Saturday, March 19, 2011

Pat Lykos and the First Amendment

The Lykos Administration issued an update to the D.A.'s Office Operation Manual on Wednesday advising her employees on the etiquette that they must adhere to if they are either running for or supporting any political office in the upcoming elections.

Now, please keep in mind the irony of having Pat Lykos, who acted with all the social graces of a toothless, one-legged barfly in a Louisiana roadhouse during the 2008 election, advise anyone on the proper way to conduct an above-board campaign.  She took more comp time off from her county job to campaign and campaign dirty than probably any other candidate on the trail.

But the new Lykos policy for her employees seems to be a threatening new memo that infringes on all of their First Amendment rights.  Here are some of the highlights:

1.  The first paragraph of the policy prohibits any campaign material from being handed out or displayed at the Office.  That particular part is nothing new, but the Lykos policy goes a step further, dictating that no employee may receive any materials (including e-mails) from a candidate at the Office.  Now, perhaps her generational technology gap keeps her from understanding how e-mail works, but someone needs to update Lykos on the fact that you can't really control what people send you on the e-mail.

Furthermore, you can't control what people send you through the U.S. Mail, either.  Many attorneys at the D.A.'s Office have their office address listed with the State Bar as their preferred mailing address rather than their home addresses.  Are those employees going to be punished when a computer generated mailing list puts campaign literature on their desk?

Or will Lykos just issue an edict that interferes with the delivery of the U.S. Mail?

2.  The next paragraph states that employees "may express a private opinion during off-work hours concerning any candidate or political issue, but it should be made clear the expression is a private opinion and in no way represents the Harris County District Attorney's Office."  Wow.  So, my friends still with the Office, just remember that if over dinner you decide to tell your spouse that you think taxes are too high, that you also state "That's just me talking, and in no way represents the views of the Harris County District Attorney's Office."

3.  Any person seeking to run for Office must first clear it with Lykos before "taking any affirmative step toward becoming a candidate".  Are you freaking kidding me?  Sure, it would probably be in better taste to let your boss know you are running, but under what authority does she make it a pre-requisite that an aspiring candidate get her blessing before running?  I don't think that decision is up to the District Attorney, is it?  As a matter of fact, an employee of hers can decide that they are going to run against Lykos if they want to, and she doesn't get to stop them (or fire them) for doing so.

Also, isn't Lykos' demand that a candidate come check with her first make Lykos a de facto consultant on the wisdom of that decision?  And wouldn't that requirement mean that they would be discussing politics in Lykos' office?  Seems like this rule would contradict Rule # 1.

4.  The District Attorney's name may not be mentioned in campaigning without her express permission.  Well, I guess you ADA candidates can just say that you work for "She who must not be named."

5.  She makes the fair point that campaigning should not take precedence over a prosecutor's case load.  That's fine, but quite hypocritical if you look at how much time she took off from her county job to campaign for D.A. in 2008.  Then again, I never really thought she had many work duties in her old job.

6.  Regarding your conduct on the Campaign Trail, "Statements discrediting a fellow employees will be subject to review to determine whether they were made with knowing or reckless falsity of bad faith."

Well, that's going to pretty much put the kibosh on anyone going to Terry Lowry.  Lowry, who many of you remember from his homophobic and hateful spewing of gossip in the 2008 & 2010 elections is the king of mudslinging and dirty campaigning.  He was also somebody that Lykos went running to when she campaigned in 2008.  I wonder if she'll ban herself from using him this political season.

And finally, Lykos wraps up her memo with what she does best:  threatening her employees.

"An employee's participation in political activities in no way alters the employee's status as an at-will employee.  The District Attorney's Office and the employee retain the mutual right to terminate the employment relationship at any time and for any reason, notwithstanding the adoption of this policy allowing participation in political activities."

So, just so we're clear, Pat, you've listed an entire memorandum completely cutting through your employees' First Amendment Rights, but then follow it up with the catch-all of "if you do anything else I don't like, I can fire you anyway."

What a great place to work.

The thing that strikes me as most interesting is why did Lykos generate this new policy?  Clearly, there is some prosecutor or prosecutors running that she doesn't approve of, so she is doing her best to diminish their ability to do so.

Quite frankly, I think her new policy is a Civil Rights Violation.

What do y'all think?


Thomas Hobbes said...

While I agree she (or the actual author) doesn't fully understand how email works and the last part is probably intended to have a chilling effect, much of the rest is simply an incredibly inelegant reiteration of existing provisions in County policies, case law, and/or state statutes. The entire bit of tripe could have been half as long, just as informative, and much less threatening - if she had wanted it to be.

