They have plenty of cause to fire his sorry ass. From the Civil Service Rulebook,
If it can be agreed that this is “conduct unbecoming a state employee”, there are grounds for disciplinary action, up to and including dismissal.
Obviously, I’m merely speculating, but this guy seems like a “true believer”, and I would be afraid if I were Armstrong.
I do a fair amount of MI employment law (employer side), and I don’t know that I’d want my clients to use these actions to dismiss someone. There’s a pretty strong argument that he’s acting as a private citizen, and exercising his free speech rights. Could they try? Sure, but I think they would lose, and lose hard.
Certainly not by only changing civil service rules. In that case Shirvell could be fired and keep right on stalking. And there would be no barrier at all to mere “civilian” stalkers.
Unfortunately, it can’t be agreed.
“Conduct unbecoming a state employee,” is not merely a catch-all phrase that captures conduct that rubs people the wrong way. Typically the conduct has to be illegal, or in some other way objectively objectionable. Given that these actions were done as a private person and have First Amendment protection, it simply isn’t enough.
Well, they could always just fire him and deal with the lawsuit when it happens. Were I the State of Michigan, I’d much rather have Mr. Crazypants off my employment rolls when he did something really crazy and I had to defend that lawsuit.
Well, then, what’s the legal definition of “objectionable”. Surely there are legal acts that are objectionable in the common language definition.
I haven’t looked, but you seem to have and perhaps can recall, but isn’t the commission of a crime a separate and separately punishable act than “conduct unbecoming…”? If that’s the case, it reduces “conduct unbecoming…” to a totally redundant and meaningless clause. Which is pretty close to what Cox claims it is.
And to add, I rarely see such consensus on these boards that Shirvell’s conduct is, in the sense most of us understand the English laguage, “objectively objectionable”.
Then you rewrite his Position Description to add a performance measure something like this: “Demonstrated ability to treat all people fairly regardless of race, religion, nationality, handicap status, or sexual orientation”. His off the job activities demonstrate that he lacks the ability to treat homosexuals fairly (even if he himself is gay) and he could be given an unsatisfactory annual performance review.
I don’t think you’d win on that one either. You’d have to show that he’s exhibited bias in his job duties. It doesn’t matter if he burns crosses (in a legal manner) on the weekends as long as his job performance doesn’t demonstrate his prejudice.
Anyway, what makes you think the people of Michigan are interested in treating homosexuals fairly?
The PPO hearing was postponed from this afternoon to October 25 due to “the service of court papers”.
The outrage over this case
Yes, they could. And undoubtedly he would be an unsympathetic character if the matter went to trial.
So he can be more or less safely screwed out of his legal rights.
There’s a consensus among the legal commentators here that his conduct does not rise to the level that would be required to dismiss him. Interesting that you don’t focus in that, since that’s the relevant inquiry.
No, that’s not permissible. You cannot bootstrap his private, off-hours actions into his job description like that. You can certainly use his work performance to demonstrate his failure to comply with that rule, however.
Had only you replied to my post immediately preceding the one you did reply to.
Pretty close, yes. As the Michigan Court of Appeals said in discussing a similar rule for police (“Conduct unbecoming an officer,”):
Thank you for your reply to the second portion of my post? Could you expound a bit on the first part…
Idea for a GD thread if somebody would like to start it: at what point does harassment- including cyber- violate freedom of speech. It seems the laws are a bit outdated in places where cyberbullying is not direct addressed, defined, and can/can’t do actions clearly delineated.
I’ve never thought that the Phelps’ protest of funerals should be protected by free speech, and I’d honestly say exactly the same thing about anybody protesting the funeral of Karl Rove or Dick Cheney. Running their websites and protesting in general I have no problem with, but this clearly wasn’t what was intended by Freedom of Speech as it’s deliberately intended to cause emotional distress. I don’t dispute that the laws as written allow this, but I think the laws need to be tightened and can be without infringing legitimate freedom of speech.
That’s pretty self-serving. Everybody hates Phelps. That’s exactly why his right to express himself in a public place should be protected. Phelps’s message is very political, and reads directly on public policy. The only reason to stifle him would be because you didn’t like his opinion. If you don’t want to hear Phelps’s message, have your funeral in a private place. You don’t have a right to be protected from him.
As for “intentional emotional distress,” I think anybody who claims to be hurt by the words of a lunatic like him is a self-serving liar. No one with any confidence in their own convictions would give a second thought to Phelps.
In fact, I’m glad that Phelps exists, because he serves as a real test of our free speech convictions. By being both 100 percent harmless and 100 percent offensive, he makes us put up or shut up. And we need that in order to temper any natural tendency to backslide or give in to hypocrisy.