69. Is the mayor's action constitutional?

The government often requires persons who accept government jobs to submit to loyalty oaths and refrain from certain conduct, such as campaigning. Such regulations may impact the freedom of speech and association, however. Loyalty oaths will not be upheld if they are overbroad, including prohibiting constitutionally-protected activities or are so vague that they have a chilling effect on First Amendment activities. Speech that is not made pursuant to an employee's official duties, and which is a matter of public concern, such as regarding policies of elected officials, requires courts to balance the employee's rights as a citizen to comment against the government's interest as an employer in the efficient performance of public service. The U.S. Supreme Court has held that the government may not fire an employee because of the employee's political views or affiliations unless certain political views or affiliations are required for the effective performance of the employee's job. See, e.g., Branti v. FIinkel, 445 U.S. 507 (1980).

B is correct. The mayor's action is unconstitutional because it violates the employee's right to freedom of expression and association protected by the First Amendment. The U.S. Supreme Court has held that the government may not fire an employee because of the employee's political views or affiliations unless certain political views or affiliations are required for the effective performance of the employee's job. The political views or affiliations of a clerical employee of a city water department are not relevant to the employee's job, and thus the employee may not be fired because of them.

A is incorrect. This answer reaches the correct answer with the wrong reasoning. A public employee has a property interest in his or her employment if the employee can be fired only for cause. Because the city's charter provides that «all employees of the city work at the pleasure of the mayor,» the clerical employee does not have a property interest in his employment.

C is incorrect. As explained above, the clerical employee does not have a property interest in his employment because the city charter provides all city employees are at-will. However, the mayor's actions are still unconstitutional because they violated the employee's right to freedom of expression and association.

D is incorrect. While it is correct that the mayor can require some members of her administration to be politically loyal, a clerical water department employee is not serving the mayor in such a capacity where political loyalty is relevant to his job performance.