Kentucky Advisory Opinions February 25, 2002: OAG 02-002 (February 25, 2002)

OAG 02-002.

Opinion of the Attorney General

We have been asked by State Representative, John W. D. Bowling, whether a city can lawfully prevent city employees from speaking with candidates during working hours. Attached to Representative Bowling's letter is the first two pages of a January 17, 2002, memorandum from City Manager Steve Biven. This memorandum directs all city employees, in part, as follows:

. . . please advise any candidates that ask you to discuss your job with them, while you are at work, that they must first see the City Manager. All inquiries as to your job function etc.. need to be run through me. All request for documentation should also come to my attention, so that I can determine if the Kentucky Open Records Act applies and if a cost of our time and material needs to be passed on to those who are occupying our time. I will try to keep you from having to be caught up in the middle of any political activity. You may simply state that 'the City Manager has asked us to direct you to him for assistance.'

While wanting to be cooperative and polite, we do not want to allow individuals to interfere in your work activity and make your job anymore difficult than it has to be. It is not your responsibility to educate candidates as to the function of city government or to accommodate them into your schedule.

The question raised by State Representative Bowling implicates issue of infringement of the First Amendment right of speech by municipal governmental workers. The appropriate legal analysis applicable to the First Amendment rights of government workers has been well articulated by federal district court judge, D. Brook Bartlett, from Missouri as follows:

A. The Applicable Standard: The Pickering/NTEU Balancing Test

Individuals do not automatically relinquish their First Amendment rights by accepting government employment. Keyishian v. Board of Regents , 385 U.S. 589, 605-06, 87 S. Ct. 675, 684-85, 17 L. Ed. 2d 629 (1967). At the same time, however, the Supreme Court has recognized that legislatures 'may impose restraints on the job-related speech of public employees that would be plainly unconstitutional if applied to the public at large.' See United States v. National Treasury Employees Union , 130 L. Ed. 2d 964, 115 S. Ct. 1003, 1012 (1995) (NTEU) (explaining that Congress possesses the constitutional authority to restrict federal employees from participating in certain speech activities). Therefore, to determine the validity of a restraint on the speech of government employees, a court must 'arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' Pickering v. Board of Education , 391 U.S. 563, 568, 88 S. Ct. 1731, 1734-35, 20 L. Ed. 2d 811 (1968).

In order to qualify for the protection of the Pickering balancing test, government employee speech must involve 'matters of public concern.' See Connick v. Myers , 461 U.S. 138, 146, 103 S. Ct. 1684, 1689-90, 75 L. Ed. 2d 708 (1983). A government employee's speech addresses a matter of public concern when it can be 'fairly considered as relating to any matter of political, social, or other concern to the community.' Watters v. City of Philadelphia , 55 F.3d 886, 892 (3rd Cir. 1995).

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. . . the government's burden is greater with respect to a broad based restriction on expression than with respect to an isolated disciplinary action. Id.; see also Forsyth County, Georgia v. Nationalist Movement , 505 U.S. 123, 112 S. Ct. 2395, 2401, 120 L. Ed. 2d 101 (1992) (explaining that there is a 'heavy presumption' against the validity of a prior restraint). The government must show that the 'necessary impact on the actual operation' of government outweighs the interests of present and future employees and their potential audiences in unrestrained public employee speech on issues and candidates in City elections. Pickering , 391 U.S. 563, 571, 88 S. Ct. 1731, 1736; NTEU , 115 S. Ct. at 1014.

Goodman v. City of Kansas City, Missouri, 906 F.Supp. 537, 541 (W.D. Mo. 1995). See generally, 'Validity, construction, and effect of state statutes restricting political activities of public officers or employees,' 51 ALR4th 702.

Here, City Manager Steve Biven seeks to restrict city employees during their working hours from discussing their job functions with political candidates. It is, at best, tenuous whether this type of speech involves "matters of public concern." In other words, it is questionable whether restricting city workers' discussion of their job function with candidates during working hours may be "fairly considered as relating to any matter of political, social, or other concern to the community." Watters , 55 F.3d at 892.

Furthermore, city employees are not restricted from discussing their job function with political candidates during non-working hours; hence the restriction is limited in its application, notwithstanding the restriction's broad application to all city employees.

Assuming that this minimal and limited restriction on First Amendment rights of city workers does involve "matters of public concern," city government can justify this restriction by demonstrating that the City's interest in "the effective and efficient fulfillment of its responsibilities to the public" outweighs the city workers' interest in unrestrained speech. Connick , 103 S.Ct. at 1691.

It is evident that this restriction is based, at least in part, on city government's desire to operate city government on an apolitical basis. ("I will try to keep you from having to be caught up in the middle of any political activity.") This restriction is also based, at least in part, on the desire that city employees not be distracted from performing their job duties and responsibilities by responding to verbal inquiries from political candidates. ("[W]e do not want to allow individuals to interfere in your work activity and make your job anymore difficult than it has to be. It is not your responsibility to educate candidates as to the function of city government or to accommodate them into your schedule.") Attachment to Representative Bowling's January 17, 2002, letter, pp. 1-2.

These are legitimate governmental interests that are advanced by this limited restriction on city workers' speech during their working hours. In our opinion, this minimal restriction on city workers' speech is lawful because it is outweighed by city government's legitimate and significant interests in operating city government effectively and efficiently.

There are, of course, limits to the government's ability to restrict its employees' freedom of speech, particularly if the restriction applies outside the employees' hours of work or is overly broad in its application. For example, see, Rogenski v. Board of Fire & Police Commissioners, 3d Dist., 6 Ill App 3d 604, 285 NE2d 230, (1972) (a police captain who had discussed politics with an elderly woman while he was on duty could not be dismissed from the police department for violating a regulation which prohibited all members of the force from discussing politics, ruling that the regulation in question violated the police officer's right to freedom of speech ); Michigan State AFL-CIO v. Michigan Civil Service Commission, 455 Mich. 720, 566 N.W.2d 258, 155 L.R.R.M. (BNA) 3029 (1997) (civil service rule prohibiting use of union leaves of absence for partisan political activity violated First Amendment); and Louthan v. Commonwealth, 79 Va. 196 (1884), (public employee could not be discharged for violating a state statute which provided that it was unlawful for certain public employees to actively induce or procure, or attempt to induce or procure, directly or indirectly, any qualified voter to vote for or against any candidate or party, or to participate actively in politics or make political speeches because the statute constituted an unconstitutional infringement on the employees' right to freedom of speech).

Albert B. Chandler III

Attorney General

Bill Pettus

Assistant Attorney General