CIR Files for Summary Judgment in Free Speech Case

On July 11, CIR filed a motion for partial summary judgment on behalf of New York civil servant Salvatore Davi.  After months of discovery, including depositions of numerous New York officials and review of thousands of documents, the record demonstrates that Davi was engaged in a private, after-hours discussion on Facebook in which he never mentioned his job and which concerned a significant issue of public policy: the appropriate goal of welfare programs.

A purely private statement on a matter of public concern should rarely, if ever, justify punishment of a public employee and only if the employer can show that it acted on a reasonable belief that the speech would disrupt the workplace to a degree that outweighs the First Amendment importance of off-work speech on a matter of genuine public concern.

CIR’s motion makes clear that New York cannot meet its burden of showing that it acted on the basis of reasonable fear of disruption.  For starters, Davi’s superiors made no effort to investigate even such basic questions as whether any of the welfare recipients whose cases were adjudicated by Davi had ever complained about his recommended decisions.

Other facts that Davi’s superiors would have learned had they bothered to investigate: Davi’s decisions favored welfare recipients in a large percentage of the cases; there were no complaints by any welfare client about Davi’s Facebook post; neither were there complaints by any of the legal aid societies that supposedly were informed of the post; Davi’s five years of twice-yearly performance reviews were filled with satisfactory comments with no mention of bias; and, the Facebook post was part of a private conversation that could not be accessed by the public.

The final kicker was that despite trying to get Davi fired and then demoting and re-assigning him to another position, Davi was assigned once again to review determinations concerning eligibility for welfare benefits — the very same work it was alleged he was too biased to perform.

Once briefing is complete in early October, the court will rule on CIR’s motion as well as the state’s cross motion for summary judgment.

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: Motion for Summary Judgment Pending

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