Paul N. Lalley, Esquire
Published on: Mon 7th Aug, 2023 By: Campbell Durrant, P.C.
The need to fully investigate all inappropriate employee misconduct -- even those involving the most blatantly discriminatory and abhorrent communications -- before taking disciplinary action was recently highlighted in a decision by the United States Court of Appeals for the Third Circuit. The failure to do so could lead not only to prolonged and costly litigation but even monetary liability.
In Fenico v. City of Philadelphia, the City disciplined several police officers after they posted comments and images on Facebook which were revealed by the Plain View Project. The Plain View Project published an online database of over 5,000 Facebook posts and comments by police officers that reflected the officers’ views on race, religion, ethnicity, and their policing. In this case, the officers’ posts included detestable speech ranging from racial slurs, anti-Muslim rhetoric, homophobic comments, and posts advocating for vigilante justice and admiration for the use of excessive force. The City disciplined seventy-two officers, charging them with violations of the department’s disciplinary code for conduct unbecoming, neglect of duty, and with violations of the department’s social media policy. The City believed that the offensive social media posts conflicted with its policy, directives, and the overall ability of the police department to maintain the public’s trust. The City further believed that the posts were disruptive to the police department’s overall mission which renders the officers unable to effectively police the City’s diverse population.
Twelve officers sued the City in federal district court, alleging their Facebook posts were protected by the First Amendment. The City asked the district court to dismiss the case before any discovery took place, on the grounds that that its interests in the integrity of the police force outweighed the Plaintiffs’ claimed First Amendment interests. The district court agreed with the City and dismissed the lawsuit, meaning that it assumed the truth of the Plaintiffs’ allegations regarding the City’s disciplinary actions but found that those allegations did not state a First Amendment claim against the City.
The Third Circuit, however, reversed the district court and reinstated the lawsuit. The Court noted that to determine if any communication by a public employee is protected by the First Amendment, it must weigh the employee’s interest in speaking on a matter of public concern against the government’s interest in avoiding disruption to its operations. The Court found that the Plaintiffs’ claims could not be categorically dismissed without an examination of a factual record showing the specific offensive posts that were made by individual officers, and how the City’s interests in maintaining the integrity of the police department were implicated by those specific posts. For example, the Third Circuit said that it was not clear if certain posts were authored by the police officers who were disciplined for them or what posts were the basis of the department’s discipline. In addition, because of the procedural posture of the case, there was not a sufficient factual basis to show how the posts disrupted the police department’s operations. The Court ruled that the record did not have enough facts for the district court to dismiss the Plaintiffs’ case at such an early stage.
The Court noted, however, that it will give weight to a public employer’s claims of disruption of its operations caused by an employee’s social media posts, especially where the employer has performed an internal investigation and developed the evidence. The court also stated that although it had revived the lawsuit, the Plaintiffs “undoubtedly face a steep uphill climb in ultimately proving their case.”
Perhaps the most important takeaway from the Fenico decision is that the courts are not going to give public employers unrestricted authority over employee off-duty social media posts. The Fenico decision is an important reminder for employers to review employment policies, including policies related to employee social media activities. The case also underscores that employers must take the time to fully and properly investigate and analyze all potential disciplinary situations, especially cases involving potential employee First Amendment claims, before imposing discipline. This applies to all cases, no matter how abhorrent or obvious the employee misconduct appears. The investigation should focus not only on establishing the facts of the employee’s conduct; it should also gather evidence that shows any impact of the employee’s actions on the employer’s operations that justifies why discipline is needed. In other words, the employer needs to make sure that all investigative procedures are followed.
While taking prompt action is important, we recommend working closely with labor counsel to make sure the investigation is thorough, the facts are established, and that discipline is appropriate. Campbell Durrant attorneys are available to assist your municipality in reviewing or drafting your social media policies and to assist you in any investigations of alleged employee misconduct.
• Review, update, or develop your municipality’s social media policies.
• Investigate claims of employee social media misconduct and if the employee’s social media postings are disrupting your municipality’s operations, memorialize the evidence of that disruption.
• Make sure that proper investigative procedures are followed.
• Gather sufficient evidence to support a clear record before implementing discipline.
The Fenico decision shows that both courts and arbitrators look for the public employer’s proof that it has done a proper investigation of alleged employee misconduct, has established the factual basis for discipline, and that the discipline is warranted due to the impact of the employee’s misconduct, particularly when it is based on an employee’s off-duty social media activity. The attorneys at Campbell Durrant are here to assist you with any questions you may have.