Civil Suit Raises Social Media, First Amendment Issues; Wicomico Official Was Terminated For Facebook Page

SALISBURY — In what appears to be one of the first real tests of social media and First Amendment rights, at least locally, a former Wicomico County employee filed suit this week against the county asserting he was wrongfully terminated for starting a Facebook page to open a discussion on Wicomico’s proposed employee handbook revisions.

Former Wicomico County Emergency Management Coordinator David Inkrote filed suit in U.S. District Court against Wicomico County and three of his supervisors claiming his First Amendment rights to free speech were violated when he created a Facebook page in March to provide a forum for discussion on the county’s proposed new employee handbook. The suit seeks an undetermined amount in compensatory and punitive damages and could be a test case for an employee’s use of Facebook and other social media.

In March, the Wicomico County Council reviewed during a publicly televised session on PAC-14 a draft of the new county employee handbook. According to the suit filed on Tuesday, the proposed employee handbook would make substantial revisions to the existing handbook, which has been in effect since 2003.

For example, the new employee handbook would appear to replace tenurial employment, under which county employees could be terminated only for cause at the discretion of the employer, with at-will termination. In addition, the proposed employee handbook would make significant reductions in the employee benefits available to county employees, particularly with regard to health insurance and the availability of accrued paid time off.

According to the suit filed this week, the proposed revisions to the employee handbook set off a storm of public commentary on local blog sites and other media outlets. Supporters of the proposed revisions applauded the new handbook for saving the county money and reducing its administrative burden. Detractors claimed it was unfair to employees while making employment with the county less desirable and making it more difficult to attract qualified candidates.

Inkrote found himself in the middle of the discussion with several fellow county employees asking him questions about what the changes would mean. According to the suit, Inkrote shared those concerns with Councilman Larry Dodd, who suggested in an email that Inkrote should start a Facebook page to facilitate the discussion of the new employee handbook.

On March 21, acting on Dodd’s suggestion, Inkrote established a private Facebook account, on his own time and using his own computer to promote the discussion of the proposed employee handbook. Participation in the Facebook page was by invitation only and Inkrote invited several current county employees along with retirees to openly discuss the changes in the handbook. By the next day, there were 88 members and discourse on the Facebook account, which was civil, courteous and focused on the pertinent issues, according to the complaint filed this week. Eventually, 176 county employees participated in the Facebook discussions including the Deputy Director of Emergency Services, who posted the PAC-14 video of the council meeting when it was introduced.

“Mr. Inkrote participated in Facebook discussions only on his own time, and apparently, so did the other Facebook participants,” the complaint reads. “Facebook activity was subject to written ground rules imposed by Mr. Inkrote requiring participation to be civil, courteous and appropriate and virtually all participants complied. The Facebook account engendered no interference with participants’ workplace activities and did not disrupt operations in the workplace in any fashion.”

Nonetheless, less than a week after establishing the Facebook page, Inkrote was informed by his supervisors that he was being terminated. The correspondence attached to the termination acknowledged “the employee has a First Amendment right to Facebook for personal use, but the county does not condone behavior that subjects county employees to anti-county government behavior,” and that “the county cannot support a website that isolates or criticizes management and its practices.”

Inkrote, through counsel, then filed an formal grievance challenging his termination, asserting among other things he had not engaged in on-the-job activities, made no use of any official information not available to the public and that he had done nothing that “might reasonably be deemed as malicious, coercive, discourteous, inconsiderate or unprofessional,” and that his actions were “protected by the First Amendment in that they were undertaken on his own time and using his own computer and simply promoted appropriate discussion of matters of general public interest.”

In May, the county’s Personnel Board held a hearing on Inkrote’s formal grievance and ultimately upheld his termination. Left with no other recourse, Inkrote through his attorney filed suit this week in U.S. District Court claiming free speech retaliation under the First Amendment. The suit seeks relief from economic losses including back pay and benefits. The complaint also points out Inkrote was terminated with less than two years left until he was eligible for county retirement benefits.

The suit seeks an undetermined amount in compensatory and punitive damages and a declaratory judgment that Inkrote’s right to free speech under the First Amendment were violated.

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