39 year old father of 2 fired from goverment job over off duty political protest

[KILL THE WISE ONE]

Koran burner Derek Fenton booted from his job at NJ Transit

Derek Fenton was fired for burning pages of the Koran near Ground Zero on 9/11.

Derek Fenton's 11-year career at the agency came to an abrupt halt Monday after photographs of him ripping pages from the Muslim holy book and setting them ablaze appeared in newspapers.

Fenton, 39, of Bloomingdale, N.J., burned the book during a protest on the ninth anniversary of Sept. 11 outside Park51, the controversial mosque slated to be built near Ground Zero.

http://www.nydailynews.com/ny_local/2010/09/14/2010-09-14_koran_burner_derek_fenton_fired_from_his_job_at_nj_transit.html




I WOULD GET FIRED FROM MY JOB IN CORPERATE AMERICA IF I DID SOMETHING THIS STUPID, BUT IS I RIGHT?

[hlthe2b]

1. Ahh, damn... first I sort of have to back Karl Rove in his O'Donnell

comments and now you are going to make me have to defend this ass? But, I suppose, I sort of do have to defend him against being fired for his stupidity and bigotry committed on his off time. Geez.

[KILL THE WISE ONE]

5. I know I SUCKS, but was he was just exercising his rights?

granted in my opinion, it was his right to be stupid.

i do not want to feal sorry for him, in fact i am thinking a little "Social Darwinisem" in action, but just because I do not like what he did?

[elleng]

24. Yes, he was exercising his rights.

[CatWoman]

2. government employees are held to different standards

can't remember the name of the restriction(s) in question.

to answer your question: yes.

[ibegurpard]

8. this is correct

I believe it's the Hatch Act.
Right or wrong, that's the way it is.

[CatWoman]

13. bingo!!

that's it.

I'm a govt. employee -- I should have known that :)

[mjane]

27. You are completely wrong

first of all, the Hatch act applies only to FEDERAL govt. employees.

It also prohibits PARTISAN political activity, which this is not, and under certain circumstances. Not even CLOSE

Every legal analysis I have read from ACLU to law prof's says this firing won't hold up

[CatWoman]

47. ok, I'm wrong

but I'm still employed.

[mjane]

56. lol

and fair enough. And I thank you for acknowledging the Hatch Act doesn't apply.

Fwiw, these are activities prohibited under the Hatch act. Even if he was covered by the Hatch Act, I don't see burning a Quran as violative of these prohibitions...

These federal employees may not:

be candidates for public office in partisan elections
campaign for or against a candidate or slate of candidates in partisan elections
make campaign speeches
collect contributions or sell tickets to political fund raising functions
distribute campaign material in partisan elections
organize or manage political rallies or meetings
hold office in political clubs or parties
circulate nominating petitions
work to register voters for one party only
wear political buttons at work

[blondeatlast]

82. Not really--most local and state agencies have a version of the Hatch Act in force. I had to adhere

[Bitwit1234]

16. And they know this when they take the job they sign a statement

I know I had to when I worked for the federal government. And every year near election time we were reminded. So this guy knew better. I think he had an ego trip.

[elleng]

32. We do not (I did not) forfeit our First Amendment rights,

We can't be forced to 'politic' for candidates, parties, etc, by our employer.

[mjane]

64. Correct

No contract signed by a public employee can lawfully rescind those rights.

For a private employee, the law is a bit different. For example, if you are hired as a spokesperson for Hooters, then of course the contract could regulate your public statements.

[elleng]

70. Yes, First Amendment concerns government action,

'CONGRESS shall make no law . . .'

[mjane]

38. sorry, wrong. no contract of employment

of a public employee can be held up if it requires signing away his constitutional rights, no more than a rental agreement that you sign saying "no black people allowed in your apt. " would hold up.

Nobody has seen this code of ethics that I am aware of (I've failed in finding it online and several others have reported same), but even if it prohibited this kind of activity, then it would be nonenforcable.

Tons of case law on this.

