September 1, 2016 11:49 pm ET
It appears the “Office of Fred” is NOT social
Photo credit/ Baltimore County
You won’t read a lot of my words on this issue because The Office of Fred uses his own words instead.
I talked to a local attorney who referred to one of the country’s foremost authorities on the government’s attempt to control (stifle) free speech.
More on that latter in this column.
Before I get into Mr. Homan’s threatening message, I want you to read this recent statement from one of the most prestigious bastions of education on the topic of discourse:
The University of Chicago is an institution fully committed to the creation of knowledge across the spectrum of disciplines and professions, firm in its belief that a culture of intense inquiry and informed argument generates lasting ideas, and that the members of its community have a responsibility both to challenge and to listen. Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law and former Provost of the University, captures this ethos in his July 2012 statement of the aspirations of the University of Chicago:
Hopefully you read the either of the two link’s to this important U of C position.
Now, here is the Homan version:
From: Fred Homan
Sent: Monday, August 22, 2016 12:06 PM
To: County-Wide Broadcast <email@example.com>
Subject: Updated Public Political Discussions/Personal Interactions
Though public political discussions seem to have gotten more coarse and nasty of late, public employees have a special duty to speak respectfully to the public and colleagues. This pertains to our personal interactions and the things we write or even “like” on social media platforms like Facebook and Twitter. Even when we speak in our personal capacity as private citizens, it is likely known that we are also 911 call takers, Correctional Officers, Fire Fighters, Police Officers and County employees generally who serve the residents of Baltimore County. County residents must be assured that in working for their safety or simply providing an array of services we will not engage in discrimination based on race, color, gender, religion, creed, ancestry or national origin, age, marital status, sexual orientation, gender identity, physical or mental disability, or political opinion. We owe our colleagues the same duty.
(Now that is a rather absurd remark from Homan considering the lawsuits filed over the county ADA violations)
In the possible absence of voluntary compliance with this obvious ideal, the County’s Personnel Rules have long provided a clear prohibition:
Rule 15.04. The following subsections and other acts not specifically enumerated herein involving conduct which is clearly contrary to common sense and decency may be sufficient cause for removal, provided that all classified county employees shall be protected from any arbitrary, capricious, or illegal termination of loyal career service except for cause:
C. That the employee has been brutal or offensive in his treatment of the public or fellow employees.
To date, enforcement of this provision may have been spotty. No longer. Violations of this Rule will be dealt with swiftly and with a level of severity appropriate to the offense.
Employees must understand that not everything they say in their private capacities is protected free speech under the First Amendment. Case law is clear that speech by public employees receives less constitutional protection than speech by private citizens. There is a clear (though not always easy to apply) test for determining whether something you said to a county resident or county colleague or that you post on social media is protected:
Whether the public employee was speaking as a citizen on a matter of public concern or as an employee about a matter of personal interest.
Speech about a matter of public concern is protected free speech but the protection is not absolute. The government employer may also consider whether the employee’s interest in speaking upon a matter of public concern outweighs the government’s interest in providing effective and efficient services to the public.
A few examples of speech that is not protected may be useful:
· An employee who insinuates that any member of the public will receive less service from the county for any reason is subject to removal.
· An employee who uses brutal, offensive or derogatory language to describe another employee or member of the public is subject to removal.
· An employee who insinuates or advocates violence toward a member of the public or other county employee, or any other unlawful act, is subject to removal.
Supervisors will be held accountable for enforcement of Rule 15.04.C. Failure to enforce the section will also result in disciplinary action including removal.
It is not our intention to eliminate humor or free political expression from your personal lives. This zero tolerance policy is being implemented with the hope that Baltimore County employees can lead the way in appreciating the differences in our county and our country.”
Due to the length of these two contrasting fields of thought, I will focus on just a few issues stemming from Homan’s interpretation of discourse.
Granted, these are two entirely different areas of discourse; however, there is a chilling effect from the intimidation and retaliatory tone of Homan’s email.
I question whether or not this is legal, but that conversation will have to wait for part II of this blog.
Nonetheless, there appear to be some “buzz words” in Homan’s email that drew my attention:
“…being implemented with the hope that Baltimore County employees can lead the way in appreciating the differences in our county and our country.”
My interpretation of that statement is that all liberal thoughts are accepted and more moderate to conservative ones will now come under scrutiny.
Here is another comment that drew my attention:
“The government employer may also consider whether the employee’s interest in speaking upon a matter of public concern outweighs the government’s interest in providing effective and efficient services to the public.”
How does this apply to whistle-blowers and their duty to expose corruption?
There is more to the censorship issue than meets the eye. In fact, I am now personally encountering censorship from certain media groups and a elected official.
I digress on that for now.
Getting back to the issue at hand, let’s look at this Homan statement:
“Case law is clear that speech by public employees receives less constitutional protection than speech by private citizens.”
With that said, here are some thoughts from one of the country’s foremost authorities on the topic:
Rule: The government may not fire an employee based on the employee’s speech if
1. the speech is on a matter of public concern, and
2. the speech is not said by the employee as part of the employee’s job duties, Garcetti v. Ceballos, 547 U.S. 410 (2006), and
3. the damage caused by the speech to the efficiency of the government agency’s operation does not outweigh the value of the speech to the employee and the public (the so-called Pickering balance). Connick v. Myers (1983) (p. 567).
• Thus, if the speech is on a matter of private concern, or the speech is said as part of the employee’s duties, the government can do what it pleases.
• Likewise, if the government prevails on the Pickering balance, it can do what it pleases.
Related rule: The government generally may not discriminate based in employment or contracting based on the employee’s membership in an expressive association. Elrod v. Burns, 427 U.S. 347 (1976) (firing); Branti v. Finkel, 445 U.S. 507 (1980) (firing); Rutan v. Republican Party, 497 U.S. 62 (1990) (applying Elrod and Branti to hiring);O’Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996) (applying the government employee cases to government contracting decisions).
The gentleman’s name is Eugene Volokh—a law professor who, along with other members of the legal profession, writes about these sensitive topics.
Here is a recent article from the Washington Post that shows the Supreme Court ruled on behalf of government employees’ right to free speech.
In my final analysis of this matter, Mr. Homan has overstepped this authority.
Based on that, I have one final question to pose to Mr. Homan:
“Mr. Homan, can you fire yourself?”
Not only has your conduct regarding the handling of ADA cases violated the crux of your entire email, but your personal conduct within the confines of the county office buildings would violate everything you demand of others.
Rather hypocritical, Mr. Homan—don’t you think?