Political appointee fired for comment on gays

[J. Noble]

At 4:53 PM -0500 6/17/06, Paul Finkelman wrote:
>Hard to imagine how a political appointee, talking about "politics" 
>on a "activist" tv. show is speaking as a "private citizen."

It's not an activist TV show. It's just a current affairs panel 
discussion, where Smith discusses public issues with, among others, 
Michael Gildea, the Director of the AFL-CIO's Professional Employees 
Department. He was described by the producer of the show as an 
"activist Republican," much as Gildea might be described as an 
activist Democrat. No one is suggesting that he was speaking as a 
board member on behalf of the Washington Metropolitan Area Transit 
Authority; or on behalf of the Governor, who he has no official 
association with except as his appointee to WMATA's independent, 
non-political board, aside appointees by the DC mayor and VA 
governor. His job was to make the trains run on time. It would seem 
to be an even easier case if the Governor hired him to manage the 
state budget instead of appointed him to manage WMATA's budget; and 
fired him when he voiced his personal opinion about rampant waste in 
state spending. But that's the Garcetti case, isn't it?

Unless political appointment invariably costs the appointee his right 
to express political opinions as a private citizen, it is hard to 
imagine a situation in which an appointee could more clearly be 
speaking as a private citizen. I think the answer that you suggest, 
and I'm inclined to agree, is that political appointment does 
invariably cost the appointee his right to express political opinions 
that are politically costly to whomever holds the power of 
appointment. But what is the constitutional distinction between the 
DA's hire and the Governor's appointment? Is it the fiction that the 
DA's job isn't political?

I see that the story was blogged by Eugene on VC, and generated a few 
comments. http://volokh.com/posts/1150478046.shtml.

John Noble

>
>J. Noble wrote:
>
>>Article here:
>>http://www.washingtonpost.com/wp-dyn/content/article/2006/06/15/AR2006061502097.html
>>
>>In a nutshell:
>>
>>Smith was the Maryland governor's appointee to the board of metro 
>>D.C.'s regional transportation authority, WMATA. He is also a 
>>regular panelist on a local cable access program that nobody 
>>watches, which is devoted to political discussion, and where he 
>>represents the "Republican activist" point of view, according to 
>>the show's producer. According to the Post:
>>
>>>On last weekend's show, Smith interrupted another speaker who was 
>>>talking about federalism and Vice President Cheney's daughter. The 
>>>speaker said Cheney's daughter, who is a lesbian, would not want 
>>>the government interfering in her life, according to a recording 
>>>of that portion of the show.
>>>
>>>"That's fine, that's fine," Smith interrupted. "But that doesn't 
>>>mean that government should proffer a special place of entitlement 
>>>within the laws of the United States for persons of sexual 
>>>deviancy."
>>
>>
>>At the next meeting of the WMATA board, the D.C. representative, a 
>>gay political activist, called on Smith to apologize or the Md. 
>>governor to fire him. Smith explained that "Homosexual behavior, in 
>>my view, is deviant. ... I'm a Roman Catholic." He added that his 
>>personal beliefs have "absolutely nothing to do with running trains 
>>and buses and have not affected my actions or decisions on this 
>>board."
>>
>>The governor, who is running for reelection in a Blue state as a 
>>centrist Republican, fired him less than five hours later: "Robert 
>>Smith's comments were highly inappropriate, insensitive and 
>>unacceptable. . . . They are in direct conflict to my 
>>administration's commitment to inclusiveness, tolerance and 
>>opportunity."
>>
>>The 1A claim looks like a slam-dunk under the 
>>Pickering-Connick-Garcetti line of cases. Smith was speaking as a 
>>private citizen, his speech was at the core of First Amendment 
>>protection, and it had no bearing on his job performance. However, 
>>before he was fired, Smith told the Post that he served at the 
>>pleasure of the Governor. I wonder if he doesn't have a point 
>>(assuming he didn't change his mind after learning of the 
>>Governor's displeasure).
>>
>>The balancing test articulated in Garcetti -- "So long as employees 
>>are speaking as citizens about matters of public concern, they must 
>>face only those speech restrictions that are necessary for their 
>>employers to operate efficiently and effectively" -- does not seem 
>>to leave room for restrictions necessary for the Governor to avoid 
>>political embarrassment and risk a narrow defeat in his bid for 
>>reelection. (Let's assume that the firing wasn't politically inept, 
>>which it was.)
>>
>>The Governor can plainly use his official appointment authority to 
>>reward political supporters who will help him get reelected. He 
>>could have decided not to appoint Smith to the WMATA board if he 
>>had foreseen the political cost ahead of time. After the 
>>appointment, the Governor might have fired him for any other 
>>reason, or no reason at all, and certainly for any politically 
>>embarrassing conduct (e.g. shop-lifting or drunken driving) that 
>>isn't constitutionally protected.
>>
>>Is there constitutional difference between a civil servant, and 
>>political appointee to a government job? Does the governor, as 
>>politician, have a right of association, expressed by the exercise 
>>of his appointment power, and authority to fire appointees, that 
>>competes with a political appointee's right to free speech?
>>
>>John Noble
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>
>
>--
>Paul Finkelman
>Chapman Distinguished Professor of Law
>University of Tulsa College of Law
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