That's why law profs, the ACLU etc. think the firing won't hold up

[Lance_Boyle]

84. Um, yeah you can sign away your rights to a private employer.

McDonalds reserves the right to fire anyone who dons the Ronald costume if they find him eating at Burger King. Pepsi and Coke have similar restrictions.

Non-compete clauses are another variant on the theme.

[mjane]

29. You are wrong

The Hatch act applies to FEDERAL GOVT EMPLOYEES.

or state etc. govt. employees that are primarily PRIMARILY federally funded.

It would still not be a hatch act violation if he was a Federal Employee, but that's another issue - since he's not

(hint: hatch act prohibits partisan activity under certain circ's for federal employees)

[SoCalDem]

79. He'll get his job back, BUT

he painted a big ole target on his forehead with that boneheaded stunt he pulled.. A little time will pass, and there will probably be extra scrutiny on him, and if they want to get rid of him, they will find a legitimate way to do it.

Public servants ARE deserving of a "private life", but when people go out of their way to do provocative things to draw attention to their out-of-the-mainstream beliefs, they are inviting extra attention to their work-life experiences.. Clever bosses have been legally getting rid of people like that for a very long time..

It's one thing to attend a protest meeting, but it's another thing entirely to openly disparage & possibly incite violence onto or by people who are probably their customers..

[hlthe2b]

10. Hatch act for one (restricts political activity)

and ethical conduct standards...

So, they probably can legally fire him, but I can't say I defend that action, no matter how despicable I think the guy is.

[backscatter712]

17. The Hatch Act was intended to keep civil servants from being beholden to patronage politics.

You don't want mailmen, Social Security workers, other government workers to be beholden to Republicans in order to keep their job.

That means that you really don't want civil servants to be doing loud political activity - that way they can't curry favor with the politicians to buck for promotions, and that puts some barriers up to keep partisan politicians from abusing the bureaucracy for political gain.

So yes, I agree with this action. When you're a government employee, you can't get too political - for there lies madness...

[mjane]

34. analysis fail

1) the Hatch act only applies to federal govt. employees (or those state etc. employees that work for agencies that are primarily federally funded).

and this is what is prohibited (two classes of prohibited parties)

use official authority or influence to interfere with an election
solicit or discourage political activity of anyone with business before their agency
solicit or receive political contributions (may be done in certain limited situations by federal labor or other employee organizations)
be candidates for public office in partisan elections
engage in political activity while:
on duty
in a government office
wearing an official uniform
using a government vehicle
wear partisan political buttons on duty

second class may not

These federal employees may not:

be candidates for public office in partisan elections
campaign for or against a candidate or slate of candidates in partisan elections
make campaign speeches
collect contributions or sell tickets to political fund raising functions
distribute campaign material in partisan elections
organize or manage political rallies or meetings
hold office in political clubs or parties
circulate nominating petitions
work to register voters for one party only
wear political buttons at work

[petronius]

23. He's a state employee, not federal, so does the Hatch Act apply?

And if it does, I'm not sure this is actually a form of prohibited behavior from my quick look at the OSC info page.

He's an asshole, but I definitely don't think he should be fired (as long as he was off-duty, didn't use any work property, and didn't identify himself as representing his employer). Even if the employer is legally able to fire him, I don't agree that it's right to. I'm really uncomfortable with any laws that restrict legal behavior away from work, and especially when that behavior is the exercise of a fundamental right...

[hlthe2b]

26. I had heard originally he was a Federal assignee to the state...

Assuming that is incorrect (and it may well be), I'd imagine the state has similar provisos for their employees.

[LostinVA]

46. Every state governmnet has some form of the Hatch Act

For their employees.

[mjane]

39. it does NOT apply

unless his govt agency is "primarily federally funded"

even if it was, his activity was NOT prohibited by the hatch act.

