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The First Amendment Protects Public Employees Right to Run for Public Office: Or At Least It Should

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Public employees’ constitutional rights are important. Recent figures suggest that sixteen million Americans — more than 10 percent of the nation’s workforce — are employed by a state or local government, with another two million, approximately, employed by the federal government. With the economic downturn, even more workers are moving from the private sector to typically more secure public sector jobs. See, e.g., “Despite Downturn, Federal Workforce Grows; Stimulus Plan Expected to Increase the Ranks at State, Local Levels,” MSNBC News Report, January 31, 2009 (http://www.msnbc.msn.com/id/28952802/). Simply put, public employees are a major and growing part of our workforce. However, public employees’ rights are now vulnerable, after the recent decision in Greenwell v. Parsley, 541 F.3d 401 (6th Cir. 2008).

In Greenwell, a deputy sheriff was fired because he ran for sheriff against the incumbent. The Sixth Circuit in Kentucky held that such a firing does not implicate the First Amendment, relying on an earlier precedent from that court which said that “[t]he First Amendment does not require that an official in [an employer’s] situation nourish a viper in the nest.” Id. at 404 (citing Carver v. Dennis, 104 F.3d 847, 850-53 (6th Cir. 1997)). [1] Other circuits disagree, and rightly conclude that a public employee’s candidacy for office should be protected to at least the same degree as a public employee’s political speech. See, e.g., James v. Texas Collin County, 535 F.3d 365 (5th Cir. 2008); Finkelstein v. Bergna, 924 F.2d 1449 (9th Cir. 1991); Flinn v. Gordon, 775 F.2d 1551 (11th Cir. 1985); Washington v. Finlay, 664 F.2d 913 (4th Cir. 1981); Newcomb v. Brennan, 558 F.2d 825 (7th Cir. 1977); and Magill v. Lynch, 560 F.2d 22 (1st Cir. 1977).

The Greenwell plaintiff recently petitioned for the Supreme Court to overturn the 6th Circuit, in light of the 6th Circuit’s clear split with other Circuits on this issue. See Petition for Certiorari, 77 USLW 3619 (Apr 27, 2009) (No. 08-1328). The Supreme Court should grant review (certiorari) because “citizens are not deprived of fundamental rights by virtue of working for the government.” Connick v. Myers, 461 U.S. 138, 147 (1983). Running for office is a fundamental right.

The Supreme Court’s seminal decision in Pickering v. Bd. of Educ., 391 U.S. 563, 573, 88 S.Ct. 1731 (1968), set forth a balancing test for public employees’ First Amendment rights in the workplace. More recently, in 2006, the Supreme Court acknowledged, in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951 (2006), “Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees ‘like any member of the general public,’ [citing Pickering], to hold that all speech within the office is automatically exposed to restriction.” Garcetti, 126 S.Ct. at 1959. Greenwell seemingly eliminates the Pickering balance, reiterated recently in Garcetti.

There are four issues that warrant Supreme Court review of the Greenwell decision’s divergent holding: 1) whether a public employee may be prevented from speaking on a matter of public concern without balancing the interests of the employee, as a citizen, in commenting upon matters of public concern; 2) whether a public employee who communicates an intent to run for office has engaged in protected First Amendment speech; 3) whether a public employee can be fired based on the employee’s political affiliation even when that affiliation is irrelevant to the performance of the employee’s job; and 4) the depth of public employees’ First Amendment protections generally.

1. Public employees’ interests – as citizens – must be given weight.

Greenwell’s reactionary result – that the employer’s interest is all-encompassing and that the employees’ rights need not enter into the balance at all – erodes Pickering and its progeny to the point of meaninglessness. Certainly, the Supreme Court will undoubtedly find, an employee whose hostility to his employer (a public officeholder) reaches the level of insubordination, can be properly removed. See, e.g., Curran v. Cousins, 509 F.3d 36, 49 (1st Cir. 2007) (citing Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1290 (11th Cir.2000)) (speech done in a vulgar, insulting, and defiant manner is entitled to less weight in the Pickering balance). But there still must be some balancing in this analysis.

2. The Court should not construe narrowly what kinds of public employees’ communications engender constitutional protection.

Contrary to Greenwell’s result, “speech on public issues occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.” Connick, 461 U.S. at 145. After Greenwell and the 2006 Garcetti decision, a public employee cannot expect protection if he/she responsibly disagrees with the employer regarding a matter of public concern within the scope of his/her duties, nor if he/she tries to shift policy by dislodging the public officeholder. Essentially, this would leave a public employee devoid of the protection envisioned by Connick – unable to change a bad regime and stuck in it, without recourse, unless he/she is willing to sacrifice secure employment and the ability to provide for his/her family.

