking Commissioner.10 Because of her position as chief counsel, the attorney's first obligation was to her client-the organization.11 The Commissioner deserved and needed to enjoy a close working relationship with his counsel. …

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