Prohibited acts:


be candidates for public office in partisan elections
campaign for or against a candidate or slate of candidates in partisan elections
make campaign speeches
collect contributions or sell tickets to political fund raising functions
distribute campaign material in partisan elections
organize or manage political rallies or meetings
hold office in political clubs or parties
circulate nominating petitions
work to register voters for one party only
wear political buttons at work

[hlthe2b]

45. If he is a Federal employee detailed to the state, it applies...

Detailed implies a temporary reassignment (loan) to the state and the worker continues to be paid by the Feds and to be a Federal employee. That said, the original question was what makes Federal employees different in terms of this or related activity and the answer is the Hatch Act. Not to imply it would appropriately restrict this action for a Federal Employee. I agree that it probably does not.

The original question wasn't specific to this employee but a more generic one. I don't know for a fact that he is anything other than a "regular" state employee and if so, the Hatch Act has no bearing I agree. That said there has been some reporting about a state equivalent to the Hatch Act. I don't know if that exists or what it entails, but I'm assuming the ACLU and others looking into this will provide those answers.

[petronius]

48. And get ready for another round of 'baggers saying "I hate the ACLU, but..."

:)

[mjane]

73. kind of like how many people here were pissed off at the ACLU over Citizen's United

but we are more likely to be on their side than the right, of course.

[mjane]

25. actually,every legal expert I have seen on this

from law professors to the ACLU think the firing was invalid.

[elleng]

28. They are correct.

Jersey transit will reverse its action, imo.

[mjane]

31. I agree with you.

If I can go so far as to make a prediction, I think NJT auth reversal is most likely.

If they stick to their guns, I see a fight in the courts, and they will lose

That's my prediction

[elleng]

33. They probably have their counsel studying the issue now.

[mjane]

36. I can't believe that they fired the guy

without checking with counsel, and IF they did, their counsel ... is an idiot.

[elleng]

37. Who knows how the decision was made, or who made it.

Bureaucracy is 'funny' like that!

[rainbow4321]

80. Nope

As a county government worker I can tell you that the only restrictions we have are not to engage in political activity on the clock and we can't drag our employer's name into any off the clock activity (as in saying they support whatever it is we politically say or do)

[baldguy]

3. This is not right.

If he kept his bigoted political asshattery for his personal time & didn't bring it with him to work to assault his co-workers and the public, his activities are protected.

[Lance_Boyle]

85. If the bus he's driving is targeted by a pissed-off koran worshipper,

his stupid actions have arguably endangered the public. For this reason alone he should not get his job back. Same applies if they try to reassign him to desk duty. He painted a target on the organization with his stupidity.

[The Straight Story]

4. Burn a flag, Koran, bible, Print out my posts and burn them if you so wish (and some probably do)

but what people do in their off time is not the business of those for whom they work (unless you are the Scott's company who will fire you for smoking at home....).

Unless of course you favor a right to hire mentality that lets companies get all they can from the state and feds and then treat the people they hire like crap.

[Hawkeye-X]

66. Who leaked the fact that I burn Straight Story posts right out of the printer?

Dammit! That was supposed to be a closely held secret.

Hawkeye-X

[mmonk]

No sympathy from me.

He is free to do it but not free to hold on to his job if they feel he reflects poorly on the transit system.

[mjane]

41. Actually, no. That is not the legal standard

"reflects poorly on the transit system"

And this firing is unlawful.

Even IF he was subject to the Hatch act, it does not fall under Hatch Act prohibited acts.

Law profs and the ACLU agree: the firing is illegal

[mmonk]

51. Would it be if he lit a cross on fire in front of a predominantly

African American Church?

[mjane]

55. Probably yes

because case law says that such acts can be construed as a crime of intimidation under Virginia v. Black.

That's because, among other things, there is ample documented history of people doing so and immediately thereafter engaging in violent acts against blacks, thus justifying this narrow prohibition. Contrast with, for example, flag or bible or quran burning.

Thus, the court ruled that said act could qualify under the "true threats" exception to the 1st amendment

However, the SCOTUS did rule that the burden was on the state to prove the cross was burned with an intent to intimidate. It could not merely be implied based on the act.

