A state employee is asking a federal judge to stop the Department of Natural Resources from punishing her after she referred to a leading candidate for governor as an “a–clown” on social media.
Candus Thomson, a spokeswoman for the Maryland Natural Resources Police, was demoted last month from her position after making a critical comment about Ben Jealous’ decision to veto a reporter’s participation in a debate with Republican Gov. Larry Hogan, according to filings in U.S. District Court in Baltimore. Thomson is not seeking monetary damages but is asking a federal judge for a temporary restraining order and for a preliminary injunction that would, at least temporarily, reverse her demotion.
James Astrachan, of Astrachan Gunst Thomas PC, in court filings wrote that, “It is clearly established law that a state actor cannot punish or sanction a state employee for exercising her constitutional right to free speech.”
Thomson’s demotion came after she responded to a post about Jealous vetoing Hagerstown Herald-Mail reporter Tamela Baker from participating in a scheduled debate.
“Her comment was a single word: ‘a–clown,’ wrote Astrachan. “It was intended to be both strong and assertive and convey her belief that Mr. Jealous was acting in an ill-behaved and inappropriate manner.”
Stephen Schatz, a spokesman for the Department of Natural Resources, declined to comment citing pending litigation and personnel issues.
A Department of Natural Resources social media policy enacted in August 2016 by Secretary Mark Beltin provides guidelines for the use of social media by department employees both on the job and from personal accounts.
The policy, obtained by The Daily Record, urges employees using personal accounts to “be mindful that what you post online will remain in the public domain indefinitely.” The policy calls for employees to use their own names and to refrain from comments about coworkers or supervisors or the agency or state that are “vulgar, obscene, threatening, harassing,” or violate other policies regarding discrimination, harassment, and violence in the workplace.
Schatz did not respond to questions about the social media policy.
The policy does not set rules for commenting on political issues or other items of public interest.
Exactly how much protection a government employee enjoys under the First Amendment is not always clear.
The 2006 Supreme Court case Garcetti v. Ceballos establishes that an employee’s job sometimes extends beyond its official description. It also protects employees’ comments, under some circumstances, when the speech is clearly done as a private citizen, according to the Freedom Forum Institute.
As part of that test, government employees must also meet two other standards. The first of those standards is proving that the matter commented on by the employee was a subject of public concern. Additionally, the employee’s right to free speech is outweighed by the government employer’s interest in efficiently providing services to the public.
Thomson made her comment on the personal-professional Facebook page of Bryan P. Sears, a reporter for The Daily Record. She posted it at 5 a.m. from her personal tablet device in her home. Astrachan said Thomson’s comments are protected by the First Amendment and Thomson therefore cannot be sanctioned by her government employer.
“(Thomson’s) Facebook comment was in response to an action taken by a candidate for public office in his capacity as an official candidate,” wrote Astrachan. “The treatment of reporters by public officials is a topic of grave public concern in today’s world. (Thomson) exercised her freedom to express the opinions and thoughts of an individual running for office. The platform used to express the opinion, a personal Facebook page, does not diminish the level of public interest.”
Thomson voluntarily removed the post on Sept. 18 after being confronted by her immediate supervisor, who asked if she had made such a post.
A week later, Thomson said, she was informed that her role as spokesman for the policing agency had been stripped. Astrachan said the demotion “removes her from the daily flow of activity and reduces her to clerical duties.”
In an email, Department of Natural Resources Deputy Secretary Joanne Throwe told Thomson the reduced responsibilities were “management prerogative.”
Thomson, who is not a political appointee, has held the position with the Maryland Natural Resources Police since 2013 when she was hired under then-Gov. Martin O’Malley, a Democrat. Astrachan described Thomson’s annual performance evaluations as nearly perfect. Prior to joining the department, Thomson was a journalist for 40 years, including 25 at the Baltimore Sun.
Astrachan said Thomson is being punished for exercising her free speech rights outside of work. The lawyer added that the comments made by Thomson were not disloyal to Hogan and in fact “shows no discord between the political ideology of the employee and the employer.”
“Ms. Thomson’s comment on Facebook regarding Mr. Jealous’ veto of Ms. Baker from the gubernatorial debate was a substantial factor, if not the sole factor, in the secretary’s decision to remove Ms. Thomson’s duties,” Astrachan wrote.