NJ State PBA Legal Corner
By Robert A. Fagella, Esq. and Paul L. Kleinbaum, Esq.
In the Internet era, the boundary between our private and public lives has become increasingly blurred. This is especially true with respect to use of the variety of platforms available on social media.
As a result, a growing number of employees have faced repercussions at their places of employment for ideas they express on social media. Thus, as posting one’s own views has become significantly easier, so has the ability of employers to peer into employees’ lives outside of work and make employment decisions based on employees’ “extracurricular” activities.
Public debate over this new hazard of modern life has been vigorous, with some suggesting that employers should be prohibited from doing so altogether. With respect to public employees in particular, it has been argued that the First Amendment should protect their right to engage in speech on social media, even controversial speech, outside the workplace.
However, where such arguments have been tested in litigation, courts have been skeptical. The First Amendment right to freedom of speech generally does not protect social media speech outside the job except in particular circumstances. This is particularly true for law enforcement officers who are held to a higher standard.
A recent case illustrates this point. In In re Chirichello, a correctional officer’s employment was terminated by the Civil Service Commission for conduct unbecoming of her position in connection with posts she made or shared on social media. Those posts included denunciations of Black Lives Matter protestors and appeared to endorse the use of violence against them, invoking George Floyd’s criminal history and suggesting that he should have been killed sooner and incorporating the Confederate flag. In older posts from before she was employed by the Department of Corrections, she had also described Newark and the Washington Heights neighborhood in Manhattan as “ghettos.”
The commission rejected a decision by an administrative law judge (ALJ) to reduce the correctional officer’s discipline to a 180-day suspension. The commission explained that it had decided to terminate her because people who saw the posts “could reasonably presume that the sentiment expressed in the posts were a good measure of her ability to treat the people she serves in a fair and impartial manner. Clearly, the [officer’s] behavior in making these multiple posts could adversely affect the [morale] and safety of the facility and undermine the public respect in the services provided.”
The commission further noted that the correctional officer’s multiple posts and reports could adversely affect the safety of the correctional facility and undermine public respect. The commission also rejected the argument that she was entitled to consideration for her clean record. It noted that her brief tenure as a correctional officer — she had been employed for less than two years — made the decision to terminate easier because there was no lengthy record of service against which to weigh the inflammatory posts.
On appeal, the officer argued that the posts were not made in the workplace and had been misconstrued as racially motivated. The appellate division rejected her argument and upheld the commission’s decision for several reasons. As a preliminary matter, the court noted that the commission’s decisions in this area were entitled to deference and should not be overturned unless they were “arbitrary, capricious or unreasonable” – a difficult hurdle to overcome.
The court also noted that there is no right to keep a government job after engaging in conduct unbecoming a public employee, or which reflects poorly on the public employer, such as making social media posts which the court described as “inappropriate, inflammatory and discriminatory, and fell short of the high standards required of her office.” The court also observed that, although her prior disciplinary record was clean, this was largely attributable to her brief tenure rather than constituting proof of good character. The court suggested that a reduction in the penalty might have been considered if the officer had a lengthy and unblemished record.
The NJ State PBA has frequently cautioned members to be careful about their use of social media. Though there will surely be more litigation in this area, this case standing alone has several important lessons for law enforcement officers.
First, they should remember that the decisions of administrative agencies like the NJ Civil Service Commission are afforded substantial deference by reviewing courts. Once the decision to terminate employment has been made, it is exceedingly difficult to overturn on appeal because in order to do so, the employee must show that the commission’s decision was totally unreasonable, i.e., a decision that is “arbitrary” or which no reasonable agency with very different views on controversial issues could have reached.
For that same reason, law enforcement officers should exercise great caution when using social media because they are held to a higher standard than other public employees. This exercise of caution should include refraining from making or sharing social media posts that could be reasonably construed as endorsing unlawful or discriminatory conduct.
Indeed, to ensure greater protection beyond merely refraining from arguably endorsing unlawful or discriminatory conduct, law enforcement officers should also try to maintain a temperate tone when discussing controversial issues on social media so as to avoid being characterized as inflammatory. Last, and certainly not least, law enforcement officers should keep in mind that even keeping their social media accounts private may not guarantee that social media posts will not reach their employers or the general public.
There will undoubtedly be other cases involving discipline for use of social media. No one is trying to prevent law enforcement officers from using social media or to violate their right of expression. But given the potential impact of their jobs, we continue to recommend that law enforcement officers exercise great caution on social media. We will keep the New Jersey State PBA and its members apprised of any developments in this area of the law.