[mmonk]

65. Burning the Quran in front of the site of a future Islamic cultural center

seems pretty much an act of intimidation if you ask me. I found this from the Duke Law Journal

In a related trend involving the First Amendment claims of
public employees disciplined for off-duty speech, government
increasingly considers its workers to be speaking as employees even
when away from work, asserting that its association with employees
who engage in certain off-duty expression undermines its credibility
in communicating its own contrary views. Examples include
firefighters fired for participating in a holiday parade that featured
mocking racist stereotypes,14 a university vice president disciplined for
writing a newspaper column questioning gay rights,15 and police
officers discharged for appearing in or maintaining sexually explicit
websites.16 In response, courts often characterize such off-duty speech
as harmful not because of what it reflects about the worker’s own
ability to perform her job, but rather because of what it
communicates about the government agency as a whole. These
decisions reflect courts’ intuition that the public will inevitably
associate public employees’ off-duty expression with their
governmental employers—just as voters often ascribe the views of a
political candidate’s associates to the candidate himself.17

[mjane]

72. and the case law also

differentiates police officer, vice presidents, etc. from mere employees who don't regularly make contact with the public as representatives.

this guy was none of those special positions.

[mmonk]

76. So the transit authority won't mind if its employees hate some of

its passengers and expresses it while off duty.

[ZombieHorde]

81. Like everyone who goes to an anti-gay marriage church? nt

[Curmudgeoness]

6. No, it isn't right to be fired for anything we do on our own time.

On the other hand, there are consequences for anything we do. If we feel strongly enough about the issue, we risk it. I hope that he felt that this was so important. It was a pretty asinine stunt if you ask me.

[prolesunited]

7. You have a right to free speech

not to be protected from the consequences of exercising it.

[NutmegYankee]

12. Well in that case Sophie Scholl had free speech.

The consequence of preaching against the Nazis was just sadly beheading...

Do you really believe what you just said?

[prolesunited]

20. Yes, these cases are exactly the same

[sabrina 1]

35. When the Dixie Chicks lost contracts

because of what they said about Bush, where were the defenders of THEIR rights not to lose their jobs? The argument made then was that they could say what they wanted to, but they couldn't prevent the consequences.

What's different about this?

[NutmegYankee]

40. Boycott vs punishment

One is a boycott - a known tactic in which ones refuses to buy products or engage in commerce with someone or a company.

The other was the State Government (government) choosing to punish a man for his expression while off duty.

[sabrina 1]

58. Cancelling contracts is not a boycott.

[mjane]

62. That is a different area of law

The first and most important distinction is that the Dixie Chix were not public employees.

But, especially when one is a public representative of a record label, etc. there are far less restrictions on rights to cancel said contracts, and for obvious reasons.

The facts in this case are

1) this guy is a public employee
2) his agency is not federal, and thus the Hatch Act does not apply
3) he engaged in political speech in his off duty time and not on employer property

Bearing those facts in mind, an entirely different set of standards apply.

If I contracted with Quaker Oats to be on cereal box covers for the next year, they could (and would) rightfully include a clause that referenced my public behavior, etc. I would be a "face" and representative so to speak of their brand.

If I then went and said "Obama is Hitler" in an interview, they could certainly cancel the contract.

However, if I am an engineer for NJ Transit, and I publish a blog and say "Obama is Hitler" they could not fire me (generally speaking).

Now, if I was a Public Information Officer for NJ Transit, and I did that - they probably could fire me

[NutmegYankee]

69. It is also a different function in law.

And since there was no penalty doing so, there was probably a clause in the contracts that allowed them to be broken.

[mjane]

43. The difference is

that they were not public employees who were fired.

Individuals are free not to play their records, or buy their records, etc.

If the Dixie Chicks made their statements and were members of a city sanitation squad, it would have been illegal to fire them.

