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A federal judge for the Northern District of New York has found that a public benefit corporation employee was engaging in protected free speech when he defended his boss and agency against corruption charges, but that the new administration had a right to fire him because of the potentially disruptive nature of his conduct. The unusual decision by Chief U.S. District Judge Frederick J. Scullin Jr. applies the balancing test articulated in the U.S. Supreme Court’s ruling in Pickering v. Board of Education, 391 U.S. 563 (1968), and concludes that the plaintiff’s free speech rights are trumped by the consequences of his exercising those rights. Defense counsel Michael J. Hutter Jr. of Thuillez, Ford, Gold & Johnson in Albany, N.Y., said Chief Judge Scullin’s decision is “one of the few cases where it was found that the speech was within First Amendment protection but because of disruptiveness under Pickering, it is not protectable.” Johnson v. Capital District Regional Off-Track Betting Corp., 5:98-CV-903, involves a former employee of an embattled public benefit corporation. William Johnson was a top aide to Davis Etkin, then chief executive officer and board chairman of the Capital District Regional Off-Track Betting Corp. (OTB), for approximately 17 years. Etkin became a highly controversial figure throughout the 1990s and was the target of extensive media scrutiny as well as state and local investigations into OTB’s management and financial practices. Following his retirement in 1998, Etkin pleaded guilty to engaging in conduct to defraud OTB and to bribing a witness who was to testify against him before a Schenectady County grand jury. Etkin, 73, was sentenced to a two-year term but was recently released to house arrest after serving 64 days behind bars. At Etkin’s direction, Johnson said he undertook an effort to support his boss and the agency to convince public officials, newspaper reporters and “anyone else who would listen” that Etkin was unjustly accused of malfeasance. In 1998, 14 holdovers from the Etkin administration, including Johnson, were fired by the new board chairman, Thomas Cholakis. Johnson responded with a $6 million civil action under 42 U.S.C. �1983, alleging First and 14th Amendment violations. The First Amendment claims distilled to two issues: whether Johnson had engaged in public speech of the type that would be protected under the First Amendment; and if so whether those rights could survive a challenge under Pickering. Chief Judge Scullin said there is no question that Johnson’s speech involved matters of public concern, thus implicating the Pickering test. In Pickering, the U.S. Supreme Court said that a government employee may be terminated for speaking on a matter of public concern only if: the claim of disruption is reasonable; the potential disruption is severe enough to outweigh the value of the speech; and the firing was based on the disruption and was not in retaliation for having engaged in an exercise of free speech. Here, Chief Judge Scullin found, Johnson’s statements on behalf of the Etkin administration could have been “viewed as a tacit endorsement of the … status quo, and thus, as implicitly resisting the management reform initiatives” of the Cholakis administration. The court held that the potential for disruption was particularly acute since the new administration assumed authority under a mandate to “remedy lingering perceptions of corruption and to regain the public confidence.” Chief Judge Scullin also rejected Johnson’s free association claim, based on the allegation that his ouster resulted at least in part because of his refusal to contribute to the Republican Party. The court said there was no evidence to support that allegation. Hutter said the court’s Pickering analysis is of particular significance. “We felt the implication of a contrary ruling would have been distasteful and harmful,” Hutter said. “If he had rejected our claim the precedent of having to keep on board someone who was openly supporting the prior administration would have been astounding. But it was not a slam dunk. It was a very close case.” John D. Charles of Clifton Park, N.Y., counsel for Johnson, said there will almost certainly be an appeal. “You can’t fire someone for political motivations, and that is what we think happened,” Charles said.

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