While I am rolling my eyes, I'm neither surprised nor upset.

Anonymous said...

Lykos continues to try to control every aspect of the lives of the employees of the Harris County District Attorney's Office. First she took away their ability to earn extra money teaching in Harris County (can not do that while on vacation or comp time), now control their political activities while on vacation or comp time. What is next, where they go on vacation?

Anonymous said...

She who has no name. I like that a lot.

Anonymous said...

The policy as written is simply unconstitutional. Putting aside the problems with the restrictions on employees who may be running for a position, there are major issues with anyone employed by the DA's office who wishes to express the most sacred of their First Amendment Rights - political content speech.

Under the system, if an employee wants to take comp time in order to get their nails done or go fishing, that employee merely needs permission from that employee's supervisor. So long as that prosector's work is covered, there usually is not a problem (unless you work in certain divisions with certain micromanaging division chiefs.

If, however, that same employee wishes to take time off to partake in a "political activity," then the first assistant is to be notified. This extra step makes adds a restriction to those wishing to exercise their political speech rights that is not in place for those wishing to do something else.

Ask your friendly neighborhood constitutional law professor. This is the most poorly written policy that the leadership team has put together yet in that this is the first policy that is illegal on its face.

Not to the leadership team - if retributive action is taken against anyone taking time off for political purposes (when that time would have ordinarily been granted), then get ready for a 1983 claim.

Anonymous said...

Awesome post, Murray! It is very interesting to see how Lykos behaves prior to an election where her darling / chosen ones are not involved. Actually, it is shameful and if this any indication of the way she will act, it should make for an interesting election season.

The true shame in it is that (1) she shouldn't have to send out such a mandate to professionals and (2) that she is showing her true colors as she builds her lack of character as a dictator.

Anonymous said...

Any comments on the latest "Lay-offs " / Terminations ????? I have heard that as many as five prosecutors and multiple support staff may be shown the door in the coming weeks....

Anonymous said...

ps - The beatings will continue until morale improves.
Pat Goatse

Anonymous said...

there are major issues with anyone employed by the DA's office who wishes to express the most sacred of their First Amendment Rights - political content speech.

Actually, the employer is just preventing the speech in the office, not out of the office, so it's not a constitutional violation. If she arrests someone for violating the policy, you have a case. But she can fire someone for it.

Lots of private law firms have similar policies. The motives are different, sure, but the result is the same--keep the workplace free of political speech. And it's legal to do it.

She's wrong though, you can't fire someone for any reason. You can fire them for no reason or a good reason, but not a bad reason. Violating an existing policy would be grounds for termination for cause.


Anonymous said...

What about lay-offs? She can always throw the baby out with the bathwater.

Anonymous said...

No doubt Lykos and her "Brain Trust" cooked this Memo up. Again, her political skirt is showing. The saddest part is that Lykos actually believes she is still "saving HCDA" from its previous administrations' policies and procedures. Like Kaddafi, she is completely detached from reality. Like Libya, change at HCDA is coming in 2012...

Anonymous said...

Wasn't Lykos passed over on a promotional exam at HPD? I believe the late Police Chief Herman B. Short passed over her name.

Anonymous said...

Will Somebody PLEASE run against her!!!!!!!!!!!!!

Anonymous said...

Who is monitoring the monitors?

I wonder if these "policies" apply to Bridgwter? He is running, and I bet he does not need to get permission.

This place is a joke. Looking forward to taking the appointment test and bolting. I'm through....

Good riddance.

P.S. Do I need permission to take the test?

Anonymous said...

WOW! For one reason only-don't I wish I still lived in Harris County-and ONE REASON ALONE! I have never worked for the DA's office, but I have a number of friends that did/do. I would love (BEING A NON-EMPLOYEE) to do anything in my power to get this crazed psycho out of public office in a position that she has no business being in. Where are her people skills? That is a MUST for this position. True, like the White House, there needed to be "change", but come on-we were looking for "good" change, IMPROVEMENTS, not steps backwards.

WHEN ONE VOTES,IT IS "BE CAREFUL WHAT YOU WISH FOR, BECAUSE YOU MAY JUST GET IT"! Now, we are all stuck with it. All we can do is VOTE to get these loonies out of office EVERYWHERE (including the county and Washington)......VOTE them out!

Anonymous said...

Rage -

Again, you post without knowing what you're talking about. You obviously haven't read the memo, nor did you read 5:21's post with any degree of accuracy.

Lykos can, and should, prohibit any campaigning by her staff for themselves or on behalf of others while they are on county time. The problem comes with the extra restrictions placed upon the employees on their off time. Their new policy places extra restrictions on taking off time for political activities that do not exist for non-political activities. Therein lies the constitutional problems.

