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Tribal employee's speech wasn't matter of public concern

By The Associated Press
12.01.06

PIERRE, S.D. — The free-speech rights of a former employee of the Flandreau Santee Sioux Tribe who bad-mouthed her boss and colleagues were not violated when she was fired, the state Supreme Court said yesterday.

Nor can Helen Gilbert, who was tribal education coordinator, collect unemployment benefits, the justices said in a unanimous decision in Gilbert v. Flandreau Santee Sioux Tribe.

Gilbert was canned after she wrote an Aug. 11, 2004, letter to the tribe's executive committee, complaining about a woman who had just been appointed to the political position of tribal secretary and criticizing the chairman for doing nothing about other employees who "literally get away with murder."

Gilbert, who also wanted the job of tribal secretary, said the woman who was hired for the position — Donalda "Neldie" Montoya — had told another woman that the tribal council would not name Gilbert as secretary because she had been charged as a prostitute.

The allegation was slanderous and untrue, Gilbert said.

She also said other tribal employees were either criminals, incompetent or woefully underqualified for their jobs but the chairman overlooked those flaws. Her letter, which was written on tribal letterhead while she was at work, indicated that the tribal office was in turmoil and disarray.

"Employee morale is low and cynicism is high," Gilbert wrote. "Very few of us care anymore."

The tribe subsequently fired Gilbert for violating its political activity policy. The policy is part of a state-tribal gambling compact that prohibits the tribe and its employees from involvement in political activities.

After Gilbert was fired, she filed for unemployment benefits. But the state denied her claim on the basis of employee misconduct, and she took the issue to Circuit Judge David Gienapp of Madison. He ruled that Gilbert violated the policy against political activity and there was no encroachment of her constitutional right of free speech when she was fired.

Upholding the circuit judge, the state Supreme Court said that neither the federal Constitution nor the South Dakota Constitution was breached when Gilbert was let go, and she is not entitled to unemployment payments.

The state justices noted that the U.S. Supreme Court has decided the speech of public employees is constitutionally protected, in certain instances, on issues of public concern. It added, however, that not all matters that come up in government offices are public concerns.

The justices ruled that Gilbert's letter involved internal complaints about other employees and was not within the realm of protected speech.

"She was not speaking as a citizen on matters of public concern," wrote Justice Judith M. Meierhenry.

"Even if we interpret 'public concern' liberally, we could not conclude that her speech was more than the airing of internal grievances."


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