ABITRATOR UPHOLDS TERMINATION BY SHERIFF'S OFFICE.

Recently, Downes Fishel received a decision from Arbitrator Mary Jo Schiavoni in a case involving the termination of a deputy in a Sheriff’s Office. Arbitrator Schiavoni upheld the termination. The case involved inappropriate statements made by the deputy on a blog that was operated by the local newspaper. The deputy used a nickname but it was obvious that he was an employee of the Sheriff’s Office. While the deputy offered some opinions, he also made false and derogatory statements about employees of the Sheriff’s Office, including the Sheriff.

The Employer investigated the matter and interviewed the deputy. During the multiple interviews, the deputy lied on numerous occasions, including explicit denials that he made these blog entries. Eventually, the deputy admitted to making the entries. It is important to note that the deputy was represented by the Union throughout the process. The Employer terminated the deputy for making false and defamatory statements and lying during the investigation.

At the hearing, the Union argued that discipline was improper because the deputy’s statements were protected by the First Amendment. The Union also claimed that the Employer had no right to investigate the blog entries since they were protected by the First Amendment. Therefore, the false statements were irrelevant.

The Arbitrator analyzed the statements made by the deputy along with relevant case law concerning the First Amendment. The Arbitrator concluded that the deputy made postings that were made with reckless disregard for the truth, detrimental to the effective operation of the Sheriff’s Office and potentially libelous. The Arbitrator concluded that many statements made by him were of a personal nature and did not address matters of public concern. Under these circumstances, public employers have significant discretion and control over the management of its personnel and the First Amendment does not prevent discipline. In addition, the Employer properly terminated the deputy based on the inappropriate statements, his untruthfulness during the internal investigation and his prior discipline.

Discipline cases involving potential Constitutional issues can be very difficult. Public employees retain their Constitutional rights and a public employer’s actions cannot violate those rights. In addition, it is crucial for the employer to educate the Arbitrator on the law in this area because it is clear that these rights are not unlimited.