[elleng]

18. Congress shall make no law

respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

[prolesunited]

21. And?

No one prevented him from burning the Koran

[elleng]

22. but his State govt employer fired him for having done so,

Not a far leap to conclude they were wrong to have done so, as it might easily be found to be 'abridging the freedom of speech.'

[Lance_Boyle]

86. Maybe they fired him for committing a crime?

I don't think people are allowed to randomly light fires on the street in Manhattan. Protest or not.

[elleng]

88. Maybe. They should make that clear, if its the case.

[NutmegYankee]

30. They just punished him after he did so.

You are not free to do it if the Government (his employer) then punishes you for it. You fail to connect that the firing is the penalty for the speech, and therefore had actually curtailed said right to speech. Think of speeding - you can easily speed down a highway all day long (act), but you'll likely get a ticket (punishment) because it's illegal. This guy burned a koran (act of expression) and was promptly fired (punishment). One can quite easily conclude that the man was therefore not free to do so.

[mjane]

53. except you haven't read any case law

and have no idea of the legal standards. You are just arguing your opinion.

The fact is that as a public employee he has certain protections, and as such (the ACLU, various law profs agree), this was an unlawful firing.

[NutmegYankee]

57. Did you reply to the wrong post?

We agree that it was unlawful and wrong to fire him. My post was pointing that out.

[mjane]

59. My bad. I think I did

This thread is going so fast and furious, I apparently got lost.

My bad.

Righteous outrage redirected...

[NutmegYankee]

67. Oh yeah. I've done that before...

too many times...

[mjane]

42. False. Public employees DO have such a right

Sorry. Simply wrong on the facts.

If he was a federal employee, then the Hatch Act would apply. Regardless, his behaviors were not violative of the Hatch act.

If he worked for a private employer, that would be a different argument

[Lochloosa]

9. Would he have been fired for burning an American Flag?

And would that have been right?

[TheCowsCameHome]

11. Something about "conduct which brings discredit to the company" IIRC

I worked under those rules before I packed it in.

He's cooked.

[The Straight Story]

15. Kind of like those under bush who opposed the Iraq war and such?

And who might have protested against it?

[elleng]

14. NJ Transit Keith's Worst Person!!!

[pdxmom]

19. He wasn't fired for burning the Koran, he was fired for burning the Koran

on television in front of thousands and thousands of people. His 15 minutes of fame cost him his job.

[LWolf]

44. That's not okay.

The Koran burning was stupid and hateful. It wasn't against the law.

What someone does during their free time, as long as it's legal, is none of their employers' business.

[TheDebbieDee]

49. Federal, state and municipal employees are held to a different

standard for their off-duty conduct as a condition of employment. Maybe he should have read ALL of the papers in his hire packet when he accepted the position 11 years ago.

Sayonara, Mr. Fenton.

[joshcryer]

50. He was fired for painting a big ass target on his fucking forehead.

Jesus how stupid do you have to be.

[kwolf68]

52. Yes it's right

The Dixie Chicks were basically fired for MUCH less...to quote Dumbya, you need to be accountable for your words/actions.

further, Libertarian whackos would have NO PROBLEM with a company firing workers for ANY REASON...so the tea Party should be in full support of the firing.

Companys are in the business to make money, gain market share...being known to harbor hate mongering radicals may not benefit the bottom line, which is all companies care about.

[Codeine]

54. This won't stand. Guarantee he'll get his job back. nt

[Swede]

60. A New Jersey Employment Lawyer Explains At-Will Employment

He's a goner.

http://www.dailymotion.com/video/x5u455_a-new-jersey-employment-lawyer-expl_news

[LostinVA]

78. Yeah, as soon as I saw he wasn't Union, I knew he was a goner

[Poll_Blind]

61. The only person who'll defend this dude is Orly Taitz. Here's why:

We're talking about reasonable grounds for firing. That is the scope of what I'm speaking to on this issue. Just to be clear:

First, it's a crime to just go lighting stuff on fire in public. And it's also littering. (Not being glib, this is common to get hit with as well) In both this point and in the following paragraph the emphasis is on firing an employee for commission of a crime outside of work, not just expressing their Freedom of Speech.

