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Fired prison guard's speech rights debated

Prison guard who made political Facebook comments lost his job.

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By Laura A. Bischoff, Columbus Bureau Updated 10:24 PM Friday, January 27, 2012

COLUMBUS — The firing of a Lebanon Correctional Institution prison guard who once was commended for saving the life of a suicidal inmate has ignited debate over free speech in the workplace and whether it extends to threatening comments on an employee’s Facebook page.

The ACLU of Ohio is ready to help prison guard Jessie Hubbard, 41, of Trenton, fight to get his job back after he was fired for posting a Facebook comment about Gov. John Kasich in May.

Hubbard wrote on May 3: “Ok we got Bin Laden...let’s get Kasich next... who is with me?” Seventeen people, including four other state prison workers, hit the “like” button and some Facebook friends responded that they would join Hubbard if he brought cookies.

“It was a joke. It really was. Like I would really posse up and go to Columbus and get the governor. It’s absurd,” said Hubbard, a volunteer youth football coach and 14-year employee of the state Department of Rehabilitation and Correction.

Hubbard’s posting didn’t garner much attention until a co-worker sent an anonymous letter to Kasich’s office in mid-September and the governor’s staff turned it over to the Ohio Highway Patrol. The Butler County prosecutor declined to pursue criminal charges and told state officials to handle it administratively.

ACLU of Ohio Executive Director Christine Link said the posting didn’t represent a credible threat. “It’s kind of outrageous. But no reasonable person thinks he is going to hop in his car and go hunt down the governor,” Link said. “It seems to be pretty clearly protected speech.”

Kasich press secretary Rob Nichols, however, said that Hubbard’s remark can only be interpreted as threatening and the same posting directed at the president of the United States would immediately bring an investigation by the U.S. Secret Service.

Hubbard, who has more than 700 friends on Facebook, identifies himself on the social media site as a state of Ohio employee. “It’s sad that when you’re on a personal forum amongst friends that you have to watch it,” he said.

The firing touches on an increasingly controversial workplace issue: With the ubiquitousness of social media, when do an employee’s private words become public? Or is anything said on a social media site private?

Department of Rehabilitation and Correction Director Gary Mohr said Facebook as a public forum. He decided to dismiss Hubbard for violations of the employee code of conduct.

But Case Western Reserve University Law Professor Raymond Ku, who is co-director of the Center for Law Technology and the Arts, agreed with Link that Hubbard probably has a good case for getting his job back. He noted that Hubbard’s Facebook comment is akin to the anti-Kasich bumper stickers that people displayed during the Senate Bill 5 collective bargaining debate last year.

“The reality is that it’s no different,” he said.

Top-notch employee

During his career, Hubbard was twice named officer of the month and was described in annual reviews as a stellar employee who showed good leadership ability, exceeds expectations and keeps a level head under pressure, according to his personnel file obtained by the Dayton Daily News. He was reprimanded once for tardiness.

Hubbard is not the first state employee to be disciplined over comments made through social media or text messages, officials said. Mohr said three investigations are pending over three other employees who allegedly made inappropriate remarks on Facebook about an incident inside a prison.

After Hubbard’s dismissal Jan. 17, Mohr sent a memo urging his management team to remind the 12,229 department employees to be careful about what they post on social media.

“Staff must know that remarks that are not acceptable and inappropriate when made in person are not acceptable when made in social media like Facebook; and in fact are more documentable,” he wrote.

Kasich had little to say about the posting or the discipline meted out to Hubbard.

“Look, people shouldn’t be saying things like that about anybody anywhere any place any time,” he said. But we (the governor’s office) were not involved in that.”

The four employees who clicked on the Facebook “like” button received written reprimands, according to union officials.

Hubbard received roughly $13,350 in paid leave during the four-month internal investigation and could be eligible for back pay if he wins his appeal and returns to his $43,400-a-year job. Union officials said the ACLU could step in after Hubbard exhausts his administrative appeals, which are expected to take three to six months.

Private sector can fire at will

Experts say there is a big difference between public and private sector employees when it comes to free speech protections.

Private sector employers can fire workers at will workers without considering whether the employees’ criticism or comments are legitimate, Ku said.

Last year, the National Labor Relations Board ruled that criticism posted on social media is tantamount to complaints made around the workplace water cooler, which are protected. But that ruling only applies to unionized employees, Ku said.

Public employees’ free speech rights are protected, with some limits, Ku and Link said. The U.S. Supreme Court ruled in 1968 that a public employee’s exercise of free speech on matters of public importance can’t be the basis of dismissal as long as the worker doesn’t knowingly make false and reckless statements. Another more recent case found that government employees’ free speech is not unbridled when it comes to commenting on the functions of the workplace, Link said.

Link said speaking out on Facebook enriches democracy and public debate. However, she said, employees need to realize they could face discipline at work.

“Social media would be so much better if we could all be a little more civil about it, but democracy does not require that we be civil,” she said.

Tim Shafer, operations director for the Ohio Civil Service Employees Association, the union that represents Hubbard, noted the governor publicly threatened to run people over with a bus if they got in the way of his agenda.

“That’s part of the problem with these folks — all these double standards,” Shafer said.

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