Stennis Institute of Government

Public employees are not always protected by the 1st Amendment when speaking in the course of their public duties. A recent United States Supreme Court opinion, Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) makes a distinction between speech of public employees as part of their job duties and their speech as citizens.  The Court said:  “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for 1st Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

This was a close decision — so close, in fact, that the Court held oral argument twice so that Justice Alito could hear the arguments and cast a vote, suggesting that the Court was deadlocked. In analyzing the facts of the case, the Court reiterated its holding in Connick v. Myers, 103 S. Ct. 1684 (1983) that “a state cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.” 

While recognizing society’s interests when public  employees speak as citizens on matters of public concern, the Court held that the dispositive aspect of the Ceballos case was that his expressions were made pursuant to his duties in the D.A.’s office, a fact that Mr. Ceballos readily admitted.  The Court found that this fact distinguished Ceballos’ case from other cases in which the 1st Amendment provides protection against discipline. Dissenters on the Court argued that a public employee should be entitled to 1st Amendment protection if he speaks on a matter of unusual importance and satisfies high standards of responsibility.  They looked to the previously relied upon standards of Pickering v. Board of Education and Connick. These cases recognize a 2-prong inquiry for protection under the 1st Amendment.  Is the speech about a matter of public concern?  If so, then under these decisions, the Court had the duty to balance the competing interests of the employer and the employee.  Traditionally, the second prong of the test centered on whether the utterance significantly disturbed the workplace. 

In the Ceballos case there was no evidence that the speech caused any lack of effectiveness in the operation of the D.A.’s office.  The dissenters argued that the Ceballos decision created a new rule which provides incentives for a public employee to voice his concern in public before taking them to his superiors, because the public utterance would be protected. The immediate reaction from pundits was that the effect of the Ceballos decision will create a chilling effect on whistle-blowing at work. 

Only time will tell as to the validity of this opinion. Others, along with the Court’s dissenters, questioned whether the decision will apply to public college and university professors, whose writings and speech are part of their official duties.  The majority opinion appears to have countenanced the question and specifically reserved it for another day and another case.

If you have any questions, comments or issues for discussion, email me at lydia at sig dot msstate dot edu.  Thanks for reading and have a good day.

A recent 5th Circuit Court of Appeals decision has ruled a pat-down search at a traffic stop unconstitutional under certain circumstances.  [U.S. v. Jenson, August 23, 2006]  Although this case is fact-driven, it is worthy of consideration for law enforcement officials.

Police stopped a vehicle for speeding.  In the opinion of the officers, it took the vehicle entirely too long (30 seconds to one minute) to pull over and stop, arousing suspicions that the vehicle’s passengers may have been trying to conceal something.  The officer making the stop testified that he became more suspicious when the driver, after realizing he was going to receive a written warning — not a ticket – became excessively talkative, which the officer interpreted as nervousness.  According to the officer, a speeder normally becomes less nervous when he realizes he is not getting a ticket. The officer asked and received permission to search the vehicle. While the vehicle was apparently clean, the officer found a small handgun on the driver in an associated pat-down search.  Later, at the police station, another policeman found a small bag of marijuana secreted in the driver’s sock.

In ensuing litigation, the driver moved to suppress the evidence found by the pat-down search, asserting that it violated his 4th Amendment rights.  The 5th Circuit agreed. The Court opined that the government had not shown reasonable suspicion to prolong the traffic stop with the pat-down search which resulted in the gun (and the custodial offense).  In other words, no valid connection was proven between the driver’s behavior as a result of the speeding stop and the drug or weapons possession; thus, the pat-down search was not justified.

If you have any comments, questions or ideas, please feel free to contact me at: lydia at sig dot msstate dot edu. Thanks for reading and have a good day.

