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Federal appeals panel reinstates former public employee's free-speech suit

David Hudson
The Freedom Forum Online

A former administrative assistant to the city manager of Del City, Okla., who alleged she was fired for speaking out about a possible violation of the open-meetings law, had her free-speech lawsuit reinstated by a federal appeals court panel.

Jana Barker was hired in March 1996 as the administrative assistant to then-city manager Stanley Greil. In May 1997, Greil's employment ended after a new mayor and several new city council members took office.

Later that month, Barker was interviewed by a reporter about a possible violation of the state open-meetings law, in which several of the new city council members decided to hire a different attorney for the city. Incumbent city council member Dale Switzer had complained about the situation, accusing the other members of violating the open-meetings law by discussing the issue without him.

Barker said that the acting city manager and the city attorney had both approved her talking to the press. The reporter's article included statements from Barker that supported Switzer's version of the alleged open-meetings violation.

Barker was eventually dismissed in February 1998. Later that year, she sued the city, contending that her firing violated her First Amendment free-speech and free-association rights.

She argued that her free-association rights were violated because she was fired for her affiliation with former city manager Greil. Her free-speech rights were violated, she said, because she was fired for speaking out about the possible open-meetings violation.

The city countered that she was fired for poor job performance and "unfitness" for the position.

A U.S. District Court judge granted the city summary judgment. On appeal, a three-judge panel of the 10th U.S. Circuit Court of Appeals affirmed the lower court's dismissal of the free-association claim but reinstated Barker's free-speech claim.

With respect to the free-association claim, the appeals court panel noted that the U.S. Supreme Court in Elrod v. Burns (1976) and Branti v. Finkel (1980) had determined that public employees receive First Amendment protection from discrimination based on their political affiliations unless their work requires political allegiance.

The panel determined in its June 15 opinion in Barker v. City of Del City that "political association and allegiance were appropriate requirements for the performance of Ms. Barker's job as administrative assistant to the city manager."

However, the panel reached a conclusion different from the lower court with respect to the free-speech claim. The court noted that the U.S. Supreme Court in Pickering v. Board of Educ. (1968) and Connick v. Myers (1983) had determined that public employee free-speech cases are analyzed under a multi-part test.

The first two parts of the Pickering-Connick test are:

  • The speech in question must involve a matter of public concern.

  • The public employee's free-speech interest must outweigh the employer's interest in an efficient and effective workplace.

The 10th Circuit panel had no trouble finding that Barker's speech "about claimed violations of the Open Meetings Act by members of the City Council is a matter of public concern."

However, the panel reinstated the free-speech claim because, it said, the city had put forth no "actual evidence" of any disruption caused by Barker's speech.

Barker's attorney was out of town and unavailable for comment. The attorney that represented Del City could not be reached for comment.

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