Talking Trash

A CITY EMPLOYEE'S REMARK about the ignorance and inefficiency of city government is protected under the First Amendment, according to a ruling by a federal appeals court.

Jack Wainscott began working for the city of Marion, Ill., as a laborer and equipment operator in the Streets and Sanitation Department. In 1998, then-Mayor Ron Mowery appointed him superintendent of the department. After William Henry was elected mayor in 1999, he confronted Wainscott after learning that Wainscott intended to embarrass the new administration by neglecting to keep adequate supplies of materials. Henry told Wainscott that he would “fire [his] ass in a heartbeat” if he lied.

Before Mayor Henry took office, Wainscott stepped down as superintendent and took a nonsupervisory position where he continued to annoy the new mayor by, among other things, encouraging department workers to file grievances. In August 2000, Wainscott and another employee were working on a demolition job when Fred Troxel, a city resident and supporter of the mayor, began talking with the two men. Shortly thereafter, a roll-off truck arrived on the scene, and the driver asked the city workers where he was supposed to deliver a dumpster for demolition debris. According to Troxel, Wainscott responded, “The city administration [does] not know what it [is] doing from one day to the next.”

Later, Troxel called the mayor and reported what Wainscott had said. The mayor regarded Wainscott's comment as false and grounds for dismissal. The next day, the mayor called Wainscott into his office and handed him a letter stating he was terminated for insubordination, referring to the remark at the demolition site.

Wainscott filed a grievance protesting his termination. A hearing board reduced his punishment to a suspension and six months' probation during which he could not make any statements on management issues or administration policies. Wainscott filed suit against the mayor in federal district court, alleging a violation of his First Amendment free speech rights. After the district court ruled in favor of Wainscott, the mayor appealed.

A three-judge appellate panel upheld the decision of the lower court. First, it found that Wainscott's remark criticizing the city administration amounted to “speech on a matter of public concern” and not a rant by a disgruntled employee. “Whether the city is run in an efficient and effective manner is clearly an important … public concern,” the panel said. “[H]ighlight[ing] the misuse of public funds or breaches of public trust is a critical weapon in the fight against government corruption and inefficiency,” it added. Moreover, Wainscott's speech still would be protected despite “a history of animosity” between him and the mayor, the court said.

The appeals court found that Wainscott's interest in speaking out outweighed the city's speculative concern about disruption in the department. “To suggest the vague criticism … made to a single co-worker would … wreak havoc in the department is, at best, dubious,” the panel said.

[Wainscott v. Henry, 315 F.3d 844 (7th Cir. 2003)]

The columnist is aWashington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].