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Another sliding-scale consideration may be more relevant to Peggi McKinley, and it gets to the heart of the county's contention that politicians have great leeway in their treatment of appointees. "Courts don't want to tell elected officials who they can and can't have on their staffs," says Kraftchick. "There are problems with separation of powers" between the legislative and judicial branches of government.
Moreover, the county attorney adds, "There's some expectation that a person hired or appointed by a politician as an advisor or public representative should adopt the political position of the person they're serving." According to that line of reasoning, the closer a person is to the politician, the less protection he has under the First Amendment. A chief of staff who publicly contradicts his boss on an important policy matter can expect a pink slip. No free-speech guarantees there. But a county maintenance worker expressing the same thought at a public forum would be afforded much greater protection against retribution by the elected official.
So where is Peggi McKinley's place on that sliding scale? Certainly her comments, which were part of an expansive discussion regarding the future of the MIDEM music conference, didn't interfere with her volunteer job on the county's film advisory board. Just the opposite, say her attorneys.
"Peggi McKinley's duty was to advise; that was her role," insists attorney Louis Jepeway, Jr. "She merely expressed the view that since we're in the United States, all types of people should be permitted to perform here, and the nuts running around shouldn't be allowed to make policy. It was an advisory board. No utterance she could make would merit removal."
Suppose she had stood up at the meeting and shouted: Bruce Kaplan is an idiot! Says Jepeway: "She is protected in insulting Kaplan. She was on the county commission's advisory board, not Kaplan's. And besides, she would have been right."
Kaplan's presumed idiocy aside, the idea that McKinley could freely insult one of her bosses (or otherwise say something that ticked off one of her bosses) may not fit squarely with a real-life case right here in Miami-Dade County. In 1983 the county's consumer advocate, Walter Dartland, brought suit in federal court after Sergio Pereira, then county manager, fired him over caustic remarks he'd made. The consumer advocate, known for his outspokenness, was quoted in print as calling Pereira a "paid lackey" of the county commission. The manager begged to differ and axed Dartland, who then claimed his First Amendment rights had been violated. But the federal appeals court in Atlanta disagreed. Chalk one up for the county and its attorney handling the Dartland case: Lee Kraftchick.
And what about McKinley's "proximity" to the politicians in question? Far from being a county employee protected by civil service guidelines or union contracts, she was simply an appointee who served at the pleasure (or whim) of the county commission. If she fell from favor, for whatever reason, wouldn't she be subject to removal from the advisory board?
"An appointee is not the personal property of an elected official," says the ACLU's Andrew Kayton. "Was close political affiliation [with Kaplan] needed for effective performance? Political conformity not only was not needed, it would have been inconsistent with the purpose of the advisory board. Peggi wasn't there to propagate the views of anyone on the commission, or even in county government. She was there to represent the interests of the entertainment industry."
Kayton's argument brings to mind another real-life case, again right here in Miami-Dade County. In December 1990, Rev. Willie Sims, who worked for the county, preached to his congregation from the pulpit at the Greater New Faith Missionary Baptist Church in Liberty City. The subject was the black boycott of the county's tourism industry, brought on by the official snubbing of South African leader Nelson Mandela during a Miami visit. (Mandela earlier had committed the unforgivable sin of expressing gratitude to Fidel Castro for his moral support during Mandela's 27-year incarceration.)
The feisty Sims, a veteran employee of the county's Community Relations Board, encouraged his flock to do all they could to further the boycott. Then he complained that blacks sometimes "are made to feel like foreigners in our own homeland because of the way Spanish is spoken" in so many places around Miami.
Those who were here at the time will recall the explosive reaction to the reverend's remarks. Hispanic leaders went ballistic. Then-County Manager Joaquin Avino responded by suspending Sims for three days, charging that he had "aggravated and inflamed" racial and ethnic tensions while the county was employing him to ease tensions. Sims sued, claiming his right to free speech had been violated.
Indeed, to many people it seemed a stretch that the government could penalize Sims for remarks he'd made in his private life as a clergyman. But Atlanta's federal appeals court, in a split decision, again sided with the county and its persuasive attorney Lee Kraftchick. According to the prevailing judges, "The First Amendment does not require that Sims be allowed to continue his weekday employment drenching the fires of racial animosity for the department, while he fans those flames during his weekend sermons."