Anonymous said...

I hope that EVERYONE (6th floor staff included) remembers this little stunt come 2012.

January 2013 will begin the rebuilding of the Harris County D.A.'s Office and the resurgence of pride and confidence that once filled the halls. It will be a great day to see the arrogance and incompetence leave the 6th floor and be replaced by people who care about their employees and trust in their ability to do what they were hired to do without all the proverbial "bed checks" that take place now.

21 Months and counting...

Anonymous said...

For authority to fire your opponent/employee, see 306 F3d 268.

Derek Flynn said...

I read your blog all the time and rarely comment but this just blew my mind. As you know, I have been on the civil side now for 4 years after leaving the office and one of the areas that I focus attention on is labor and employment law. I would love to see someone at the office violate these "policies" to see what happens. It is a clear violation of too many state and federal labor and employment laws to list. I would love to know who is advising her on these memos. I would be shocked if it was the Scott in the general counsel's office.

Anonymous said...

Who is going to complain in this economy?

Whether it is morally or legally wrong doesn't matter so much when faced with the choice of "standing up" or feeding our families.

Anonymous said...

Rage is to Con. Law what Barry Hussein is to POTUS....all talk.

Anonymous said...

Derek, why don't you list a few anyway.

Then youcan explain to everyone how many successful employment claims there are in the Southern District of Texas.

Anonymous said...

Why hasn't one of the ace Chronicle writer's picked up this story. Aren't they the great protectors of liberty? If Chuck had done this they would have gone ballistic with outrage.

Anonymous said...

Never get tired of the hussein bigots.

It's common for different issues to require clearance from different levels of administration. Good luck winning this case in federal courts in Houston.


Anonymous said...

Anon 12:37:

Personal tragedy and disaster reveals one's character--Japan has proved that.

You can choose to be a Katrina victim and excuse maker or man up and taken personal responsibility.

Non government workers are not only surviving this economy their tax dollars are paying for the government largess as well.

Stop whining already.

Anonymous said...

Working for the DA's office is a disaster like a tsunami or Katrina? Really? WTF are you smoking?

Since when are low salaries part of government "largesse"?

Good thing there's not an IQ test to post on the internet, 5:09. Wow.

Anonymous said...

I have not read the memo issued by Lykos, but the blog notes six relevant issues in that memo: 1) receipt of E-mail and U.S. Mail - obviously unenforeceable as well as being inane; 2) off hours work opinion - again inane and hardly enforceable unless there are spies in one's bedroom; 3) clear candidacy with Lykos - an extremely troubling one since Lykos effectively becomes a one person selection committee - best not run against a Republican or one of her toadies; 4) mention district attorney's name - who would want to except a toady, see also 2 supra; 5) campaigning not to take precedence over one's job- if applied uniformly to all candidates a valid provision; 6) statements not to discredit fellow employees - query where does the office possess standing to assert the rights of the candidate for "libel or slander" and who is to be the truth judge?
As I understand the law the right to become a candidate for public office or enage in political activities is a right protected by the 1st Amendment to the U.S. Constitution. The right, however, is not absolute. Government has a legitimate interest in regulating the political activities of its employees and as an employer may regulate the political activity of those employees to a greater degree than it could the general public. In determining the amount of regulation permissible, government is to arrive at a balance between the interests of the employees and the interests of the government in promoting the efficiency of its employees. In striking the balance, government may place limits in condidacy and activities by public employees if the limitations substantially serve the governmment interests imporatnt enough to outweigh employees' 1st Amendmemt rights. That is the law as I understand it - it is a balancing issue - does the candidacy or activities create an employment conflict? Thus,the issue is a bit more complicated tnan would appear at first blush. The Operations Manual, prior to what can be characterized apparently as a wholesale effort to chill the candidacies of those individuals not within the Lykos sphere by its amendment, adequately addressed political activity within the HCDAO. The stern admonition at the end of the memo demonstrates the probable true motivation for its issuance.
Calvin A. Hartmann

Anonymous said...

Anon 5:28,

You unwittingly made my point.

"Whether it is morally or legally wrong doesn't matter so much when faced with the choice of 'standing up' or feeding our families."

If the Japanese people can handle a real tragedy with such incredible integrity it sure seems pretty insignificant for you to whine about not being willing or able to pony up under circumstances that pale in comparison--exactamundo!

As for your paltry salary, those of us not on the governmement teat sure would like your pension plan, deferred comp matching and health care benefits. Oh, and who, my intellectual giant, is paying for these inconsequential perks that are part of the government largess? It sure as Hell ain't you, bubba.

