Public employment law is different from private employment law or the employment law generally applicable to all employers. Public employers are subject to certain special limitations on the discipline and discharge of their public employees. In particular, public employers, because they are governmental entities, are subject to certain Due Process and First Amendment limitations on their ability to discipline or discharge their employees. Private employers are subject to no similar limitations. In Moen v. Town of Fairfield, 1998 ME 135 (June 3, 1998), the Maine Law Court decided in favor of a public employer in a case involving a discharged employee's claims of Due Process and First Amendment violations. A discussion of this case follows:

     The Facts Of The Moen Case

     The Plaintiff in the Moen case was a patrol sergeant in the Fairfield police department. The sergeant's immediate superior was the Police Chief. The sergeant was discharged by the Chief after the Chief learned that the sergeant had been secretly tape-recording his conversations with the Chief and he had been encouraging other police officers to secretly record their conversations with the Chief. When the Chief first learned of the misconduct, he placed the sergeant on administrative leave with pay pending investigation. During the investigation, the sergeant admitted his actions and met with the Chief four times to discuss the matter. At the last two meetings, the sergeant was accompanied by his union representative, and the union representative also spoke with the Chief twice on the sergeant's behalf. The Chief discharged the sergeant for undermining the Chief's authority, for encouraging disloyalty and disobedience, and because of the Chief's loss of confidence in the sergeant. The sergeant sued in Superior Court, but that court granted a summary judgment dismissing the case, and the Law Court affirmed that dismissal.

     The Due Process Claim

     The Due Process clause provides that a government entity may not deny an individual property without due process of law. In this case it was undisputed that the sergeant had a "property interest" or "tenure" in his continued public employment, so Due Process required that he be given notice and a meaningful opportunity to be heard prior to his discharge. The Court noted: "This pretermination hearing, however, need not be formal or elaborate, as long as the employee has the opportunity to tell his or her side of the story and explain why termination should not occur." The sergeant claimed that he had not been given an opportunity to tell his side of the story, but the Court decided that the employee's four meetings with the Chief, two of which were attended by the employee's union representative, and two additional union representative phone calls with the Chief, amounted to a "more than ample opportunity to be heard." The sergeant's Due Process claim was dismissed.

     The First Amendment Claim

     The sergeant argued that he was engaged in constitutionally protected speech when he encouraged other officers to secretly tape record their conversations with the Chief and he engaged in other conversations. The Court used a two-part analysis to determine whether the sergeant's speech was protected: First, did the speech involve "a matter of public concern?" Second, if so, did the public employer have a sufficient public service efficiency interest to outweigh the employee's interest, as a citizen, in commenting on a matter of public concern?

     Not everything a public employee says or discusses is automatically a matter of public concern. In Connick v. Meyers, 461 U.S. 138 (1983), the U.S. Supreme Court ruled that a public employee's comments about an office transfer policy, office morale, confidence in supervisors, and the need for a grievance committee were comments about internal office matters, not matters of public concern. Similarly, in Moen the Law Court ruled that the employee's comments about his desire for personal gains for himself or his fellow employees through improved employment benefits were not comments about matters of public concern. However, in Moen the employee had also commented on the need to obtain the assistance of the union to get improved benefits, and the Law Court ruled these comments were a matter of public concern under the Maine Labor Relations Act, which protects a public employee's right to form, join, or participate in a union.

     Balanced against the public employee's right to comment on a matter of public concern is the public employer's right to operate in an "effective and efficient" manner. The Law Court listed a public employer's possible valid interests as "(1) the need to maintain discipline or harmony among coworkers, (2) the need for confidentiality, (3) the need to curtail conduct that impedes the employee's proper and competent performance of [the employee's] daily duties, and (4) the need to encourage a close and personal relationship between the employee and his superiors, where that relationship calls for loyalty and confidence." The Court added: "When an employer's fulfillment of its public responsibilities requires close working relationships between coworkers, the employer will be given great deference with respect to its judgment concerning employee speech that threatens those relationships." The Court ruled that the sergeant's speech had compromised the sergeant's working relationship with the Chief and the Chief's relationship with the other officers, and that the Chief's interest in maintaining department effectiveness and efficiency outweighed the employee's interest in commenting on a matter of public concern. The employee's First Amendment claim was dismissed.

     COMMENT: The Moen case shows both (1) that public employers have to be more careful than private employers in employee discipline and discharge matters, and (2) that a careful public employer can discharge a public employee for proved misconduct and make the discharge stick. With regard to due process issues, all public employees do not have property interests in their continued public employment, but most do, so public employers should routinely follow the pretermination "notice and meaningful opportunity to be heard" process. With regard to First Amendment issues, public employers should know that employee free speech matters can sometimes be very difficult to assess, but the Moen case shows that a public employer may well have valid effectiveness and efficiency interests which outweigh any free speech interests a public employee may have. The language used in the Moen case to describe valid public employer interests and the deference due the operational decisions of public employers will be very useful to any public employer whose discipline or discharge of a public employee is challenged on First Amendment grounds.

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Dated: February, 2000
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