The 3rd Circuit Court of Appeals held that a public school district was not responsible for the suicide of a student who died at his own hand a few days after speaking with the school counselor.  In this particular case [Sanford v. Stiles, No. 04-4496 (August 2, 2006)], the student’s girlfriend received a note in which the student discussed suicide.  The girlfriend, also a student, took the note to the school counselor.  The counselor called the student in for consultation.  During the conversation with the counselor, the student denied that he had any problems and the counselor saw no evidence to suggest that the student was at risk.  A few days later, the student committed suicide. 

The student’s mother later sued the school district and the counselor under 42 USC 1983, alleging that the school district and the counselor were responsible under a “state-created danger” claim. The 3rd Circuit affirmed a summary judgment granted in favor of the defendant counselor and public school district.  In doing so, the 3rd Circuit joined the 1st, 7th and 11th Circuits, which have refused to allow a “state-created danger” claim to survive against school officials in similar circumstances.  (There is a contrary decision in the 10th Circuit Court of Appeals.)

In order to prove a “state-created danger” that will withstand judicial scrutiny, a litigant suing a public entity and raising this claim must be able to prove that

• the harm was forseeable and direct;
• the state acted with culpability that shocked the conscience;
• the injured individual was a forseeable victim of the state’s act; and
• the state affirmatively used its authority in a way that created danger or rendered the injured individual more vulnerable to danger than had the state not acted at all.

A “state-created danger” allegation can be used against any public entity.  Likewise, any public entity can unwittingly act in such a way that a “state-created danger” occurs.

As you analyze activities of your employees, contemplate the elements listed above which characterize “state-created danger” and make sure that they are not present as you carry out your public business.

Contact me at lydia at sig dot msstate dot edu with questions, comments or suggestions for commentary. Thanks for reading.  Have a good day.

Impact fees have been around for a while. Policy-wonks are familiar with the concept. Over half the states in the nation have developed impact fee legislation, and 4 other states have determined, by case law, that although there is no specific impact fee statute, the municipalities of these states have the legal authority to adopt impact fees. But impact fees remain illegal in Mississippi.

This was determined by the Mississippi Supreme Court in their decision, Mayor and Board of Aldermen, City of Ocean Springs, Mississippi v. Homebuilders Association of Mississippi, Inc., et al., No. 2004-CC-01278-SCT (June 15, 2006). Appellants [Ocean Springs, et al.] adopted a comprehensive plan for the city which included development impact fees . The plan called for, among other things, a plan of assessment of these development fees in order to defray the cost of capital improvements required to accommodate the proposed land development. These impact fees were to be assessed in addition to other applicable land-use fees which were currently in effect.

After the plan was adopted in Ocean Springs, the Homebuilders Association of Mississippi, Inc. [Homebuilders], together with other builders, filed a Bill of Exception claiming that the impact fees were illegal taxes and that Ocean Springs was without legal authority to impose them. The Jackson County Circuit Court agreed with the Homebuilders and Ocean Springs appealed to the Supreme Court.

While decisions of the Mayor and Board of Aldermen will not be disturbed unless the action was arbitrary, capricious, discriminatory or beyond the authority of the board, the Supreme Court agreed with the Jackson County Circuit Court that the impact fees were taxes and beyond the legal authority of the city or any city in Mississippi. The Supreme Court found, among other thins, that the State does not have a specific constitutional provision or statute regarding implementation of development impact fees either authorizing the fees or enabling legislation authorizing cities to adopt the fees. The Court further found that the Municipal Planning Statutes [Miss. Code Ann. 17-1-1, et seq] grant no authority to municipalities to adopt impact fees, nor does the Home Rule Statute [Miss. Code Ann. 21-17-5]. The Court concluded: there is no constitutional basis, legislative enactment, or common law doctrine, which empowers cities to adopt and impose development impact fees. The Court considered other jurisdictions which had considered the fact that an impact fee might not be considered a tax, but came down squarely that impact fees constitute a tax because the fees are simply a revenue-raising measure and that the fees would constitute a tax that the municipality has no current authority to assess, leaving the future squarely in the ball park of the legislature.

Ideas for discussion? Email me at lydia at sig dot msstate dot edu. Thanks for reading and have a good day.