3. The right to run for office is encompassed in the right to political association.

The Supreme Court has previously held that “[t]he First Amendment protects political association as well as political expression,” and that “[t]he right to associate with the political party of one’s choice is an integral part of this basic constitutional freedom” of association. Elrod v. Burns, 427 U.S. 347, 357 (1976) (plurality opinion) (quoting Buckley v. Valeo, 424 U.S. 1, 15 (1976) (per curiam). Those who devote their life to public service should not be deprived, contrary to Connick, the basic rights provided other citizens.

4. The Supreme Court should reaffirm the breadth of public employees’ constitutional protections.

Greenwell is particularly important because, despite the favorable language in Garcetti about treating public employees like members of the general public with respect to First Amendment expression, that 2006 Supreme Court decision may have raised doubts about the depth of public employees’ constitutional rights. In Garcetti, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti, 126 S.Ct. at 1960. Public employees need the Court, in reviewing Greenwell, to reestablish the strong First Amendment protections they still have on the job. See, e.g., Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 414, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979).

[1] The concurrence in Greenwell by Circuit Judge Boyce Martin invites Supreme Court review of both Greenwell and Carver. Judge Boyce’s strong language in his concurrence is compelling (rivaling Carver’s viper imagery): he described Carver, upon which Greenwell relied, as “a stray cat that hangs around the door and infests the house with fleas,” stating that Carver “continues to plague this Court’s jurisprudence. As such, we are bound by its conclusion.” Greenwell, 541 F.3d at 405-406.

Bryan Schwartz: Bryan Schwartz is an Oakland, CA-based attorney specializing in civil rights and employment law.

This article was originally posted on Bryan Schwartz Law on May 21, 21009 and is reprinted here with permission from the author.

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Using Company Email to Communicate with Your Employment Lawyer

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The sanctity of the attorney-client relationship is a fundamental pillar of our legal system, recognized throughout the public and private sector. “[T]he attorney-client privilege is the oldest privilege recognized for confidential communications at common law and is intended ‘to encourage full and frank communications between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice.’” Grimes v. Dept. of Navy, 99 M.S.P.R. 7, 11 (2005) (quoting Upjohn Co. v. United States, 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981)). “The attorney-client privilege protects confidential disclosures made by a client to an attorney in order to obtain legal advice,…as well as an attorney’s advice in response to such disclosures.” United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996) (quotation omitted), cert. denied, 520 U.S. 1167, 117 S.Ct. 1429, 137 L.Ed.2d 538 (1997). The attorney-client privilege falls into the class of absolute privileges. Swidler & Berlin v. United States, 524 U.S. 399, 409, 118 S.Ct. 2081, 141 L.Ed.2d 379 (1998). If you are engaged in an attorney-client relationship with counsel at the time of particular communications, then an absolute privilege should apply to those communications.