Second, this particular type of speech was essentially encitement to riot. This is why you don't see a whole lot of Nazis burning effigys of African Americans in the middle of Times Square: Nobody is going to say "Oh my God, those poor Nazi's just expressing their freedom of speech!" Because, remember: The law is upheld by men, not by impartial machines. It's something to always keep in mind and it cuts both ways.

Thirdly, this is incitement on a level which was previously warned against by no less than the President of the United States and General Petraeus implored Pastor Terry Jones not to hold a Koran burning because, in the words of the top general in Afghanistan 'images of the burning of a Koran would undoubtedly be used by extremists in Afghanistan to inflame public opinion and incite violence'. This is, no kidding, a national defense issue.

The Patriot Act can put your behind bars forever if you even unknowingly helped terrorists. Good or bad, that's where we're at now. This dude went out of his way to do what had been broadcast on television and radio and in the papers as something which was certain to bring harm to U.S. troops, through incitement.

This guy's expression will not be granted First Amendment Protections and no lawyer on the face of the earth can get this guy's job back or in any way punish the company for firing him.

[ngant17]

63. this action discredits the federal government

mainly due to the mass-media and publicity. Because he was a state worker. It gives fuel to the fire for the Taliban. It's also silly to burn bibles in this Internet age, it won't stop anyone from reading them, as these books are widely available online thanks to Gutenberg Project.

He really needs to work for a rightwing private company which will 'tolerate' this sort of childish behavior, if not actually encourage this sort of thing. I think it would be fair to fire him. People in government have lost their jobs for a lot more noble acts than that.

Or he should have burnt an American flag and a Koran at the same time, to show he was completely impartial (or a radical atheist or possibly a member of Westboro Baptist church in Kansas).

[elleng]

71. 'Discredits the federal government' how?

[southernyankeebelle]

68. I live in a small rural town in the south. When I worked for the local government someone wrote a

letter to the editor about hot dogs at the ball field. I know it sounds dumb, anyway I and another employee responded with different letters to the editor. It so happened that the guy that wrote the article shouldn't have been eating stuff from the stands in the first place because of his condition. His momma happened to work with us and his aunt with our supervisor. Anyway not using any names it was asked if it was so bad than why did he eat more than one hot dog and why didn't he say something to the supervisor. Well needless to say we got in trouble. The city manager wrote a response back saying employees had no rights to respond to the complaint. Everyone that worked for the city felt the hill and were pretty upset about it. In fact our 2 letters made it to some organization that is national that was about freedom of the press. About 3 months later we had a visit to our place of business by the governor (who I voted for) was told we were not allowed to go up to him and say anything. I didn't. Then and there is when I found out and realized that there really isn't freedom of the press.

[toddwv]

74. Up in the air about this a bit.

On one hand he has the right to burn it.
however,
On the other hand he's a douche.

So the question is if his employer (in this case the gov of New York) have the right to fire him for being a douchebag while he's off the clock. Personally, I'm not going to cry. Yes we have the freedom of speech, however, that doesn't free us of the consequences of that speech.

[Hannah Bell]

75. he shouldn't have been fired. period. if he can be fired, then so can someone who

burned the bible, the flag, the constitution, the president's picture, their bra, draft card, or the communist manifesto.

free speech = protected

[old mark]

77. Many states have as part of their contracts with civil service workers

that they may NOT ENGAGE in any type of political activity at all except voting and donating (privately) to their favorite candidates...subject to termination. Here in PA, you can lose your job for a political bumper sticker.

This guy knew what he was getting into and made his own decision.


mark

[Bozita]

83. MI Asst. attorney general cyber-bullies openly gay college student. He KEEPS his job.

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x9145768#9146262

[thelordofhell]

87. Say hi to the Dixie Chicks for me Mr. Fenton

You have the freedom to do things like this, but you also have to accept the consequences. It doesn't feel right though.