An former employee at a small Virginia airport has filed a lawsuit contesting his termination. The resolution will involve some interesting questions about the First Amendment and the employee privacy.

Charles H. Hoofnagle, was employed as the Operations Manager of the Mountain Empire Airport located in Rural Retreat, Virginia. The Airport is operated by the Smyth-Wythe Airport Commission, a public entity and a political subdivision of the counties and towns. The Commission is comprised of six members who are appointed by the counties and towns. The Commission has the power to hire and fire employees of the Airport.

As Operations Manager, Hoofnagle reported to the Commission and was responsible for the day-to-day operations of the Airport. Among other things, Hoofnagle was responsible for fuel inventory, maintenance of the Airport, customer service, including answering phone calls and responding to emails from the public and customers, and month-end business, including billing.

Soon after Hoofnagle first began working for the Airport, he created a Yahoo! Mail (“Yahoo!”) email account with the address of charliemkj@yahoo.com. The “mkj” letters in the email address reference the FAA identifier for the Airport. Hoofnagle used this account for both personal and business purposes. Although the account was not owned by the Airport, its address was held out to the public as an official contact for the Airport and provided to nearly all vendors and customers. It was the email address on file with the FAA and the Virginia Department of Aviation.

Hoofnagle belongs to the NRA. After the Newtown mass school shooting, Virginia Senator Tim Kaine sent a letter to Hoofnagle addressing the issue of gun violence, apparently in response to a communication on that issue from Hoofnagle. In an email dated February 16, 2013, Hoofnagle replied to Senator Kaine with the kind of nuance and eloquence that would make Wayne LaPierre proud:

From: Charlie Hoofnagle < charliemkj@yahoo.com >

To: U.S. Senator Kaine < senator@kaine.senate.gov >

Sent: Saturday, February 16, 2013 9:14AM

Subject: Re: Reply from Senator Kaine

Dear, Mr. Kain [sic]. I own over 9 AR platform rifles and 30 some various other rifles and shotguns, a dozen handguns, I suggest you stick up for rights of all gun owners in Va. In my opinion you and your kind (Liberals) ARE a CANCER to this state and COUNTRY, therefore I have gone to the voting polls every Nov. to try and eradicate you and your kind from public office, and will continue to do so. We do not have a gun problem, We have an IDIOT PROBLEM, go deal with that, and not the competent gun owner. Here is the Va. NRA tollfree # 1-800-672-3888. Now you can join the NRA. So you can be apart [sic] of something with some substance and character...Charles H. Hoofnagle. Airport Operations Manager Mt. Empire Airport in south west Va. 276-685-1122

As an aside, I would agree with Mr. Hoofnagle that we have an idiot problem. He and I would likely disagree however on exactly who the idiot is. But be that as it may, Hoofnagle’s e-mail led to his termination.

Following the termination, Wilson Leonard, who was chairman of the Commission, accessed Hoofnagle’s email account using a password provided by Christina Dunavant, the Airport secretary. Leonard claims he accessed the account in order to retrieve business records of the Airport. Hoofnagle did not authorize the Commission or its members to access the account at that time. Hoofnagle contends that he never shared his password for the email account with anyone at the Airport.

Hoofnagle filed a lawsuit in federal court claiming the firing violated his First Amendment right to shoot his mouth off and that the search of his e-mail account violated his Fourth Amendment rights as well as the federal Stored Communication Act.

The court dismissed Hoofnagle’s First Amendment claim. As a public employee, Hoofnagle has some First Amendment protection that private employees don’t enjoy. Public employees have a right to speak out on matters of public concern provided they do so in their capacity as a private citizen. But when they speak out in their capacity as an employee – and where the speech has the reasonable prospect of disrupting the office efficiency and working relationships. Simply put, the Commission couldn’t fire Hoofnagle for marching on behalf of his gun loving NRA comrades in a town parade, but they could make him stop picketing in front of the office copier.

Here the court agreed that the hostile tone of the e-mail, which Hoofnagle signed as the Airport Operations Manager had the potential of undermining the Commission’s credibility and interfering with the airport’s operations. Accordingly Hoofnagle’s First Amendment claim failed.

Hoofnagle had better luck with his claim arising for the e-mail snooping. Although the court dismissed the Fourth Amendment claim because the search was limited in scope for a legitimate work purpose, it found Hoofnagle’s claim under the Stored Communications Act could proceed. The court rejected the Commission’s claim that it provided the email service and therefore was permitted to access it under an SCA exception provided to employers. The court noted that the Commission didn’t provide the service – Hoofnagle had set it up through Yahoo, in his own name. And the e-mails weren’t downloaded or stored on the Commission’s servers. Complicating things further, the Commission had no policy on employee e-mail use. Accordingly, Hoofnagle’s SCA claim survived the Commission’s summary judgment motion.

Employers should take note. The SCA allows a decent amount of leeway for employers to inspect employee emails. But that leeway isn’t unlimited. And it makes sense to lay out a policy in advance. Unless you like being a defendant.