Firing of R.I. Governor's Staffer for Pro-Gaza-Ceasefire/"End to the Occupation" Post Violated First Amendment
From Sanchez v. Almond, decided Wednesday by Judge John McConnell (D.R.I.):
Mr. Sanchez began working at the office of Rhode Island Governor Daniel J. McKee in May 2021 as a "constituent services" staffer. The office is "the first point of contact with the public for the Governor's office" where employees handled calls, emails, letters, walk-ins, constituent problems, requests, and questions about the Governor's positions.
Mr. Sanchez was not a member of senior staff, and did not formulate policy, or policy developments. While the scope of his employment is shaded differently by the parties, they all agree that his duties involved, among other things, helping Rhode Islanders access public benefits and triaging their concerns by referring them to the appropriate departments. The office received roughly 500 calls and 400 emails per month.
Mr. Sanchez's direct supervisor was David Barricelli, who reported to Joseph Almond, Senior Deputy Chief of Staff, who in turn reported to Antonio Afonso, the Chief of Staff in charge of hiring and firing in the Governor's office, including Mr. Sanchez. Mr. Sanchez's performance was never called into question, and he was never disciplined before his termination….
Sanchez was also a Providence City Council member (and his superiors had not objected to his running for local office).
On October 7, 2023, Hamas attacked Israel killing roughly 1,200 people and Israel responded with fierce military actions in Gaza, whose population is overwhelmingly Palestinian. That day, the Governor's office issued a statement condemning "the abhorrent acts of terrorism by Hamas against innocent civilians in Israel" and expressed solidarity with Israel.
The same day, Mr. Sanchez posted on his personal social media a call for "respect of all human rights, especially the Palestinian people who faced atrocities for decades[,] and at the same time condemn all attacks on civilians." Ten days later, Mr. Sanchez posted that the United States was "actively aiding in a genocide" and called for "immediate deescalation and cease-fire."
On October 22, 2023, while off duty, he posted on the platform "X" (formerly known as "Twitter"):
"prov did not disappoint … yesterday, I marched with thousands of people calling for an immediate ceasefire and a [sic] end to the occupation"
The video attached depicted scores of people marching in Providence, Rhode Island. Some members of the Governor's staff thought that rally participants had chanted "from the river to the sea." That said, nothing suggests that Mr. Sanchez adopted or repeated that phrase nor is there evidence to suggest he endorsed that chant, or is in favor of violence. {No one disputes Mr. Sanchez's account "@MSanchezPVD" represents his employment as a City Councilman not his employment at the Governor's office suggesting that he was acting outside his capacity in the Governor's office.}
The post led to concern at the Governor's office, and to media questions:
On October 23rd, the Governor's Director of Legislative and Intergovernmental Affairs, Rico Vota, counseled Mr. Sanchez not to make new posts reflecting his opinion, to keep a low profile, to speak to Mr. Afonso, and to tell the communications team about any media inquiries. He did not, however, ask him to remove the posts. Mr. Vota notified Matthew Sheaff, the Governor's Senior Advisor for Communication, who likewise recommended that Mr. Sanchez keep a low profile, which Mr. Sanchez did.
That same day, two media outlets, NBC 10 WJAR and The Providence Journal's Katherine Gregg, asked the Governor's office about the rally but did not mention Mr. Sanchez or his posts. In response, the Governor issued a statement that he "unequivocally condemn[ed] the despicable acts of war and terror perpetrated by Hamas against the people of Israel."
The next day Ms. Gregg asked the Governor's communications team to confirm that Mr. Sanchez worked for the Governor and Mr. Sheaff replied that "… [a] member of our senior staff has spoken with the individual, and the situation is under review." Ms. Gregg also contacted Mr. Sanchez, but he did not respond to her and instead told Mr. Sheaff about her inquiry, apologizing for "dragging you guys into this."
On October 25th, Ms. Gregg published an article identifying Mr. Sanchez as a Constituent Services associate; NBC 10 WJAR and a WPRO radio host then asked the office about him, and NBC 10 reported on the post. A state legislator asked Mr. Vota whether the employee in the article "worked downstairs."
