By David Connell, legal services counsel with the New Hampshire Local Government Center’s Legal Services and Government Affairs Department
The following summary is based on an opinion of the U.S. Court of Appeals for the First Circuit, which is the appellate court for decisions of the U.S. District Court for the District of New Hampshire. Opinions of the First Circuit are binding on issues of federal law in New Hampshire.
At the scene of a fire that claimed the lives of two children, Foley, the Town’s fire chief, used the occasion of a press conference to comment on what he considered to be inadequate funding and staffing for the Randolph Fire Department. A disciplinary hearing officer issued a report finding that Foley made “inappropriate, inaccurate, intemperate, and misleading statements to the news media” at the scene of the fire. The board of selectmen suspended Foley for 15 days without pay. Foley brought a civil rights suit in federal court under 42 U.S.C. sec. 1983 against the Town and the selectmen, alleging that they had abridged his First Amendment rights. The trial court dismissed the claim, and Foley appealed to the First Circuit Court of Appeals.
The U.S. Supreme Court has established a balancing test between the rights of public employees to express their views about matters of public concern and the rights of governmental employers to control their employees’ words and actions to ensure efficient provision of public services. The first thing to consider is whether the employee is speaking (1) about a matter of public concern and (2) as a citizen. Foley’s remarks were obviously about a matter of public concern, so the Court concentrated on the second part of the test. In Garcetti v. Ceballos, 547 U.S. 41 (2006), the U.S. Supreme Court indicated that an employee’s speech may receive First Amendment protection when it is “the kind of activity engaged in by citizens who do not work for the government,” as distinguished from speech purely pursuant to employment responsibilities. “Under the circumstances of the press conference discussed above, there could be no doubt that Foley was speaking in his official capacity and not as a citizen.… [H]ad Foley voiced his concerns and frustrations in another forum—at a town meeting, in a letter to the editor, or even in a statement to the media at a different time and/or place—we might characterize his speech differently.” The Court upheld the selectmen’s disciplinary action and affirmed dismissal of the civil rights claim.
The New Hampshire Supreme Court dealt with the same issue in Snelling v. Claremont, 155 N.H. 674 (2007), in which a tax assessor was terminated for telling the local newspaper that the City’s tax system was unfair and City officials were taking unfair advantage of it. The Court held that the statements were protected First Amendment speech, because the assessor’s official public information duties were limited to explaining valuations and assessments. In discussing the fairness of the system, he was speaking as a citizen on matters of public concern. Finally, municipal officials must keep in mind RSA 98-E:1, which grants broad rights to public employees to criticize governmental entities and their policies.
Please be advised that the foregoing New Hampshire Supreme Court case summary is based on a slip opinion. Slip opinions are subject to change following motions for rehearing and/or motions for reconsideration. The Court may also modify an opinion without motion. The final version of the Court’s opinion is that which appears in the New Hampshire Reports. A yearly compilation of municipal law cases is presented each fall at LGC’s annual conference. For your copy of the 2009 Court Update, call 800.852.3358, ext. 100.