However, what if you learn that your employer, either intentionally or inadvertently, has come into possession of attorney-client emails sent through a work email account? First, if you learn that attorney-client communications or attorney work product documents are in the employer’s possession, you should immediately seek return of such communications. You should advise the employer that you consider the documents to be attorney-client privileged communications (and possibly attorney work product privileged as well). You should be clear that it is not your intention to waive any attorney-client, work product, or other privileges that apply to these documents.
You can also remind your employer that, under Fed.R.Civ.P. 26(b)(5)(B), after being notified of an inadvertent disclosure of privileged information, “a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim.” “Once a party claims the attorney-client privilege, the communication sought to be suppressed is presumed confidential.” La Jolla Cove Motel and Hotel Apartments, Inc., v. Superior Court, 121 Cal.App.4th 773, 791 (2004) (citing Cal.Evid.Code, § 917).
Generally, you can put your employer on notice that the ethical canons of the legal profession preclude the employer from searching intentionally to discover privileged information in an employee’s email account, knowing that such information is subject to an asserted or very likely attorney-client or work-product privilege. Such would include all communications between an employee and his/her employment lawyer. The American Bar Association’s Standing Committee on Ethics and Professional Responsibility, “Formal Opinion 92-368: Inadvertent Disclosure of Confidential Materials (1992),” makes clear that counsel should not seek to review information it has reason to believe was inadvertently disclosed.
If the employer is trying to hold against you something you discussed with your employment attorney on a company email system, you should also remind the employer that privileged communications do not lose their privileged character because they are communicated electronically. See California’s Evidence Code § 917(b). See also, e.g., 18 U.S.C. § 2517(4) (wiretap law recognizing that electronic communications may have privileged character); Kintera, Inc. v. Convio, Inc., 219 F.R.D. 503, 514 (S.D. Cal. 2003) (applying attorney-client privilege to email communications). However, attorney-client privilege can be waived, and if the privilege is waived, then those communications may be fair game for employers to use.
The “sacred” attorney-client privilege can be waived “implicitly” only under rare, defined circumstances (see Bittaker v. Woodford, 331 F.3d 715, 718-721 (9th Cir. 2003)), such as (for example) in a legal malpractice action, where the attorney-client communications are directly placed at issue in the litigation. On the other hand, an “express waiver occurs when a party discloses privileged information to a third party who is not bound by the privilege, or otherwise shows disregard for the privilege by making the information public.” Id. at 719. By communicating to the employer seeking return of disclosed information immediately after learning of its disclosure, you convey a strong desire to maintain the privilege. On the other hand, if you forward your attorney’s email to someone else not involved in the attorney-client relationship, you have likely implicitly waived the privilege as to that particular communication.
It is the present policy of Bryan Schwartz Law to communicate as little as possible, or not at all, with clients on their work email, because, at the very least, it creates a headache in subsequent litigation when an employer inadvertently discovers attorney-client communications and tries to use them in the case. However, I believe strongly that privileges between employees and their attorneys – not to mention, prisoners emailing their attorneys, and other attorney-client email relationships – would be of little value if, by disclaimer, “Big Brother” could simply deem all communications via particular media as non-confidential, such that privilege would be waived inherently and broadly. Many employees in the workforce do not have private email apart from their work email accounts, and thus would not be able to email their attorneys at all. Perhaps all work email (not only that of the employer against whom a party is litigating) – by virtue of the fact that a non-attorney administrator can access it – would be unprivileged, including all emails sent by attorneys to clients from the attorneys’ own law firms’ email accounts. By this rule, all of the emails between the employer and the employer’s own attorneys regarding your case would also be unprivileged, because privilege was waived when they utilized the company’s email system. Perhaps all email sent via Gmail, Yahoo, Comcast, SBC, and Hotmail would also be unprivileged, since there are no doubt skilled individuals who can access our emails sent via these services as well.[1]
In sum, while the danger of inadvertent disclosure during discovery makes attorney-client communications by work email not a “best practice,” it does not mean that all attorneys and all clients who communicate via a work email have waived their sacred rights. In practice, many or most employers tolerate usage of work email for some personal uses. If the employer demonstrated a widespread enforcement of a “no personal use” policy, such that you and individuals known to you were being routinely counseled and disciplined for using their email to send greetings to spouses or friends, or, if the employer’s email system generally prevented outside emails all together, then perhaps you would be on clear notice that your emails were being monitored and would have a reasonable belief they were non-confidential. However, just because we are aware in the abstract that someone (like a forensic software examiner or technology specialist) could figure out how to probe our email accounts, is not the same as knowing that each of our emails is being actively monitored. By way of contrast, when one calls a credit card company, the phone system indicates on every call that you are “being monitored and recorded for quality and training purposes” – which might defeat an expectation of privacy/confidentiality. See also Cal. Evid. Code. §917(b). In many cases, there is no indication that employees know that each of their emails are being individually monitored. An employee of an employer with hundreds or thousands of employees worldwide need not assume that every communication he/she has with anyone about anything is being read by individuals who are not the intended recipients of the communication.[2]
Even if you could ever have reasonably expected the employer to learn that you did exchange some emails with your attorney while at work (i.e., the identities of your addressees), you would have no reason to believe that the employer at the direction of legal counsel would overtly violate legal ethical obligations by seeking to review the substance of communications known to be between a client and his/her counsel.
Your communications with counsel via work email arguably maintain their privileged character, and should not be employed by the employer against you.
[1] It is no doubt possible for technologically-gifted individuals to listen to attorney-client communications via telephone, too, and yet courts have found that individuals have a reasonable expectation of privacy in their phone conversations. Quon v. Arch Wireless Operating Co., Inc., 529 F.3d 892, 904 (9th Cir. 2008) (citing Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (“One who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.”). Before Katz, courts had found that communications by United States mail could also be entitled to confidentiality/an expectation of privacy. Quon, 529 F.3d at 905 (citing United States v. Jacobsen, 466 U.S. 109, 114, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). Email (and text message) plays a role today like the phone booth and the U.S. mail have played in the past, and the content of messages transmitted via these media can have a reasonable expectation of privacy and confidentiality. Quon, 529 F.3d at 905-906 (citing United States v. Forrester, 512 F.3d 500, 510 (9th Cir. 2008)).
[2] Without having statistical or expert data on point, my experience suggests that virtually every client, co-worker, and friend whose work email permits sending to and receiving from outside parties does have personal communications from time to time on this email system, which he or she does not expect to be read by non-addressees at the employer.
Disclaimer: Nothing in this posting is intended in any way to form an attorney-client relationship or any other contract. It is designed solely to provide general information about one area of the practice at Bryan Schwartz Law. Be mindful of any deadlines you have approaching that relate to your legal situation, and make sure that you meet them. Bryan Schwartz Law does not assume any responsibility for advice given regarding any aspect of your case until you have a signed legal services agreement engaging the firm’s representation.

