Published in the May, 2020 PELRAS Scoop Articles
Published on: Wed 27th May, 2020 By: Campbell Durrant, P.C.
On Tuesday, May 19, 2020, the Pennsylvania Supreme Court reversed the Commonwealth Court’s decision in Carr v. PennDOT and held that a public employer may terminate a probationary employee based on messages she posted on a social networking website. In an Opinion authored by Justice Mundy and joined by Chief Justice Saylor and Justices Baer, Todd, Donohue, and Wecht, the Court determined that the Commonwealth Court failed to engage in the proper Pickering/Connick balancing of interests and thereby erred in reversing the Civil Service Commission’s order dismissing the probationary employee’s First Amendment free speech challenge to her termination. The Pennsylvania Municipal League (“PML”) was an Amicus party fighting for this result.
The United States Supreme Court’s Pickering/Connick test directs courts analyzing a public employee’s First Amendment claim to (1) determine whether the speech addresses matters of public concern by examining its “content, form, and context,” Connick v. Meyers, 461 U.S. 138, 147–48 (1983); and if it does, (2) to balance the interests of the employee “in commenting upon matters of public concern,” and the interest of the public employer “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist., 391 U.S. 563, 568 (1968). When balancing under the Pickering/Connick second part, the Pennsylvania Supreme Court requires courts to consider (1) the public importance of the speech; (2) the nature of the injury to the agency; and (3) factors which may mitigate or aggravate the injury to the agency. Sacks v. Dep’t of Pub. Welfare, 465 A.2d 981, 989 (Pa. 1983).
While basing its decision on the Commonwealth Court’s improper Pickering/Connick and Sacks part two balancing, which was PennDOT’s only challenge on appeal, the Majority opinion noted that “there is no present dispute whether Carr’s comments touched on a matter of public concern, [because] they were essentially a rant based on her personal observation of a particular bus driver rather than an explanation of safety concerns that she became aware of as a Department employee.” A concurring opinion filed by Justice Wecht and joined by Justice Dougherty, however, agreed with PML’s Amicus argument that the speech at issue did not even pass the first part of Pickering/Connick because the Commonwealth Court “overgeneralized Carr’s expressions of personal frustration to find a matter of public concern.” Because the question of whether the speech addressed a matter of public concern was not before the Court, Justice Wecht warned that “almost any statement can be connected to a matter of public employment if viewed broadly enough.”