The Public Employee Political Freedom Act 

Free Speech Protections Beyond the First Amendment

We’ve just completed another election cycle with politics — for better or worse — dominating the news, advertisements and general discourse. Our mailboxes, inboxes and airwaves have been flooded with election propaganda. While this can be overwhelming, even exhausting, these elections (and the publicity that precedes them) ensure that our republic remains a “government of the people, by the people, for the people.”

Axiomatic in the concept of representative democracy is that “the people” — the constituents, those electing these governing officials — must have the ability to communicate with their local, state and national elected officials. Without the ability to communicate their views and concerns, citizens are left powerless to influence those in the governing bodies. But what about when a public employer takes umbrage when an employee exercises this right? What happens when communicating with a public official impacts one’s job?

Enter Tennessee’s Public Employee Political Freedom Act (PEPFA). PEPFA makes it “unlawful for any public employer to discipline, threaten to discipline or otherwise discriminate against an employee because such employee exercised that employee’s right to communicate with an elected public official.” PEPFA’s purpose is “to facilitate free and open communication between public employees and elected officials by deterring the public employer from taking discriminatory actions against
an employee because of such communication.”

But is PEPFA really necessary? Doesn’t the First Amendment already provide enough free speech protection? We’ll dive into that first and then breakdown the basics of PEPFA claims in recent litigation.

PEPFA and the First Amendment

The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech . . . or the right of the people . . . to petition the government for redress of grievances.” Do public employees really need PEPFA in light of the protections afforded by the First Amendment? The simple answer: it depends on the nature of their speech. Is the speech related to their official duties? Or is related to their role as private citizens?

The United States Supreme Court has held that when public employees make statements as part of their official duties, they do not speak with the same First Amendment protections as private citizens. When a public employee makes statements pursuant to her official duties, the court has held, she is speaking not as a citizen but for her employer, even if her speech relates to a matter of public concern. However, when the employee speaks on matters outside of her official duties — as a private citizen — she retains First Amendment protection because that is the kind of activity engaged in by persons who do not work for the government.

PEPFA, on the other hand, specifically provides protection to employees who communicate to elected officials about their official duties. The Act provides that “[n]o public employee shall be prohibited from communicating with an elected public official for any job-related purpose whatsoever.”

Simply put, the First Amendment provides protection for speech that is outside a public employee’s official duties; PEPFA provides protection for speech that falls within a public employee’s official duties as long as the speech is directed to a public official.

PEPFA Basics

The retaliation prohibited by PEPFA is broader than what is proscribed by the Tennessee Public Protection Act, for example, which only prohibits termination for refusing to remain silent about or refusing to engage in illegal activities. Instead, under PEPFA, a public employer can’t discipline, or even threaten to discipline, or otherwise discriminate against an employee for communicating with an elected public official.
To fall within PEPFA’s protections, the employee’s statements must be (1) job-related and (2) true. PEPFA does not prohibit “reprimanding an employee for making untrue allegations concerning any job-related matter to an elected public official.” The employee must show that the communication with an elected official was a “substantial or motivating factor” in the discriminatory action taken by the employer. PEPFA also provides for treble damages and reasonable attorney fees.

Recent PEPFA Decisions

Jones v. Wilson County, a 2018 case out of the Sixth Circuit, highlights the requirement that an employee’s statement to public officials must be true. If the statement is untrue, then the plaintiff has failed to satisfy a statutory element, and it may provide a non-retaliatory basis for the adverse action. There, the plaintiff was a probation officer for Wilson County where she was required to answer questions about probationers before the General Sessions Court. In this case, the County terminated her employment after it found that she provided the court with false information regarding a criminal defendant’s ability to attend drug and alcohol counseling. The plaintiff argued that she was terminated for communicating in open court with the judge, an elected public official. The Sixth Circuit affirmed summary judgment for the County, holding that the plaintiff was terminated not for communicating with the judge, but for providing false testimony, dooming her PEPFA claim.

In another 2018 case, Green v. Campbell County, Judge Curtis Collier held that the plaintiff could rely on multiple illegal motivations for retaliation, including a violation of PEPFA, and that it was not necessary for her to show that she was terminated solely for communicating with elected officials. This holding is important because it allows plaintiffs to pursue multiple theories for the adverse action. For example, a plaintiff could allege that she was threatened with discipline for communicating with public officials (a PEPFA violation) while simultaneously alleging that she was later terminated for refusing to engage in illegal activity (a TPPA violation).

Keeling v. Coffee County exemplifies how the treble component of PEPFA can allow for significant damage awards. There, the plaintiff worked in the Code Department as a permits clerk making $23,000 annually. She alleged that she was terminated after communicating with the county mayor about the department head’s unwillingness to meet with members of the public. The jury found that the plaintiff had proven her PEPFA claim and awarded her $10,000 for humiliation and embarrassment. The trial court then awarded equitable damages (back pay, front pay, loss of benefits and prejudgment interest) totaling $154,379.41, which were tripled to amount to $463,138.24. The Court of Appeals affirmed that award.

Conclusion

PEPFA, as opposed to the First Amendment, provides public employees protection from retaliation for speaking to elected officials about their job duties. If a plaintiff can prove that her statements to a public official are true, related to her job duties, and that the statements were a substantial factor in the adverse action, then the damages can be quite significant. While PEPFA has been on the books since 1980, it’s only recently (in the last 10 years or so) seen an uptick in litigation. However, we suspect that that trend will only continue.

Notes

1. Lincoln, Abraham, “The Gettysburg Address,” Dedication of the Soldiers’ National Cemetery, Nov. 19, 1863, Gettysburg, Pennsylvania.
2. Tenn. Code Ann. § 8-50-601 et seq.
3. Pewitt v. Buford, No. 01A01-9501-CV-00025, 1995 WL 614327, at *5 (Tenn. Ct. App. Oct. 20, 1995).
4. U.S. Const. amend. I.
5. Garcetti v. Ceballos, 547 U.S. 410 (2006).
6. Tenn. Code Ann. § 8-50-602(a).
7. Tenn. Code Ann. § 50-1-304.
8. Tenn. Code Ann. § 8-50-604.
9. Todd v. Shelby County, 407 S.W.3d 212, 228 (Tenn. Ct. App. 2013).
10. Tenn. Code Ann. § 8-50-603(b).
11. 723 Fed. Appx. 289, 290 (6th Cir. 2018).
12. No. 3:17-cv-219, 2018 WL 5499761 (E.D. Tenn. Oct. 29, 2018).
13.No. M2017-01809-COA-R3-CV, 2018 WL 4468401 (Tenn. Ct. App. Sept. 18, 2018).

EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.

BRANDON L. MORROW is an associate with Kramer Rayson LLP in Knoxville where his primary areas of practice are labor and employment, and litigation. He earned a bachelor’s degree from the University of Tennessee and a law degree from UT College of Law in 2012.




 
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