Position Elimination Not Deemed To Be a First Amendment Rights Violation
by Kenneth A. Skroumbelos, Esq.
A federal district court ruled earlier this year that a township did not violate the First Amendment Rights of a non-tenured manager, who had claimed he was terminated in retaliation for his involvement in an organized bargaining unit.
On February 3, 2010, the United States District Court for the 3rd Circuit District found in David Beresford v. Wall Township Board of Education, et al, Civil Action No. 08-2236, that the Wall Township Board of Education’s (School Board) elimination of Mr. Beresford’s (Petitioner) non-tenured position as manager of information services for budgetary reasons was not in violation of the First Amendments protection of free speech. =The petitioner claimed that the school board violated his first amendment rights by terminating him in retaliation to his involvement in organizing a bargaining unit.
Though employees have the right to speak on matters of public concern without the fear of retaliation, the District Court held that petitioner’s speech was not made in his capacity as a private citizen because it was spoken in his official capacity as lead negotiator for the union. The court further held that his speech was not made on matters of public concern because it did not relate to “political, social, or other concern[s] to the community.”
In addition to failing to meet the public concern test, Petitioner also failed to rebut the school board’s justification that the termination was the result of budgetary constraints as the school board offered evidence that some eighty other positions were eliminated.
Though the School Board prevailed in this case, school boards should remain wary concerning how they handle budget cuts and the elimination of employment positions. In this economic climate employees and their unions are likely to make every attempt to hold onto their positions.