Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SATURDAY, July 22, 1995 TAG: 9507240024
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: PAUL DELLINGER STAFF WRITER
DATELINE: PULASKI LENGTH: Medium
Town Attorney Frank Terwilliger was asked to draw up the policy, which was adopted Tuesday by Pulaski Town Council.
"The reason why we asked Frank to address this is there was a complaint by a couple of employees," Town Manager Tom Combiths said Friday. "That prompted us to take a look at some kind of policy."
He said the complaint involved nonverbal communication, such as lapel pins. The policy says employees may not use buttons, pins, wall pictures or posters, desk objects and the like to convey views on political, religious or social issues.
Combiths said the idea was to help town employees look at the kinds of things others could consider to be offensive or controversial.
Terwilliger had met with all 100 or so town employees and explained the reasons for the policy before it was adopted. The town's Human Relations Committee subsequently presented it to council with a recommendation to adopt it.
"As a municipality," the policy states, "the town must remain free of partisanship and cannot promote or detract from specific ideologies or allow its employees to do so while transacting town business."
It covers both verbal and nonverbal communications, and is meant to apply in conjunction with, and not in place of, other town policies covering such areas as political activity and sexual harassment.
Representatives of two civil liberties groups have expressed reservations about the policy, saying it may go too far.
That possibility was underscored Wednesday, one day after the Pulaski council's action, in a federal judge's opinion in a Franklin County teacher's suit against the School Board and others.
Franklin County High School math teacher Lari Scruggs resigned, after being told she wouldn't be rehired the following school year, after a controversy over remarks that two students said she made when they asked her opinions of Black History Month and interracial dating.
The board tried to have the suit dismissed, but U.S. District Judge Jackson Kiser said the First Amendment question should go to a jury.
Kiser cited a 1994 Supreme Court case, Waters vs. Churchill, which he said "marks a significant new approach in the law" in some cases involving free speech by public employees. It is so new, he said, that there is little case law on the appellate level to follow when applying it.
He said the Waters decision says government employees may speak on the job about matters of public concern and can be disciplined for it only if the speech's ``potential disruptiveness'' to the workplace sufficiently outweighs the employee's First Amendment rights.
``Given that government employees do not lose all of their First Amendment rights when they come to work, the government may have to make a `substantial showing' that the speech is, in fact, likely to be disruptive before it may be punished,'' Kiser said.
Even if the potential disruptiveness outweighs the employee's right to speak, he wrote, the employer can take action based only on the disruption, not the speech itself.
A University of Virginia law professor said Friday that the Waters decision was reached more on procedural than constitutional grounds, and could not say if it might apply to the Pulaski policy.
The Waters decision is the latest to grow out of the Pickering case 27 years ago, said Robert O'Neil, director of the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville. Some new variation of the 1968 case has emerged in practically every court term since then, he said.
O'Neil said there are several grounds for restricting the speech of public employees. One would be when a public employee discloses confidential information received in the course of employment. Another would occur when an employee holding a high position in an agency might be seen as speaking for it.
He said Pulaski might consider limiting its policy to high-ranking employees or expressions harmful to local government. As it is, he said, "It strikes me that that's a very broad sweep for the assertion of that particular issue. ... There may be narrower ways to achieve that objective."
Staff writer Jan Vertefeuille contributed information to this story.
by CNB