Political appointee fired for comment on gays

MARK STEIN markstein at prodigy.net
Sat Jun 17 17:38:25 PDT 2006


You would think that a patronage-eligible employee under Elrod, etc. could also  be fired for speech.

Mark

Greg Magarian <magarian at law.villanova.edu> wrote: I don't think we can conceptualize an aspect of an elected official's
power as a "right of association."  The Governor as Governor has powers
and prerogatives of office; he has no greater constitutional rights than
any other citizen.  As John notes, those prerogatives include various
kinds of authority to punish or reward constitutionally unprotected
behavior, but protected speech is a different matter.  John is also
right to emphasize that the Governor could have declined, based on
Smith's antigay views, to appoint Smith to the position in the first
place, and that wouldn't have raised a First Amendment issue.  But the
reason the issue wouldn't have arisen is that no one would have known
about the Governor's (in)action.  The same dynamic defines the
difference between a library's decision to ban a book and a decision not
to buy the book in the first place: we can't correct what we can't see. 
There may or may not be good reasons for such an act-omission
distinction in constitutional law, but the distinction certainly has
practical importance.

Gregory P. Magarian
Professor of Law
Villanova University School of Law
299 N. Spring Mill Road
Villanova, PA 19085
(610) 519-7652
>>> "J. Noble"  06/17/06 5:38 PM >>>
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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