Tom Kamenick, deputy counsel and litigation manager at the Wisconsin Institute for Law & Liberty, recently wrote a letter to the editor published in the Wausau Daily Herald, titled “Lawyer: Constitution protects Karger” .
EDITOR: “Shut up” politics has gotten out of control. In July, the Marathon County Board suspended Marathon County Administrator Brad Karger without pay for participating in a political march. Without commenting on whether he should or shouldn’t have done that, I write to raise the significant constitutional issues in play.
Karger engaged in constitutionally protected political activity. His employer is punishing him for that. If Karger were a private employee, that probably wouldn’t be a problem. But his employer is a government entity, and government employees don’t give up their rights by accepting employment.
If Karger was performing his official job duties at the time, that could be different. A government employer still has the right to control how employees do their jobs. But Karger wasn’t working, and wasn’t claiming to speak for the county. The fact that he was identified by his title (or that he was dressed up) does not put him “on the clock.”
Under First Amendment cases, Karger could also be punished if his actions caused an extreme disturbance in the workplace — something so severe it significantly interfered with ordinary operations. But — despite the ludicrous claim of one county board member — Karger’s actions were not akin to participating in a KKK rally.
The fact that county boards have the statutory power to fire an administrator does not give them license to do so in a way that violates constitutional rights. County board members should think long and hard about the oath they took to uphold the Constitution.
Thomas C. Kamenick,
The writer is deputy counsel and litigation manager for the Wisconsin Institute for Law & Liberty, based in Milwaukee.