First Amendment Protects Speech, Not ‘Mere Candidacy’ For Public Office

Brian Keating is a deputy for the Wayne County, Michigan Sheriff’s Department. In 2006, Keating ran for sheriff against Warren Evans. During the election, Keating was transferred from his road patrol position to one in the County jail. When Keating was informed of his transfer, he became very upset and announced his resignation. Keating later calmed down and reported for his new job at the jail, but he was not permitted to work.

Keating filed a grievance through the collective bargaining agreement that covered rank-and-file members of the Department. Before an arbitrator heard the grievance, and while Keating still was not working, he was subjected to a traffic stop on March 17, 2007. Members of “Evan’s elite undercover unit” pulled Keating over on a freeway, and administered a sobriety test. After Keating passed, they let him go.

In April 2007, the Arbitrator ruled that Keating’s resignation should not be given effect and ordered him reinstated to his position at the jail. After Keating returned to work, he attended an office Christmas party. At the party, he “was advised by a fellow officer that she and other members of the elite undercover team appointed by Warren Evans were instructed to follow Keating and to pull him over and cause him to undergo a field sobriety test.”

In 2008, Keating again ran for public office. Later, Evans refused to promote Keating to Sergeant. In addition, following Keating’s reinstatement by the Arbitrator, Evans refused to deputize him.

Keating filed a lawsuit under the First Amendment, alleging that Evans’ decisions were retaliation for Keating having run for office. A federal district court dismissed Keating’s lawsuit.

The problem, the Court found, was that “the First Amendment protects the right of public employees to speak out on a matter of public concern. Although First Amendment protection covers political speech, it does not extend to mere candidacy. Therefore, public employees have no First Amendment right to run for office against their bosses and still keep their jobs.

“Keating’s complaint contains no allegations of any speech on a matter of public concern. Instead, Keating alleges only that he was a candidate for office. Because the First Amendment does not protect mere candidacy, the Court finds that Keating has not alleged that he was deprived of a right secured by the federal Constitution or laws by a person acting under color of state law.”

Keating v. Evans, 2011 WL 3472706 (E.D. Mich. 2011).

This article appears in the December 2011 issue.