City's new policy wrongly muzzles employees

This piece originally appeared at The Daily Progress. 

If you work for the City of Charlottesville, be warned: Watch what you say, even when you’re off the clock. The city is always listening. That’s the chilling new reality for city employees under a misguided personnel policy that went into effect last week.

Some welcome the new policy, believing it to be an overdue response to extremists on the city’s payroll. But those who support it today may feel differently tomorrow.

That’s because the new policy effectively bars city employees from commenting as private citizens on a broad range of matters of public concern, including questions of community safety and governmental efficiency. Silencing that speech won’t make Charlottesville a better place to live. And muzzling employees off-the-clock risks a First Amendment lawsuit.

The city is always listening. That’s the chilling new reality for city employees under a misguided personnel policy that went into effect last week.

The restrictive new policy is a response to the city’s handling of employee Allen Groat, who breached the U.S. Capitol during the January 6, 2021 insurrection. Groat, an analyst for the police and fire departments, posted on Twitter that he would engage in a “show of force” on January 6, and he tweeted a picture of himself with a former leader of the far-right Proud Boys.

Groat has been investigated by the FBI for his role in the Capitol attack. But he hasn’t faced criminal charges—and he’s kept his job. In August, Mayor Lloyd Snook told reporters that because Groat hadn’t been charged, the city couldn’t fire him.

The city’s decision not to terminate Groat earned national headlines. It also sparked local anger. Even in the absence of a criminal proceeding, people asked, how could Groat keep his taxpayer-funded paycheck? In response, Mayor Snook hinted that the city was reviewing its personnel policy. The new policy that went into effect last Monday is the result.

The policy “requires that employees refrain from conduct, on- and off-duty, that will undermine City government objectives or impair the proper performance of governmental functions."

This includes conduct that impairs “discipline or harmony among co-workers,” as well as conduct that “undermines close working relationships that are essential to the effective performance of an employee’s job duties.”

The policy means that city employees now exercise their First Amendment rights at their own risk, even off the clock.

These terms probably sound reasonable in the abstract. After all, who wouldn’t want city employees to work together harmoniously?

But on closer examination, the policy means that city employees now exercise their First Amendment rights at their own risk, even off the clock. Under the policy’s broad terms, city employees could now face discipline for speaking out on their own time—including criticizing dangerous or unsafe working conditions, disagreeing with biased or ineffective departmental decision-making, or simply voicing opinions their bosses don’t like.

Let’s say you’re a city employee. Your boss and coworkers all have “Blue Lives Matter” bumper stickers on their cars. How comfortable will you be posting an invitation to a Black Lives Matter event on your Twitter account? Could that “impair harmony” with colleagues? It might, so you decide against it. The result: The policy has chilled your speech.

Or imagine you’re a Charlottesville police officer. You’re concerned that officers with little experience are receiving leadership roles. You voiced your concerns on Facebook—and now you’ve violated the personnel policy, even though you were discussing an issue that impacts community safety.

Charlottesville’s policy imposes restrictions on what city employees can say before they speak, functioning as a “prior restraint” on First Amendment rights.

That was the exact case presented to a federal appellate court in Liverman v. City of Petersburg. Facing discipline for criticizing “rookies in specialty units” on Facebook, a cop challenged his department’s social media policy—which resembled Charlottesville’s new personnel policy. The court struck down the policy as unconstitutional on First Amendment grounds.

“We do not deny that officers’ social media use might present some potential for division within the ranks, particularly given the broad audience on Facebook,” wrote the unanimous panel. “But the speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern.”

To be sure, there may be times when employee expression does legitimately interfere with the government’s work. But those instances should be handled on a case-by-case basis. Instead, Charlottesville’s policy imposes restrictions on what city employees can say before they speak, functioning as a “prior restraint” on First Amendment rights. Prior restraints are heavily disfavored by courts, and Charlottesville will have an uphill climb justifying it.

No matter the intent, Charlottesville’s new personnel policy unconstitutionally restricts city employee speech. To best serve residents—and respect employee First Amendment rights—Charlottesville must rescind the policy now.