Federal Judge Rules McKee’s Top Two Aides Violated a State Worker’s First Amendment Rights by Firing Him Over an Off-Duty Post, Denies Them Qualified Immunity

What the court decided

On Oct. 28, U.S. District Court Chief Judge John J. McConnell Jr. ruled that Gov. Dan McKee’s chief of staff, Antonio Afonso, and senior deputy chief of staff, Joseph Almond, violated the First Amendment when they fired Miguel Sanchez, a junior constituent-services staffer, in October 2023 over a post on his personal social media account. In the 25-page memorandum and order, the judge granted Sanchez partial summary judgment “as to liability on his First Amendment claim against Defendants Antonio Afonso and Joseph Almond in their individual capacities and against all Defendants in their official capacities.” He denied the defendants’ motion, including their claim of qualified immunity. “The matter of damages and injunctive relief remains.”

The speech, in one line. While off duty, Sanchez, who was also a Providence city councilor, posted on X a video of a Providence march calling for a ceasefire in the Israel–Hamas war. His account identified him as a councilor, not a state employee.

“Constitutional right to say” it, then fired

According to the ruling, at an Oct. 26, 2023 meeting Afonso told Sanchez that he “ha[d] the constitutional right to say” whatever he wanted but “doesn’t have any constitutional right to work in the Governor’s office.” The next day, Sanchez “was given the choice of resigning or being fired,” and “[h]is request to speak with Human Resources was denied.” Afonso testified that if Sanchez had offered to remove the post, he “might have” kept his job.

The judge rejected the idea that a government job can be taken away for any reason because it is a privilege. In a footnote he wrote: “There is an incorrect notion that because someone may not have a right to a government benefit, such as public employment, the benefit may be denied for any reason.”

The “disruption” defense

The defendants argued that the firing was justified by disruption to the office. The court counted what that disruption was in the five days between the post and the firing: one Providence Journal inquiry, “three emails and two telephone messages from the public,” a legislator’s question in an elevator, and a few questions from NBC 10 and a WPRO host. It also credited testimony that the governor was asked about it at press gaggles. Almond himself testified the inquiries were not “a lot” and “did not interfere with the operation of the office.”

The firing, by contrast, drew at least 17 reporters’ questions, coverage from at least 11 outlets, and 63 emails and 38 calls by midday Nov. 2. “The alleged distraction caused by his post pales in comparison to the inquiries after the firing,” McConnell wrote.

The court also noted that two other staffers had posted views that conflicted with the governor’s. One was a policy staffer who called for abolishing the Law Enforcement Officers’ Bill of Rights, and the other was a scheduler who backed a different presidential candidate. “[N]either employee was asked to remove the posts or was fired.” The judge also found that Sanchez “was not a policymaker or communicator as a matter of law.” He concluded: “Defendants’ disagreement with Mr. Sanchez’s post places nothing legitimate on their side of the balancing scale.”

Why qualified immunity failed

Qualified immunity shields officials from personal damages unless they violated a clearly established right. McConnell held that the law was clear and that the aides’ own words showed they knew it: “Both the Chief of Staff and the Deputy Chief of Staff of the Governor knew or should have known that they should not retaliate against Mr. Sanchez for exercising his constitutional right. Yet the following day Mr. Sanchez was terminated from his employment right after Mr. Afonso acknowledged that Mr. Sanchez had a right to express himself.” He cited First Circuit precedent that denied qualified immunity to a governor who removed an official over his vote on a matter of public concern.

The court ruled for the defendants on one claim, involving a job Sanchez applied for at the Department of Labor and Training, finding no evidence of an adverse action or of a causal link to the governor’s staff.