REPRINTED

FROM TENNESSEE: Sometimes City Employee Comment to Press Policies Violate First Amendment; Restraint on Press

Updated 37 weeks ago Special to HuntingtonNews.Net
FROM TENNESSEE: Sometimes City Employee Comment to Press Policies Violate First Amendment; Restraint on Press

By Carol Chumney, Special to HNN (reprinted)

City leaders walked back part of the new media relations policy requiring reporters to be personally escorted through City Hall. Yet, the policy still requires interviews to be cleared with the communications director, and employees to notify their director of any contacts with a reporter.

The lack of transparency promised is a serious concern for the public, as well as for public employees threatened with discipline or discharge for a policy violation. The new policy may also bring an expensive price tag from employee lawsuits based on violation of their constitutional right to free speech.

As an attorney, I represented a former employee against the city of Memphis for alleged wrongful termination. Handy Clay was the gatekeeper for open records requests as the city's public records coordinator during the administration of former mayor A C Wharton. She contended, among other things, that there was an entrenched culture at City Hall that led to the concealment of information from the public and disclosure of only the bare minimum needed to comply with any given public records requests. She also raised concerns with the city attorney and city's Equal Employment Opportunity office about workplace abuses, such as employees stealing time.

In an effort to get to the truth about the misuse of time, she submitted her own open records requests. The next day she was terminated, although the city contended her free speech was not the reason.

Ultimately, the case was settled by the city of Memphis. The U.S. Supreme Court held in Garcetti v. Ceballos, 547 U.S.410 (2006) that a public employee has a First Amendment right, under certain circumstances, to speak as a citizen on matters of public concern. This right also protects the "public's interest in receiving the well-informed view of government employees engaging in civic discussion."

To constitute free speech, the comments must be made as a private citizen, involve a matter of public concern and the employee's interest in speaking on the matter must outweigh the municipality's interest as an employer in promoting the efficiency of the public services it performs through its employees.

Because Clay's job duties did not include reporting on government corruption or misuse of public funds, the U.S. 6th Circuit Court of Appeals, in a decision now cited more than 100 times in other court opinions, found that her complaint had met the threshold to show that her speech was a matter of public concern. (Handy Clay v. City of Memphis, etal, 695 F.3d 531 (6th Cir. 2012).

On remand, the district court further held that the employee's open records requests were protected activity. (Handy Clay v. City of Memphis, et.al., 2013 U.S. Dist. LEXIS 134071.)

While there are differing opinions, some would argue that a policy requiring all requests for interviews to be forwarded to a communications director constitutes an unconstitutional prior restraint. The new city policy further prohibiting employees from "posting or making comments as a representative of (the city)" appears to prohibit an employee from even posting hours a community center opens on social media without fear of termination.

Although the policy does not expressly state a specific ban on unofficial comments of public employees, the new procedures require that employees notify the division director of any contact with the media related to city business. How will the public be notified of public corruption if employees cannot even talk unofficially to the press without notifying their boss who may be the one that is committing the abuse? While a reasonable media policy is expected, the public has a right to know what's going on at City Hall.

Carol Chumney is a former Tennessee state representative and Memphis City Council member.

Comments powered by Disqus