Monday, May 13, 2019

Republican Indianapolis Mayoral Candidate Suggestion of Firing City Employees for Criticizing Ten Point Coalition Would Expose City to Expensive Lawsuits

I know State Senator Jim Merritt is not an attorney. But the Republican candidate for Indianapolis Mayor would have been wise to consult with one before issuing a press release saying he would have fired city employees for making "vulgar and divisive comments" critical of the Ten Point Coalition, a non-profit organization by Rev. Charles Harrison that aims at deterring youth from committing crimes. 

An Indianapolis Star article details the complained of comments:

Two Indianapolis employees, whose jobs are to improve the city and police department's relationship with the community, are under fire for comments they made on Facebook about the
Senator Jim Merritt
Ten Point Coalition.
The comments came during a Facebook Live show hosted by ministers Preston T. Adams III and Denell Howard on Wednesday. Part of the show centered on public safety in Indianapolis, leading one commenter to ask whether Ten Point responded to a recent Downtown shooting. 
"Ten Point is out walking the track like good hoes do," Gregory Meriweather, an Indianapolis Metropolitan Police Department civilian employee, wrote jokingly in response.
And when someone asked what Ten Point has been up to, Community Violence Reduction Director Shonna Majors wrote: "$$$."
Mayor Hogsett suspended Meriweather for 3 days without pay while Majors, who received a formal warning, was reassigned, at least temporarily, from a position that helps decide which organizations, such as Ten Point Coalition, receive crime prevention grants.

From the Merritt press release:
INDIANAPOLIS – Republican mayoral candidate and current state senator Jim Merritt
held a press conference today to react to “vulgar and divisive comments” made by two
city employees about the crime prevention organization known as The Indianapolis Ten
Point Coalition. 
“After these awful and mean-spirited comments were made about people who try to
protect our city, Mayor Hogsett’s reaction was to allow them to keep their jobs with a
slap on the wrist,” said Merritt. “This is simply unacceptable and shows us why Joe
Hogsett has failed as the person responsible for protecting our city.” 
Regarding the current situation, Merritt had tough words for the mayor. “Joe Hogsett
should fire these employees. If he doesn’t fire them now, it’s an endorsement of their
divisive, ugly comments,” Merritt said. “A true leader brings together and unites all who
wish to better our community. Joe Hogsett has not done that.”
The comments were made from the city employees' personal social media accounts.  The comments which were crass and arguably unfair to the Ten Point Coalition, were still political in nature and thus receive the most protection under the First Amendment Free Speech Clause.  Merritt is suggesting that Mayor Hogsett fire the employees because the Senator didn't like the content of the employees' private, political speech.  That's a really bad idea.

Mayor Hogsett is an attorney and probably consulted with legal counsel about the employees' conduct.  Thus, he likely knew the legal ramifications involved in any disciplinary action. If he fired the employees, he would be opening the city up to lawsuits based on a breach of the employee's Free Speech rights protected by the First Amendment of the United States Constitution as well as the Indiana Constitution.  While a Seventh Circuit case, Garcetti (a terribly decided case that will inevitably be overturned) might provide cover for the termination, that is an iffy proposition at best.

The wisest course of action was for Mayor Hogsett to do exactly what he did: publicly express extreme displeasure over the comments, give the employees modest discipline (not enough though that creates substantial damages necessary for a successful lawsuit) and warn the employees that such public commentary, even if made in a private venue, reflect negatively upon his administration and should be avoided.  Then, if despite those warnings the employees continue to engage in such objectionable speech attacking the Ten Point Coalition, it might be worth it to roll the dice and terminate the offending employees.  My guess is that won't be necessary - that Merriweather and Majors learned their lesson and will show better judgment next time.

No use making a federal case out of it...literally.  Senator Merritt's suggestion that the city employees be terminated for expressing objectionable political views in their personal social media accounts is a really, really bad idea.  Mayor Hogsett handled the matter correctly.


Anonymous said...

Garcetti is a U.S. Supreme Court case, so it likely won't be overturned anytime soon. But Garcetti requires that the speech have some connection to the employee's job duties for it to lose its First Amendment protection, and it doesn't seem like that would be the case here.

Paul K. Ogden said...

Anon 12:19, you're exactly right. Garcetti is from the Supremes. I'm just used to reading all the 7th Circuit cases in which they expand Garcetti well beyond the limited scope it was probably intended. You are right that if the speech is not connected to your employment then, under Garcetti, it is protected by the First Amendment. But the 7th Circuit has been very expansive in interpreting whether certain speech is related to one's employment duties.

Paul K. Ogden said...
This comment has been removed by the author.
Paul K. Ogden said...

I should clarify for others that Garcetti is about a government employer sanctioning government employees for speech. (i.e. there is state action.) It does not have anything to do with non-government employers which are generally free to take discipline and even fire their employees for speech the employer does not like.

Anonymous said...

Pretty sure Meriweather and Majors were referring to 10 Point's spending of a 4-year $700,000 grant from the city they got about 2014. Most of the money went for paying people to show up at gatherings, according to their IRS 990 forms. Some people have questioned where the money went, without making hard accusations. In 2018 the city denied them further big grant money, the takeaway being Hogsett didn't think giving 10 Point more money was a good idea.

Anonymous said...

Shameless political opportunist and a_s kisser Michael McQuillen, Council Minority leader tried to use the situation to his advantage by inviting a pastor one of his "favorite" groups, The Ten Points Coalition" to lead the prayer at Monday's Council meeting. Calling them Ten Points rather than Ten Point Coalition revealed his lack of familiarity with them.