An Employee Mistakenly Steps Into Politics; Can The Government Retaliate?

The U.S. Supreme Court tackles a case on Tuesday that can fairly be described as weird. The consequences, however, could be significant.

The Supreme Court has long held that the government cannot retaliate against its employees for exercising their First Amendment right of free speech or association. But what if the employee is mistakenly perceived as taking a political position, when in fact he was doing nothing of the sort?

That's what happened to Jeffrey Heffernan. After 20 years on the Paterson, N.J., police force, he was promoted to detective and given a plum assignment in the police chief's office. Then one day during the 2006 mayoral election campaign, his mother's yard sign supporting the mayor's opponent was stolen.

"So she called me up and said, 'Listen, can you pick me up another sign?' " he recalls.

Heffernan promised he would get the sign, and while he was off-duty, he went to the challenger's campaign office; there the police officer was seen holding the sign and chatting with campaign workers.

When he got back home, he says, "my phone rang, and I was told that I was ... being demoted and I was gonna go on a walking squad for 12 hours a day."

Heffernan says he tried in vain to explain that he was just picking up the sign for his bedridden mother, and that he was not active in the campaign, nor could he even vote in Paterson since he didn't live there.

"They said to me that 'the mayor wants you out of the office; the mayor calls the shots, and you're out,' " he says.

The police chief later admitted he simply assumed that since Heffernan was seen holding the sign, he supported the candidate running against the mayor.

For Heffernan, who eventually retired, the demotion was a huge blow. He made more money as a detective, he says, and working in the chief's office meant fewer hours, and weekends and holidays off — not to mention the pension consequences of being busted down to walking patrol.

He sued, contending his First Amendment rights were violated, and a jury awarded him a total of $105,000 in compensatory and punitive damages.

But the trial judge subsequently recused himself, and the verdict was set aside. On a second go-round, the newly assigned judge threw the case out, declaring that since Heffernan was not in fact campaigning for the mayor's opponent, he was not exercising his right of free speech and association. Therefore, no constitutional right had been violated. A federal appeals court agreed, and Heffernan appealed to the Supreme Court, where his case is to be argued on Tuesday.

Heffernan's lawyer, Mark Frost, will argue, "You have the right to be involved or not be involved. That's part of your First Amendment right, and the fact that here they were mistaken as to what he was actually doing, doesn't matter."

In evaluating retaliation cases, Frost says, courts should look at motive, and here the motive was to punish Heffernan's perceived speech.

Motive is irrelevant, counters lawyer Tom Goldstein, representing the city of Paterson. He concedes that if Heffernan had in fact been supporting the mayor's opponent, his right to do so would have been constitutionally protected. But Goldstein explains:

"The Constitution always requires ... that you actually be exercising the right, not that the government's motive was bad. ... If you aren't exercising your constitutional rights, we haven't violated your constitutional rights."

Goldstein contends that Heffernan might have had a legitimate lawsuit under state civil service or civil rights laws, but not under the Constitution.

Both sides see the consequences of this case as potentially enormous. Heffernan's lawyer says if the Supreme Court rules in favor of the city, government employees at every level will constantly be looking over their shoulders for fear of a mistaken impression.

Citizens working for government "would have to think twice before they do something, or say something, or before they associate with somebody," Frost says.

The federal government, the largest public employer in the country, agrees, and has filed a brief supporting Officer Heffernan's position.

But lawyer Goldstein, representing the city, counters that a decision supporting Heffernan would lead to thousands of aggrieved public employees suing their bosses based on little more than a suspicion of a bad motive. That, he says, would throw a huge monkey wrench into the ability of supervisors to manage public employees.

A decision in the case is expected by summer.

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