Bryan Schwartz: Bryan Schwartz is an Oakland, CA-based attorney specializing in civil rights and employment law.

This article originally appeared on the Bryan Schwartz Law Blog on april 22, 2009. It is reprinted here with permission from the author.

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Just Because It’s a Layoff, Doesn’t Mean You’re Out of Options

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In this down economy, many employers are undergoing layoffs of workers. Certainly, it can be harder to prove that your termination was discriminatory or retaliatory when many others are suffering the same fate as you are. But ask yourself this: was the layoff legitimately based upon financial reasons, and if so, why were you chosen?

As the California Supreme Court has explained, “Invocation of a right to downsize does not resolve whether the employer had a discriminatory motive for cutting back its work force, or engaged in intentional discrimination when deciding which individual workers to retain and release.” Guz v. Bechtel National, Inc., 24 Cal.4th 317, 358, 100 Cal.Rptr.2d 352 (2000). See also, e.g., Miller v. Fairchild Industries, Inc., 885 F.2d 498, 506 (9th Cir. 1989) (jury could find retaliation in layoff which employer claimed was based on decline in workload, where employee provided contrary testimony and where other employees were not similarly laid off); Cones v. Shalala, 199 F.3d 512, 519-520 (D.C.Cir. 2000) (holding that a jury could have concluded that the agency’s explanation for not promoting the African-American plaintiff, downsizing, was inconsistent with its decision to promote three white co-workers, and hence a pretext for discrimination); Cichewicz v. UNOVA Indus. Automotive Systems, Inc., 92 Fed.Appx. 215, at **5 (6th Cir. 2004) (downsizing explanation insufficient to warrant summary judgment where there was evidence of pretext). If you were chosen for layoff over someone not of your protected classification who was less qualified, then you may still have a viable claim regarding your termination.

In a case in which I argued this last month against a summary judgment and summary adjudication motion, the employer – a relatively small company – laid off five workers, including my client, who was 50 at the time. My client was the only worker of his classification laid off, and a number were retained – including some who were similar in age to my client, and some who were ten or more years younger. I was able to distinguish my client from several workers of similar ages because they worked in different regions (geographically) than he did. Yet, the company was at first unable to present a legitimate, non-discriminatory reason for retaining the younger workers instead of my client. When the company did present reasons other than age, they were only vague and non-specific ones (e.g., management felt that my client would be “less missed”), which (to the extent they meant anything at all) my client could readily refute.

Moreover, there were numerous instances in which a key decision-maker in the layoff had told my client that he felt the company needed to “get younger,” and that older workers cost the company more in benefits and wages, among other statements. This evidence suggests that the company’s weak reasons stated for choosing my client for layoff were just a pretext (or phony reason to cover up) for age discrimination. “With direct evidence of pretext, a triable issue as to the actual motivation of the employer is created even if the evidence is not substantial. The plaintiff is required to produce very little direct evidence of the employer’s discriminatory intent to move past summary judgment.” Morgan v. Regents of University of Cal. (2000) 88 Cal.App.4th 52, 68, 105 Cal.Rptr.2d 652 (citing Chuang v. University of California Davis, Bd. of Trustees (9th Cir. 2000) 225 F.3d 1115, 1127.

Based on the evidence I presented, Bryan Schwartz Law (http://www.bryanschwartzlaw.com/) and my co-counsel learned that the Court intends to deny the company’s effort to defeat the age discrimination claim arising from the layoff, allowing my client to proceed to trial to overturn his termination.

If you are notified of a layoff, think twice before assuming that you are out of options.

Disclaimer: Nothing in this posting is intended in any way to form an attorney-client relationship or any other contract. It is designed solely to provide general information about one area of the practice at Bryan Schwartz Law. Be mindful of any deadlines you have approaching that relate to your legal situation, and make sure that you meet them. Bryan Schwartz Law does not assume any responsibility for advice given regarding any aspect of your case until you have a signed legal services agreement engaging the firm’s representation.

About the Author: Bryan Schwartz is an Oakland, CA-based attorney specializing in civil rights, employment law. Call today – (510) 444-9300 – or send an email: Bryan@BryanSchwartzLaw.com

This article originally appeared in Bryan Schwartz Law on March 31, 2009. Re-printed with permission by the author.

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