Attorney General: The Honorable Jodi Rell, Office of the Governor, 2004-010 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

July 12, 2004

The Honorable Jodi Rell
Governor
Office of the Governor
State Capitol
210 Capitol Avenue
Hartford, CT 06106

Dear Governor Rell:

You have asked me to determine whether the Ethics Commission adhered to applicable state statutes and regulations when it informed Alan Plofsky, the Commission's Executive Director, of the Commission's desire to suspend him without pay for two weeks as a result of remarks he made on June 3, 2004, to the League of Women voters concerning former Governor Rowland.

As you are aware, I have already informed the Ethics Commission that my office will decline to represent it if it pursues the proposed disciplinary action against Mr. Plofsky. Such action would be ill-advised and illegal, placing the state at risk for monetary damages and fostering an apprehension and aura of retaliation against public officials who provide information or comment on issues of public concern and importance.

The risk of liability for monetary damages payable by the state, along with expenses charged by outside counsel, increase the potential costs to taxpayers of this misguided course. The risks are real not just in financial terms, but in damage to the Commission's credibility. If the Commission believes there is a need for specific or clearer direction to staff in limiting their public comments, it may do so through guidelines or policies applicable to future conduct, rather than by discipline for past statements. Such prospective measures would avoid the current legal pitfalls of its proposed disciplinary actions.

In my opinion, the Commission must completely abandon its proposed action against Mr. Plofsky, keeping in mind the profoundly significant and demanding constraints of constitutional First Amendment and Due Process principles and statutory personnel act guarantees. These requirements impose a heightened burden here because the Commission is proposing discipline for statements on matters of critical public concern and interest.

In my view, disciplinary action against Mr. Plofsky would be contrary to sound, well-established public policy and the public interest. If the Commission nonetheless pursues such action, the Commission must strictly adhere to constitutional principles of free speech and due process.

As to First Amendment concerns, the proposed disciplinary action is flawed by possible violations of Mr. Plofsky's free speech rights. Under well established case law, a determination of whether a public employer has violated an employee's speech depends, in the first instance, on whether the speech involves a matter of public concern. Lewis v. Cowen, 165 F.3d 154 (2nd Cir. 1998). If so, the public employer must establish that its interest in promoting the efficiency of the public services it performs outweighs the public employee's right as a citizen to comment on matters of public concern. Pickering v. Board of Educ, 392 U.S. 563 (1968). The more the employee's speech tends to address or involve significant public concerns, the greater the level of damage or disruption to governmental functions that must be proven to justify punishing an employee for such speech. Connick v. Myers, 461 U.S. 138 (1983).

Here, there can be no dispute that the former Governor's actions discussed by Mr. Plofsky were of obvious public interest. Governor Rowland's previous admissions made in a statewide broadcast television address would cause the Ethics Commission substantial difficulty in proving that Mr. Plofsky's speech impeded or prejudiced the Ethics Commission's proceedings. Should the Ethics Commission fail to meet the heightened level of review required here, the state itself may be faced with claims of retaliation.

As you are also aware, the Due Process Clause of the United States Constitution requires that the state provide state employees with a "Loudermill hearing" before making a final decision on taking certain disciplinary actions -- especially actions that result in loss of pay. The term "Loudermill hearing" comes from a U.S. Supreme Court decision, Cleveland Board of Education v Loudermill Board, 470 U.S. 532 (1985). Although Loudermill was a case involving the termination of a public employee, the ruling has been applied to situations where the proposed discipline deprives the employee of any property interest (e.g. wages) or liberty interest (e.g. damage to reputation).

The purpose of a "Loudermill hearing" is to provide an employee an opportunity to present his side of the story before the employer makes a decision on discipline. Prior to the hearing, the employee must be given specific written notice of the charges and an explanation of the employer's evidence so that the employee can provide a meaningful response and an opportunity to correct factual mistakes in the investigation and to address the type of discipline being considered.

In the present case, contrary to the Due Process Clause procedures established for disciplinary action, the Commission appears to have made a decision to impose discipline on its Executive Director without giving him written notice of the charges against him or a full opportunity to respond to the discipline considered by the Commission.

Finally, there is compelling reason to doubt that the Commission even had the authority to take any disciplinary action against Mr. Plofsky. Recently approved Public Act 04-204, which became effective on June 3, 2004, added two additional members to the Ethics Commission and requires the presence of six members of the Commission to establish a quorum for all decision making, except in the specifically enumerated instances set forth in the Public Act. Disciplinary decisions are not excepted from the six member quorum requirement. There were only five Commission members present at the meeting when disciplining Mr. Plofsky was initially decided. The Commission, therefore, must reconsider its decision with a quorum of six Commission members.

If you have any additional questions or concerns, do not hesitate to contact me.

Very truly yours,


RICHARD BLUMENTHAL


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