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21. In this case, the court should hold that the county recorder's dismissal of the clerk was
The clerk sued for reinstatement and back pay. His only claim is that the dismissal violated his constitutional rights.
On the day an attempted assassination of the governor of the state was reported on the radio, the clerk remarked to a coworker, «Our governor is such an evil man, I am sorry they did not get him.» The clerk's coworker reported this remark to the clerk's employer, the county recorder. After the clerk admitted to making the remark, the county recorder dismissed him stating that «there is no room in this office for a person who hates the governor so much.»
A clerical worker has been employed for the past two years in a permanent position in the County Public Records Office in a particular state. The clerk has been responsible for copying and filing records of real estate transactions in that office. The clerk works in a nonpublic part of the office and has no contact with members of the public. However, state law provides that all real estate records in that office are to be made available for public inspection.
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If speech is not made pursuant to an employee's official duties, and the speech is a matter of public concern, courts must balance the employee's rights as a citizen to comment on a matter of public concern against the government's interest as an employer in the efficient performance of public service.
The U.S. Supreme Court has held that the firing of a government employee for expressing disappointment that a political assassination attempt failed was invalid. Rankin v. McPherson, 483 U.S. 378 (1987). The Court reasoned that in the context in which the statement was made, it was not an actual threat nor an action that would have interfered with official duties. Rather, it was mere commentary on the politician's policies.
B is correct. Public employees have the right under the First Amendment to express their views on issues of public concern. The statement made in this case regarding the merits of the governor was clearly on a matter of public concern. However, the court must weigh the interests of the employer in fulfilling its duties against the interests of the employee speaking as a private citizen. Here, the employee's comments had nothing to do with his job of copying and filing real estate records and could not be said to have interfered with his duties. Additionally, because he had no duties to interact with the public, any notoriety he gained or public disruption would not affect his ability to do his job. Therefore, the court should hold that his termination was unconstitutional.
A is incorrect. This answer reaches the correct answer with the wrong reasoning. Takings is not the issue here because the clerk had no vested property right to a permanent position with the government office. Rather, the issue applicable here is whether the clerk's right to comment freely as a citizen outweighs any possible impairment of his duties due to the nature of the speech. Because the speech had no impact on his ability to file and copy real estate records, and thus didn't interfere with his duties, the firing was unconstitutional.
C is incorrect. While the court must apply a balancing test in this case, this answer choice states the incorrect state interest. Rather than employee loyalty, the governmental interest at issue is whether the clerk's speech interfered with carrying out his duties.
D is incorrect. The matter is justiciable; there are two sides — the government and the clerk — with stakes in the matter of the firing. The dispute is about an injury that one caused to another, and the court may provide a remedy. Additionally, even if public employment is not considered a right, the «privilege» cannot be conditioned on relinquishing a fundamental right.