Motion Granted! — Sal Davi Can Speak Freely

On March 3, U.S. District Judge Edward R. Korman ruled that the New York Office of Temporary and Disability Assistance (OTDA) violated Sal Davi’s right to free speech when officers demoted him over comments he made in a private Facebook conversation.  Davi had criticized current welfare programs for encouraging dependence rather than helping people become self-sufficient, and officers at the OTDA alleged that his comments demonstrated bias against welfare recipients. 


CIR sued the OTDA on behalf of Davi arguing that the agency had punished him purely for the content of his speech.  Davi had worked for the OTDA as administrative law judge for five years — hearing appeals from welfare recipients who had been denied benefits.  During that time Davi’s supervisors praised his work, noting in particular his “unbiased approach to his job.” 


The court ruled in favor of Davi, finding that his comments were “political speech about the proper role of government” and thus “among the most highly protected speech in our constitutional order.”  Moreover, the OTDA lacked evidence that Davi’s comments showed any actual bias or were likely to cause a disruption to the offices work, which suggested “[the officers] sought to fire Davi because he held disfavored views.”  The court ordered Davi’s superiors to reinstate him as an ALJ.  


In a rare decision, the court ruled that several officials face personal liability for their actions against Davi.  Ordinarily, state officials are shielded from personal liability for constitutional deprivations by the doctrine of “qualified immunity.”  But the doctrine does not apply to actions that show deliberate indifference to clear constitutional violations.  In this case, officers ignored their own, thorough investigation, which produced no evidence of wrongdoing, bias, or disruption, by Davi. Yet they attempted to fire him anyway.   

Since 2010, Davi has served as a Hearing Officer and an Administrative Law Judge in New York State’s Office of Temporary and Disability Assistance. In this role, Davi hears the appeals of those who are initially denied eligibility for New York’s public assistance programs and then makes recommendations to his superiors on whether or not applicants should be granted welfare assistance. Davi was considered an exemplary employee.

Demoted for Political Speech

In October of 2015, Davi engaged in an argument on Facebook about the merits and success of social welfare programs. In response to an article that praised certain programs, Davi argued that the article used the “wrong metric” in determining success. According to Davi, any welfare program should be judged by measuring “how many people or families they get back on their feet.” In order to achieve this end, Davi suggested that there be a social safety net “of limited duration and designed to get people back to self-sufficiency.”

One of the participants in the Facebook argument made an anonymous complaint to Davi’s employer, the Office of Temporary and Disability Assistance. After receiving the complaint and reviewing Davi’s remarks, the state suspended him without pay, alleging that Davi engaged in misconduct that prevented him being able to provide a fair hearing to the cases brought before him. This despite the fact that Davi’s conversation occurred on a private Facebook page, that he discussed no specific welfare program or applicant, and no applicant ever alleged unfairness or requested a rehearing of Davi’s rulings.

Davi was charged with seven counts of professional misconduct, all of which were related to his Facebook comments. At his arbitration hearing, the arbitrator refused to consider any First Amendment defense and upheld four of the seven charges against Davi on the grounds that Davi’s Facebook comments destroyed his credibility and revealed a prejudice against the applicants who came before him.

The charges were asserted and upheld without offering any evidence that Davi acted with prejudice while performing his duties. In the thousands of cases Davi heard, he was never once accused of acting with bias. In fact, in 95% of his cases, Davi recommended the applicant be approved to receive aid from the state.

Yet despite Davis exemplary record, the charges were upheld and he was demoted. The message was clear: those with the wrong political opinions cannot be trusted to work in the New York Civil Service.

CIR Files Suit

CIR represented Davi in a state court proceeding to have the arbitration finding vacated. Among other things, CIR argues that the arbitration award violated public policy because Davi’s speech was protected by New York Civil Service Law § 107(1), which provides that no “removal from [a civil service] office or employment . . . shall be in any manner affected or influenced by” a civil service employee’s “political opinion.”

CIR has also filed a Federal case arguing that Davi’s employers discriminated against him on the basis of his political views in violation of the First Amendment. Davi did not sacrifice his right to free speech when he began working for the state of New York. His Facebook postings are constitutionally protected political speech. To hold otherwise would be to contend that the state of New York is allowed to discriminate based on political beliefs when considering hiring, retention, and promotion of public servants – the type of discrimination that the First Amendment clearly forbids.

Case Status: Summary Judgment Granted, Further Proceedings Pending

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