CIR Files for Summary Judgment in Free Speech Case

On July 11, CIR filed a motion for partial summary judgment on behalf of New York civil servant Salvatore Davi.  After months of discovery, including depositions of numerous New York officials and review of thousands of documents, the record demonstrates that Davi was engaged in a private, after-hours discussion on Facebook in which he never mentioned his job and which concerned a significant issue of public policy: the appropriate goal of welfare programs.

A purely private statement on a matter of public concern should rarely, if ever, justify punishment of a public employee and only if the employer can show that it acted on a reasonable belief that the speech would disrupt the workplace to a degree that outweighs the First Amendment importance of off-work speech on a matter of genuine public concern.

CIR’s motion makes clear that New York cannot meet its burden of showing that it acted on the basis of reasonable fear of disruption.  For starters, Davi’s superiors made no effort to investigate even such basic questions as whether any of the welfare recipients whose cases were adjudicated by Davi had ever complained about his recommended decisions.

Other facts that Davi’s superiors would have learned had they bothered to investigate: Davi’s decisions favored welfare recipients in a large percentage of the cases; there were no complaints by any welfare client about Davi’s Facebook post; neither were there complaints by any of the legal aid societies that supposedly were informed of the post; Davi’s five years of twice-yearly performance reviews were filled with satisfactory comments with no mention of bias; and, the Facebook post was part of a private conversation that could not be accessed by the public.

The final kicker was that despite trying to get Davi fired and then demoting and re-assigning him to another position, Davi was assigned once again to review determinations concerning eligibility for welfare benefits — the very same work it was alleged he was too biased to perform.

Once briefing is complete in early October, the court will rule on CIR’s motion as well as the state’s cross motion for summary judgment.

Photo: Courtroom for the Eastern District of New York.