Tuesday, January 28, 2014

Another Public Employee Fired for Facebook Posting


A Mississippi District Court judge has ruled that a police chief did not violate the First Amendment rights of a police officer when he fired her for making comments about his actions on her Facebook page.  The case is Graziosi v. City of Greenville, US District Court for the Northern District of Mississippi, Greenville Division, Dec. 3, 2013.

Susan Graziosi served as a police officer in Greenville MS for more than 26 years.  In May, 2012, she found out that her police department did not send a representative to the funeral of a police officer in a neighboring town who had been killed in the line of duty.  Using her personal computer, and when she was not on duty, she posted an item on her Facebook page complaining about how this was “totally unacceptable.”  She also posted her comment on the Greenville Mayor’s Facebook page. 

The Greenville Police Department’s Policy and Procedure Manual prohibited employees from “maliciously” criticizing the work or manner of performance of other employees.  Citing this policy, the chief fired Graziosi.  On appeal, she argued that she was not acting maliciously, but just expressed a difference of opinion with the Chief. 

The legal question is whether a government employee’s speaking out is constitutionally protected.  More than 20 years ago, the Supreme Court held that in order to enjoy First Amendment protection, the subject of the speech must be a “matter of public concern.” Connick v. Myers, 461 U.S. 138 (1983). 

Graziosi’s position was that a decision about whether or not to send police officers to a funeral is inherently a matter of public concern because it involves the spending of public funds.  However, the judge held that Graziosi’s comments “were more related to her own frustration”  at the Chief’s decision not to send officers to the funeral, and were not made to expose unlawful conduct within the Police department, noting, “A public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run,” citing Ferrara v. Mills, 781 F.2d 1508, 1516 (11th Cir. 1986).  

It is useful to consider this decision in light of another case in which a public employee posted comments on her Facebook page.  In Gresham v. City of Atlanta, the employee posted a Facebook comment in which she was critical of what she saw as obstruction of justice by a fellow officer.  Significantly, she had set her Facebook settings so that the comment could only be viewed by her friends.  Therefore, even though the court held that the subject matter she posted about was a matter of public concern, the court held that she clearly had not intended “to bring an issue of public concern to the attention of persons with authority to make corrections . . . the context was more nearly one of Plaintiff’s venting her frustration with her superiors.”

Employees must continue to take care in terms of what they post about their employment situation on Facebook and other social media, while public employers must assure that if they take a personnel action against an employee for social media postings, they are not punishing an employee for exercising his or her First Amendment rights.

     - This post was prepared by Elizabeth L. Newman.  Please contact her at enewman@kcnlaw.com with your questions or comments.


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