Speak Your Mind, Lose Your Job
Entertainment-industry maven Peggi McKinley, our very own martyr for free speech, recently experienced a kind of harmonic convergence that could only happen in Miami. Just as the town was preparing to welcome the third annual MIDEM international music conference, McKinley received some news that was like music to her ears: The federal court of appeals in Atlanta announced that she could proceed with her lawsuit against Miami-Dade County, a lawsuit that arose from comments about the MIDEM convention she'd made nearly two years earlier in her role as a member of the county's Film, Television, and Print Advisory Board.
After the conclusion of MIDEM's debut event, the organization had threatened to pull out of Miami if the county insisted on enforcing its anti-Cuba ordinance. That law prohibits the Miami-Dade from doing business with any group engaged in any sort of commerce with the island nation. In its first year, MIDEM acceded to the restriction and did not invite any musical groups or vendors from Cuba, a decision that drew intense fire from music-industry executives around the globe.
The county's policy, in turn, elicited criticism from McKinley at a meeting of entertainment-industry professionals. This is what she said: "While we respect and appreciate the concerns of Cuban Americans in the exile community, allowing a few people's political standpoint to dictate the potential economic growth of the area is not for the benefit of the community as a whole."
Former County Commissioner Bruce Kaplan had nominated McKinley to the Film, Television, and Print Advisory Board, and when he saw those words reported in the Miami Herald, he promptly informed McKinley that her comments were "totally inappropriate and insulting to the community I represent," and that they were "akin to saying we should have let Nazis in while Hitler systematically butchered six million Jews." The next day he asked his fellow commissioners to approve his request that McKinley be removed from the film advisory board. With only Katy Sorenson objecting, they consented and McKinley was given the boot.
A firestorm of controversy ensued, the main thrust of which concerned McKinley's right to speak her mind without fear of official retaliation. A month after the initial incident, the American Civil Liberties Union filed suit in federal court on her behalf, claiming that the commission, in dismissing her for her words, had violated her constitutional rights under the First Amendment. The remedy McKinley sought: reinstatement to the board.
That lawsuit had made little progress before Senior U.S. District Court Judge James Lawrence King when Kaplan abruptly resigned from office after state prosecutors brought criminal charges against him for filing false financial-disclosure forms. The county attorney's office, defending the commission against the complaint, then argued that McKinley's lawsuit should be tossed out because her case was moot: Kaplan could not reinstate her because he no longer a commissioner. Judge King agreed and dismissed the case.
McKinley's ACLU lawyers appealed the decision. On June 14 a three-judge panel of the higher court issued its ruling: King had erred; McKinley should be allowed to pursue her case and amend her complaint to seek monetary damages instead of her old spot on the advisory board.
Although a noteworthy victory for the lawyers representing McKinley -- the ACLU's Andrew Kayton and private attorney Louis Jepeway, Jr. -- the appeals court decision in no way addressed the question of whether her constitutional rights had been violated. Still, where once it appeared she'd been silenced, now McKinley will have an opportunity to make her case.
Her legal team is confident the law is on their side, and there's no doubt McKinley enjoys widespread public support, both personally and for the opinion she expressed. But a courtroom victory this time is far from assured.
One thing to keep in mind as this volatile case heads back to court: It is not a test of the county's anti-Cuba ordinance. It is strictly a First Amendment issue. The ACLU says McKinley should not have been fired for expressing her opinion; the county says elected officials have an absolute right to remove from office an appointee whose views do not reflect their own.
Assistant County Attorney Lee Kraftchick, defending Kaplan and the county commission, declines to discuss specifics of the McKinley case but, speaking generally, acknowledges that the U.S. Supreme Court has afforded First Amendment protection to individuals in the public sector when they speak out on "issues of public concern." That protection, however, is not absolute. Over the past 30 years, courts have come to apply a sliding scale of considerations in determining the extent to which a public employee's speech is protected.
One of those considerations examines whether the employee's speech affects job performance. In a precedent-setting 1968 case, the Supreme Court came to the aid of a schoolteacher who'd been punished for writing a letter to a newspaper criticizing his school board for its financial policies. That expression of opinion, the court said, did not interfere with the teacher's classroom responsibilities, and so it was protected by the First Amendment.
At the other end of the scale would be the office chatterbox. "It's okay for people to speak out on issues of public concern," Kraftchick notes, "but work also must get done. We're paying them to do a job, not just express opinions." So, in theory at least, a Miami-Dade County employee who spent every working hour of every day talking about Alex Penelas's proposed transportation tax might lawfully be fired because he simply wasn't performing his job.
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."
If the county can reach all the way into the private life of an employee and administer punishment for offensive and inflammatory speech, how can Peggi McKinley expect to be protected, especially when she was only a nonpaid appointee, not a salaried staffer? As attorney Kraftchick says, "The people with the least protection are those appointed by elected officials."
As unpleasant as it must be for an honorable fellow like Lee Kraftchick to defend a scumbag like Bruce Kaplan, he will be doing so with considerable legal support and with an important principle at stake: Within limits an elected official should be free to shape a staff of paid aides and volunteer appointees who share his or her political philosophy. Citizens who don't approve of the politician's conduct in that sphere can take their revenge at the next election.
Had the reprehensible Mr. Kaplan not been forced to resign, I'd like to think he would have paid the price at the polls for the Peggi McKinley affair. I know I would have enjoyed the opportunity to exercise my own right of free speech in exhorting voters to throw the bum out.
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