Dear Mr.
Law:
Please
be advised that Mr. Alderman has retained my services concerning the adverse
employment action which the Pocahontas County School Board ("Board") has taken
against him.
I
have reviewed the March 21, 2006 hearing transcript and your letter dated April
10, 2006. Based on the same I am advising the Board that ratifying Mr.
Alderman’s suspension and proposed termination will constitute a violation his
clearly established statutory and constitutional rights.
First,
you allege Mr. Alderman was insubordinate based solely on the "venomous tone and
nature" of his remarks at the March 21, 2006 hearing. From this you
amazingly conclude that his alleged "lack of self control in a professional
setting raises serious doubts about [his] capacity to interact appropriately
with students in a classroom setting."
However,
a thorough review of the transcript reveals that Mr. Alderman at all times
behaved appropriately. While it is true he was critical of the Board and
some of its individual members he never engaged in any inappropriate or illegal
conduct. For example, he never cursed, threatened, physically attacked or
provoked, screamed, yelled or otherwise was disorderly. The fact that
neither president Vance nor any other Board member ruled that Mr. Alderman was
out of order conclusively establishes this point. In light of these facts,
I am simply dumfounded that you could conclude that he was somehow insubordinate
and posed, as you stated, "a risk to student safety and welfare." This is
especially true considering his exemplary service record and long history of
employment with the Board.
Based
on the above and your repeated reference to the subject matter of Mr. Alderman’s
comments both at the hearing and on his electronic newsletter, it is clear that
your purported concerns about Mr. Alderman’s allegedly insubordinate behavior
and risk to student safety are merely pretextual
excuses designed to conceal the Board’s long lasting campaign to censor Mr.
Alderman’s critical speech.
As
you may know, I represented Mr. Alderman in Alderman v. Pocahontas County
School Board et al., Civil Action No. 2:03-CV-29 in the United States
District Court for the Northern District of West Virginia. Mr. Alderman
filed that action after the Board had him unlawfully arrested and unsuccessfully
prosecuted for simply attempting to exercise his First Amendment and statutory
right to record a public hearing.
As
a result of that case the Board agreed to pay Mr. Alderman a significant sum for
attorney fees and his personal damages, apologize to Mr. Alderman, draft rules
and regulations concerning the public’s right to record Board meetings and
undergo First Amendment training concerning
Mr.
Alderman had hoped that this settlement would cause the Board to cease its
unlawful attempts to prohibit him from engaging in constitutionally protected
activity. Apparently this is not the case.
Mr.
Alderman unequivocally has a First Amendment right to engage in speech which is
critical of the Board and its individuals members so
long as that criticism is a matter of public concern. See
There
are numerous examples of similar cases from multiple jurisdictions supporting
Mr. Alderman’s position. See Rankin v. McPherson, 483 U.S. 378 (1987)
(public employee’s comment that she hoped the next assassination attempt on the
president would be successful was matter of public concern); Pickering v.
Board of Education of Township High School Dist. 205, Will County, 391 U.S.
563 (1968) (public official’s statement criticizing the local school board’s
allocation of funds between educational and athletic programs and of both the
board’s and the superintendent’s methods of informing or preventing the
informing of, the district’s taxpayers the real reasons why additional tax
revenues were being sought is protected public speech); Givhan, (private _expression of statements
critical of the public school district desegregation policies was protected
speech); Kincade v. City of Blue
Springs, 64 F.3d 389, 398-99 (8th Cir. 1995) (city engineer voiced safety
concerns regarding a construction project), cert. denied, 134 L. Ed. 2d 665, 116
S. Ct. 1565 (1996); Lambert v. Richard, 59 F.3d 134, 137 (9th Cir.)
(plaintiff criticized library director's
mismanagement), cert. denied, 133 L. Ed. 2d 523, 116 S. Ct. 673 (1995);
Ramirez v. Oklahoma Dep't of Mental Health, 41 F.3d 584, 593-95 (10th
Cir. 1994) (plaintiffs complained of mistreatment of a mental patient);
Williams v. Kentucky, 24 F.3d 1526, 1537 (6th Cir.) (plaintiff reported
employer's illegal activities), cert. denied, 130 L. Ed. 2d 312, 115 S. Ct. 358
(1995); Bieluch v. Sullivan, 999 F.2d
666, 673 (2d Cir. 1993) (police officer headed groups which campaigned against a
school construction proposal and a proposed town budget), cert. denied, 510 U.S.
1094, 127 L. Ed. 2d 219, 114 S. Ct. 926 (1994); Gorman v. Robinson, 977
F.2d 350, 356 (7th Cir. 1992) (plaintiff informed FBI of his employer's
wrongdoings); Stough v. Gallagher, 967
F.2d 1523, 1528-29 (11th Cir. 1992) (captain spoke in support of sheriff's
political opponent); Brawner v. City of
Richardson, Tex., 855 F.2d 187, 191 (5th Cir. 1988) (police officer made
serious allegations of possible police misconduct).
The
Board’s suspension and proposed termination is not only a violation of Mr.
Alderman’s state and federal constitutional rights but also violates his
statutory protection as a whistle-blower. West Virginia Code Section
6C-1-3 et seq., provides a cause of action to any
employee of a public body who is retaliated against for having made a good faith
report concerning a public body or its individual member’s wrongdoing. The
act also provides for damages, attorney fees, injunctive relief and civil
penalties against a public body and its members for illegal retaliatory
conduct. Clearly Mr. Alderman’s comments entitle him to protection as a
whistle-blower.
Finally,
even if a court were to determine that Mr. Alderman’s comments do not deserve
statutory or constitutional protection, they certainly do not justify Mr.
Alderman’s termination. I have researched similar grievance Board cases and
have not found one example where a public body’s termination was upheld based
solely on a individual’s critical
comments.
Thus,
please reconsider the Board’s suspension and proposed termination of Mr.
Alderman. Failure to do so will result in litigation which will end with
the Board again having to pay Mr. Alderman damages and
attorney fees and costs.
Please
do not hesitate to call if you have any questions.
Jason