The Free-Speech Door Perhaps Opens A Crack

In Garcetti v. Ceballos, 126 Sup.Ct. 1951 (2006), the Supreme Court held that the First Amendment’s free-speech protections did not apply to public employees speaking or writing about matters in the course of their jobs. The Garcetti case has already been applied by several courts to rule that speech made by public safety employees in the course of their jobs is unprotected.

A federal court may have opened the free-speech door a crack in a recent case involving Kimberlee Gray, an investigator in the City of Cincinnati’s Office of Municipal Investigation (OMI). OMI is an independent investigative body that looks into allegations of serious misconduct by City employees. For a period of time, Gray served as the acting manager of OMI.

In 2001, Gray became convinced that the City Solicitor and City Manager were attempting to interfere with an investigation OMI was conducting into payments made by the City in connection with a redevelopment project. Gray appeared before the City Council to report her suspicions of interference, and requested that she report directly to the Council and not the City Manager on the investigation. The Council approved her request. Subsequently, Gray was not selected for the permanent position of OMI Manager, and was returned to her former job as an investigator. The new OMI Manager issued a directive forbidding OMI investigators from communicating with City Council members about their investigations, and sent Gray a memorandum that the Manager was “in charge of all investigations” and that Gray was to report directly to her.

When the new Manager resigned, Gray did not fare any better with her replacement. In little more than a year, Gray transferred to the internal audit department of the Citizens’ Complaint Authority, leaving OMI.

Gray filed a lawsuit under the First Amendment alleging that she was retaliated against because of exercise of her free-speech rights. The heart of Gray’s allegation was that retaliation had occurred because of her presentation to the City Council.

A federal court refused to dismiss that portion of Gray’s lawsuit. The Court acknowledged that “the difficulty in this case is that Gray’s official duties, both as acting manager and investigator, was to investigate and report on possible wrongdoings,” thus placing Gray’s speech clearly within the “unprotected” category under Garcetti.

Nonetheless, the Court found that her speech to the City Council was protected. The Court reasoned that “while Gray may have been communicating with Council in her capacity as either acting manager or investigator, she was not performing her official duties. Instead, Gray appeared, at Council’s request, to report on interference with her official duties. The Court finds that there is no evidence in the record that this speech affected operations of OMI or the City. For these reasons, Gray’s communications with the City Council were protected.”

The Court reached a different conclusion with respect to a memorandum that Gray sent to the Safety Director for Cincinnati’s Police and Fire Divisions requesting an update on whether discipline had been issued in cases involving a number of police officers. The Court found that the memorandum was written “pursuant to her official duties; and therefore Gray was not speaking as a citizen for First Amendment purposes.”

Gray v. City of Cincinnati, 2006 WL 2193187 (S.D.Ohio 2006).

This article appears in the September 2006 issue