On October 26th, Mr. Barricelli reported to Mr. Almond that Constituent Services had received three emails and two phone messages about Mr. Sanchez's post, all after Ms. Gregg's article. Mr. Almond did not consider these "to be a lot," and they did not interfere with the office's operations. Mr. Almond testified that addressing such matters was within his own regular duties, and Mr. Barricelli testified that fielding such comments is the associates' job.
Afonso and Almond demanded that Sanchez take the post down, but he refused; he was then fired. Sanchez sued, and the court held that Sanchez's First Amendments rights were violated (and so clearly that the defendants weren't entitled to qualified immunity):
The First Amendment protects the right of a public employee to speak on matters of public concern, and that right "is not lost when an individual chooses to work for the government." Public employees' speech on matters of public concern, on their own time, is speech long understood to "occup[y] the highest rung of the hierarchy of First Amendment values." Nonpolitical public employees do not "surrender" their First Amendment rights by accepting government employment. …
The Court "must balance the interests of the employee, as a citizen, in commenting upon matters of concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." "This balancing act is commonly referred to as the Pickering balancing" after the Supreme Court's decision in Pickering v. Board of Ed. (1968)….
On Mr. Sanchez's side, speech on public issues occupies the greatest of First Amendment protection, and the stronger the speech interest, the stronger the justification the employer must offer. {The interest by the employee and the public is heightened when the employee is also an elected official, as was Mr. Sanchez.} …
On Defendants' side, legitimate interests include avoiding unnecessary disruption and inefficiency, maintaining discipline and harmony in the workplace, and protecting close working relationships that depend on loyalty and confidence. A reasonable prediction of disruption receives significant weight, and an employer need not wait until disruption becomes manifest before acting. Courts are more willing to credit such a prediction where some disruption has occurred….
Defendants contend that the post sent "a mixed message on the Governor's public stance." Mr. Afonso testified that some constituents conflated Mr. Sanchez's view with the Governor's. Even so, there was little room for genuine confusion. Mr. Sanchez's account identified him as a city councilor and never mentioned the Governor. The press, not the post, connected him to the Governor's office.
Crediting Mr. Afonso's testimony, nothing in the record shows that constituents conflated Mr. Sanchez's position with the Governor's that was traceable to the post itself. Mr. Sanchez's account cannot be reasonably understood as speaking on behalf of the Governor such that it would cause confusion in either the Governor's office or the public's perception….
[As to actual disruption, c]rediting Defendants' version of the record, in the five days between the post and the termination, the Governor's office received: one Providence Journal inquiry following up on the social media posts; three emails and two telephone messages from the public; a question posed by a state legislator in the elevator to Mr. Vota; and a few other questions from NBC 10 and a WPRO radio host. The Court also credits Ms. Darocha's recollection that the Governor was asked about Mr. Sanchez at press gaggles that week; Mr. Sheaff's testimony that the matter "encompassed [his] day"; testimony that time spent on the matter was time not spent elsewhere; and the decision not to put an optional event on the Governor's calendar.
Mr. Almond testified the inquiries were not "a lot" and "did not interfere with the operation of the office" and Mr. Barricelli testified that handling such communications was essentially his associates' job. By its own account, that office spends roughly "85 percent" of its time responding to current events and media inquiries. Better said by Mr. Sheaff, "[i]t's very common that the Governor gives a statement or his thoughts on news of the day …[;] [i]t's just part of the job of being a governor." This is the ordinary business of a governor's office and nothing in the record suggests that the post affected the Governor's own work, his relationship with his staff, or the office's ability to serve constituents in an unusual way. Balancing these facts, and considering the Defendants' burden on this issue, the Court settles this score firmly against Defendants.
{Defendants also point to Mr. Sanchez's later acknowledgment that he had "put[ ] the [G]overnor in a tough situation" and that, "given my day job, these kinds of things can get messy quickly." Though affecting the Court's calculus, an employee's recognition that his speech is affecting his employer does not supply Defendants with the artillery they think it does.} …
Brian W. Haynes (Casner & Edwards, LLP) and Edward H. Trent, Gene C. Schaerr, and Miranda Cherkas Sherrill (Schaerr Jaffe LLP), and James A. Ruggieri (Higgins Cavanagh & Cooney, LLP) represent plaintiff. Note that I'm a part-part-part-time academic affiliated with Schaerr Jaffe LLP, but I didn't work on the case, and was indeed unaware of it until it came up in a Westlaw query of mine; no-one asked me to blog about it.