Reversal of Virginia state employee's pay cut for posting criticism of President Obama

|The Volokh Conspiracy |

An administrative judge (William S. Davidson) reversed the pay cut (and accompanying demotion and month-long suspension) in October, but the decision was just posted on Westlaw a few days ago. An employee of the Virginia Department of Corrections posted the following on his personal Facebook page (a page that indicated that he worked at the department):

Dear Barack Obama,

You are cordially invited to a cookout tomorrow at my house. I would like to sit out on the back deck and discuss global warming in the 10 inches of snow and subzero temperatures that are forecasted. You, however, will not be invited inside due to my fears that you may confiscate my possessions and give to the drug dealers, thieves and prostitutes whom the police have so unfairly targeted. I also fear you may take my guns and give them to the Mexican drug cartels so they can further strengthen their hold on our border. I also admit I have a Bible I read daily and could be targeted by ISIS. However that isn't really your concern just payback from the crusades I suppose. Stay warm my friend and I look forward to hearing from you.

Sincerely, [Grievant]

P.S. This will require you to make a decision so I'm not EXPECTING a response.

The Department concluded that this violated its Operating Procedure 310.2—Information Technology Security, which provides that, "when posting entries on the internet, employees should ensure that they do not undermine the public safety mission of the [Agency]. They should not post information, images or pictures which will adversely affect their capacity to effectively perform their job responsibilities or which will undermine the public's confidence." Because of this, the employee "was suspended for 26 days, demoted and received a 10% reduction in his pay band."

The administrative judge reversed the decision:

Operating Procedure [310.2] is inapplicable in dealing with a personal computer at the Grievant's home and on the Grievant's time. Accordingly, I do not reach the First Amendment issue that was also raised in this matter. Should either [the Office of Employment Dispute Resolution or the Department of Human Resource Management] find that OP 310.2, does address personal computers used on a Grievant's time at a Grievant's home or that Policy 1.75 [Use of Electronic Communications and Social Media], which has appeared in this matter for the first time at the hearing, apply, then I will need to address the First Amendment issue and attempt to untangle what is, at best, an exceedingly sticky wicket.

Glad to see the result, but sorry to see that a government agency was willing to punish this sort of criticism of the president in the first place.