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The Ohio Patrolmen's Benevolent Association (O.P.B.A)

Some Tough Mudders

(from left to right:  Aaron Lieb, Matt Page (front), Gary Haba (back) Andy “John J. Rambo” Calvey, Mark Sahley (middle), Brian Ryks, Rich Kemer (front), Jerry Chase (back) & Manus McCaffery.

“Tough Mudder events are hardcore 10-12 mile obstacle courses designed by British Special Forces to test your all around strength, stamina, mental grit, and camaraderie. As the leading company in the booming obstacle course industry, Tough Mudder has already challenged half a million inspiring participants worldwide and raised more than $2 million dollars for the Wounded Warrior Project. But Tough Mudder is more than an event, it’s a way of thinking. By running a Tough Mudder challenge, you’ll unlock a true sense of accomplishment, have a great time, and discover a camaraderie with your fellow participants that’s experienced all too rarely these days.”
(The above was quoted from the Tough Mudder web site.)

Gary Haba, Brian Ryks, Andy “John J. Rambo” Calvey, Matt Page, Rich Kemer and Aaron Lieb are  members of the Beachwood Police Dept. and participated in the Tough Mudder event along with Manus McCaffery (Sgt. Wickliffe PD),  Marc Sahley (Cleveland Fire Department) and Jerry Chase, a friend of them all.   All 9 team members trained tirelessly for the event.  On April 15, 2012, I had the pleasure of photographing the event for the team.  Watching them go through the course was simply “inspirational.”   Individually, all members of the team worked together to ensure that all members completed the course as a team. It was amazing watching not only the team but all participants in the event struggle though the course and not give up.   As a spectator, I could almost feel the excruciating pain each participant felt digging deep within, not only physically but emotionally and the feeling not of relief but of a sense of accomplishing something bigger than themselves and conquering it.  This is similar to the mission of the “Wounded Warrior Project.”  Well done to all and to all who participated, you will always be “One Tough Mudder” acting as one!”

(This above paragraph was written by Jamey Appell, a Beachwood Police Officer who left the event wondering and wishing he knew that feeling the participants had when they crossed the finish line.   The finish line is only as far away as you make it and how you get there is your own destiny to discover.)     

 

Social Media in the Workplace Part 2


Scenario:  Officer X posts on his public Facebook page the following comment:  “Fellow citizens of City, it is unfortunate that your wasteful Chief of Police and spineless City Council members have refused to fund the purchase of new tactical weapons for the police department.  This decision will someday lead to certain harm for the citizens of City.”  Officer X is terminated.  

I indicated in my previous article related to recent trends in the social media and the workplace (OPBA Police Beat, Volume 33, Number 2, Summer 2011) that there were potential 1st Amendment issues with regard to employer policies.  Many employers have instituted social media policies that restrict or limit a public employee’s ability to criticize, denigrate or voice any opinion about the employer.  This is seen, from the eyes of the employer, as insubordination or conduct unbecoming.  For the most part, the courts have upheld discipline or termination for certain employee speech and by virtue of these decisions, placed reasonable limitations on the public employees right to speech (conduct is also considered a form of speech).  Speech or conduct that disrupts or interferes with the public employer’s efficient and effective operation is punishable regardless of the 1st Amendment protection afforded the average citizen.  The Supreme Court has held, “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom.” See, e.g., Waters v. Churchill (1994), 511 U.S. 661, 671, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994) (plurality opinion) ("[T]he government as employer indeed has far broader powers than does the government as sovereign").  Government employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services.  Connick v. Myers (1983), 461 U.S. 138, 142, 103 S. Ct. 1684 ("[G]overnment offices could not function if every employment decision became a constitutional matter").  

However, the Supreme Court has adopted a standard to determine whether a public employee’s speech is protected speech or unprotected and subject to discipline.  The Supreme Court has held that the Constitution's First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.  Under the First Amendment, (1) the speech restrictions that a government entity imposes in its role as employer must be directed at speech that has some potential to affect the entity's operations; and (2) so long as public employees are speaking as citizens about matters of public concern, such employees must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.  See Garcetti v. Ceballos  (2006), 547 U.S. 410 at syllabus; 126 S. Ct. 1951.  “Thus, two inquiries guide interpretation of the constitutional protections accorded to public employee speech.  The first inquiry requires determining whether the employee spoke as a citizen on a matter of public concern.  If the answer is no, then the employee has no First Amendment cause of action based on his or her employer's reaction to the speech.  If the answer is yes, then (1) the possibility of a First Amendment claim arises, and (2) the question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” Garcetti at 418, citing Pickering v. Board of Educ. (1968), 391 U.S. 563, 88 S. Ct. 1731.  However, “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, at 421.    

The Court reasoned that, “The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions.  See, e.g., Rankin v. McPherson (1987), 483 U.S. 378, 384, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (recognizing "the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment").  Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance."  Connick, 461 U.S., at 154.  

The Court has gone on to note in Borough of Duryea v. Guarnieri  (2011), 131 S. Ct. 2488, 2501, that a petition that “involves nothing more than a complaint about a change in the employee's own duties” does not relate to a matter of public concern and accordingly “may give rise to discipline without imposing any special burden of justification on the government employer.” United States v. Treasury Employees (1995), 513 U.S. 454, 466, 115 S. Ct. 1003.  “The right of a public employee under the Petition Clause is a right to participate as a citizen, through petitioning activity, in the democratic process. It is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts.” Duryea, at 2501.  

So back to our scenario regarding Officer X, is the speech protected under the First Amendment so that Officer X can be reinstated or is it unprotected and Officer X’s termination will be upheld?  Every case involves different facts and circumstances, but how would you decide?





 

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