On April 26, 2016, the United States Supreme Court, in a 6 – 2 decision, held in Heffernan v. Paterson, New Jersey et al. that a public sector employee’s First Amendment right was violated even though the employee had not, in fact, engaged in protected political activity, if his employer mistakenly believed he engaged in protected activity.

The Court said that, “In this case a government official demoted an employee because the official believed, but incorrectly believed, that the employee had supported a particular candidate for mayor.”
The Supreme Court stated that the question is whether the official’s factual mistake makes a legal difference since the constitutional harm – discouraging employees from engaging in protected speech or association – is the same whether or not the employer’s action rests upon a factual mistake.

Heffernan was a police officer with the Paterson Police Department and worked out of the office of the Chief of Police, James Wittig. “At that time, the mayor of Paterson, Jose Torres, was running for reelection against Lawrence Spagnola. Torres had appointed to their current positions both Chief Wittig and a subordinate who directly supervised Heffernan. Heffernan was a good friend of Spagnola.”
At his mother’s request, Heffernan went to Spagnola’s election headquarters to pick up a lawn sign for her. “While there, he spoke for a time to Spagnola’s campaign manager and staff. Other members of the police force saw him, sign in hand, talking to campaign workers. Word quickly spread throughout the force. The next day, Heffernan’s supervisors demoted Heffernan from detective to patrol officer and assigned him to a ‘walking post.’ In this way they punished Heffernan for what they thought was his ‘overt involvement’ in Spagnola’s campaign.”
“Heffernan subsequently filed this lawsuit in federal court. He claimed that Chief Wittig and the other respondents had demoted him because he had engaged in conduct that (on their mistaken view of the facts) constituted protected speech. They had thereby ‘depriv[ed] him of a ‘right . . . secured by the Constitution.’”

The District Court held that he had not, in fact, engaged in protected activity and, therefore, he had not been deprived of a constitutionally protected right.
“The Court of Appeals for the Third Circuit affirmed. It wrote that ‘a free-speech retaliation claim is actionable under §1983 only where the adverse action at issue was prompted by an employee’s actual, rather than perceived, exercise of constitutional rights.’” (Emphasis in original.)
The U.S. Supreme Court accepted the case for review and reversed.

Court Discussion
“With a few exceptions, the Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate.”
The Court notes that “exceptions take account of ‘practical realities’ such as the need for ‘efficiency’ and ‘effective[ness]’ in government service.” However, “(i)n order to answer the question presented, we assume that the exceptions do not apply here. We assume that the activities that Heffernan’s supervisors thought he had engaged in are of a kind that they cannot constitutionally prohibit or punish, but that the supervisors were mistaken about the facts. Heffernan had not engaged in those protected activities.”
Section 42 U. S. C. §1983 “authorizes a lawsuit by a person ‘depriv[ed]’ of a ‘right . . . secured by the Constitution.’ But in this context, what precisely is that ‘right?’ Is it a right that primarily focuses upon (the employee’s) actual activity or a right that primarily focuses upon (the supervisor’s) motive, insofar as that motive turns on what the supervisor believes that activity to be? The text does not say.”

Citing to prior cases regarding the First Amendment, the Supreme Court notes that those cases all involved activity which actually occurred and was the type of activity protected by the constitution. In each of the cited cases, “the only way to show that the employer’s motive was unconstitutional was to prove that the controversial statement or activity – in each case the undisputed reason for the firing – was in fact protected by the First Amendment.”  But in the instant case, Heffernan did not engage in any protected activity – he was merely doing a favor for his mother by picking up the yard sign.

The Court also cites to the case of Waters v. Churchill, 511 U. S. 661 (1994), where “the employer reasonably but mistakenly thought that the employee had not engaged in protected speech. Here the employer mistakenly thought that the employee had engaged in protected speech. If the employer’s motive (and in particular the facts as the employer reasonably understood them) is what mattered in Waters, why is the same not true here? After all, in the law, what is sauce for the goose is normally sauce for the gander.”

“We conclude that, as in Waters, the government’s reason for demoting Heffernan is what counts here. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U. S. C. §1983 – even if, as here, the employer makes a factual mistake about the employee’s behavior.”

“(T)he First Amendment begins by focusing upon the activity of the Government. It says that ‘Congress shall make no law . . . abridging the freedom of speech.’ The Government [City of Paterson] acted upon a constitutionally harmful policy whether Heffernan did or did not in fact engage in political activity.”
Furthermore, the Court states, “Heffernan was directly harmed, namely, demoted, through application of that policy.”

“(W)e do not require plaintiffs in political affiliation cases to ‘prove that they, or other employees, have been coerced into changing, either actually or ostensibly, their political allegiance.’ The employer’s factual mistake does not diminish the risk of causing precisely that same harm. Neither, for that matter, is that harm diminished where an employer announces a policy of demoting those who, say, help a particular candidate in the mayoral race, and all employees (including Heffernan), fearful of demotion, refrain from providing any such help.”

“The upshot is that a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.”

However, the Court stated that the Police Department’s policy might not, in fact, have violated the constitution. As noted above, there are situations where restrictions on political activity might not be unconstitutional.
“There is some evidence in the record, however, suggesting that Heffernan’s employers may have dismissed him pursuant to a different and neutral policy prohibiting police officers from overt involvement in any political campaign. Whether that policy existed, whether Heffernan’s supervisors were indeed following it, and whether it complies with constitutional standards, are all matters for the lower courts to decide in the first instance.” As such, the matter was remanded for further proceedings.


Issues regarding public sector employees and the First Amendment, and, in particular, the right of public employees to participate in political activity has protected in a variety of ways. In California, for example, the Public Safety Officers’ Procedural Bill of Rights Act (Gov Code 3300 – 3313) addresses this issue directly.

Gov Code Section 3302 (a) states that “(e)xcept as otherwise provided by law, or whenever on duty or in uniform, no public safety officer shall be prohibited from engaging, or be coerced or required to engage, in political activity.” There are other laws in California which generally protect a public sector employee’s right to engage in political activity. However, for example, political activity can be restricted if one is a “policy maker.”

In the case of Fazio v. City and County of San Francisco, 125 F.3d 1328 (1997), the court described that if the employee is “a policymaker, then . . . his government employment could be terminated for purely political reasons without offending the First Amendment.”
The factors a Court must consider in identifying a ‘policymaking’ position are: “vague or broad responsibilities, relative pay, technical competence, power to control others, authority to speak in the name of policymakers, public perception, influence on programs, contact with elected officials, and responsiveness to partisan politics and political leaders.”

The holding in the Heffernan case, however, alerts the government employer that if it makes a mistake, believing the employee is either engaging in protected activity or not and acts upon that belief, it can, potentially, subject the employer to liability for the adverse action taken.
The Court holds that the reasoning behind its decision, as noted above, is because, “a discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake.” The case reinforces the need to, as in all matters involving the law, seek out and secure advice and guidance from your agency’s designated legal advisor.

As always, if you wish to discuss this case in greater detail, please feel free to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.
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