And before you justify your poverty wages with the proverbial, "It's a calling" that shit is as meaningless as Rosenthal's WWJD bracelet when you've sold out.

Anonymous said...

"As for your paltry salary, those of us not on the governmement teat sure would like your pension plan, deferred comp matching and health care benefits. Oh, and who, my intellectual giant, is paying for these inconsequential perks that are part of the government largess? It sure as Hell ain't you, bubba."

Lol. I love the antigovernment buffoons that have come out of the woodwork since the tea party started up. It's always hilarious when morons like you call an important job (and make no mistake, being an assistant DA is an important job) and it's workers as being on the "government teat." The DAs I know are up at the office early, and they stay late, because they like the job and it's something they can be proud of. You think a pension and benefits are given away for free? WTF would you think that? You think the people at the DA's office are getting some sort of undeserved benefit because they get to go to the fucking doctor?

I pay my taxes, and so does every DA in the building, you mental midget. Complaining about Lykos and the people who have wrecked the place doesn't make any prosecutor a bad person, nor does staying at the office make them a sell-out. The job has always been important, is still important, and will be important long after the current DA is gone.

Tsunamis. Good lord you are an idiot.

Anonymous said...

Anonymous 3/22/11 4 p.m.

Comments like that are why this Blawg needs a "like" button

Anonymous said...

So much to say:

Anon: 11:34; do not be so bitter. Just because your job sucks with few or no benefits, do not take it out on other hard working people. You are certainly qualified for sanitation work or some other type of government job that would give you those fabulous benefits that you obviously covet so much.

Rage; The new policy set forth in the memo has very little to do with what private law firms do. The rule has always been no campaigning in the office and no campaigning on the clock. Dictating how employees use their time off is entirely another matter. The only thing that Lykos can legally prohibit employees doing on their time (this includes using vacation or comp) is having a private law practice. That is specifically prohibited by the Texas Government Code. Rage, try reading the law sometime. It can be very educational.

As to the policy itself; Mr. Hartman and others have summed it up nicely. Lykos is all about control, real or imagined. The bunker mentality is so Nixonian it is frightening. I hope Mr. Leitner is proud of being part of such a fine leadership team. Hey Jim, this is for you. We all know how you read this blog religiously. We are all LAUGHING AT YOU!!!

Murray; Did you hear about the pay cuts for working Intake. No more holiday pay. Intake pay reduced across the board for everyone below chief. Hey, lucky for Jim, Clint and Roger that they will not face a pay cut, since they are the biggest intake hogs in the office.

Anonymous said...

6:06, please show me where this policy says "you cannot use your own time for political speech."

In fact, based on what I read, it says that political speech on your own time must be attributed to you and you only. In other words, you can speak your mind, just make sure people know it's your mind and not your boss's.

Sounds like I've read it closer than you have.


Anonymous said...

Hey Rage, you got it wrong again. Like the poor marksman that you are you keep missing the target and the point. If you have to ask permission to use your time for political speech you are being restricted. Duh!

Anonymous said...

Wait, I have figured it out! Rage defends this and other policies like he has some pride of authorship. Rage is Jim Leitner!

Anonymous said...

re: anon 11:34 a.m.-

Hey zipper head, no Harris County employees get "MATCHING DEFERRED COMP". Employees are allowed to place the same amount of deferred income as all other 401K and 457b plans allow.

Additionally, you have to stay there earning a lower salary for a minimum of 30 years to retire with a livable pension and then hope inflation doesn't shrink it too much. Primary Health insurance becomes secondary to Medicare at age 65. You hardly become wealthy working for the County; you can earn a living and the work used to be terribly rewarding pre-Lykos.

Anonymous said...

9:21, you need permission to go campaign, which is not to say that you cannot campaign, ever. Nowhere does it restrict you from exercising speech, except political speech in the office, which is common and legal.

You can take cheap shots all you want, but ADA's don't know dick about the civil stuff. I love trying cases against former ADA's, it's like shooting fish in a bucket.


Anonymous said...

"I love trying cases against former ADA's, it's like shooting fish in a bucket."

Hope you don't get some of the DAs I know who used to practice civil law. I'm sure they'd wipe the floor with your ass.

Anonymous said...

Re: anon 9:21 pm: "Khaaaannnnn"

Anonymous said...

Rage, you're right. Former ADAs like Rusty Hardin and Joe Jamail don't know anything about civil law.

Anonymous said...

3:38, not to speak for Rage, but you know those are by far the exception and not the rule.

Anonymous said...

SO...if we all bombard Lykos and Leitner with emails and mailings from political opponents, they would then be in violation of her "policy" by "receiving" this information, would they not?