Cooperating With Criminal Investigation Into City Council Not Protected By First Amendment

As one court recently put it, “the Supreme Court’s landmark decision in Garcetti v. Ceballos, 126 S.Ct. 1951 (2007), profoundly alters how courts view First Amendment retaliation claims.” In case after case, courts are ruling that speech related to the job – speech once thought to have the highest degree of free speech protections under the First Amendment – is now completely shorn of First Amendment protection. The Court’s ruling in Garcetti that “if a public employee speaks pursuant to his or her official duties, there is no constitutional protection [for the speech]” is proving absolutely true.

A recent case involving the Edwardsville, Kansas Police Department illustrates how significant the new rules of Garcetti are. The case involved two majors in the Police Department, Jeffrey Cheek and Alvin Doty. In February 2006, the Kansas Attorney General’s office began conducting an investigation into allegations of potentially illegal and improper conduct by City employees and officials. In particular, the Attorney General’s office was investigating claims of potential corruption on the part of the Police Chief and City Council members.

In the course of the investigation, Cheek met with a representative of the Attorney General’s office. Cheek provided information to the Attorney General’s office about how one councilman had had work done on his house for free and about how another councilman asked the Police Chief to influence a cocaine charge. Cheek also told the Attorney General’s investigators that he had been informed that a councilman had the Police Chief dispose of a speeding ticket issued to his brother.

Doty also cooperated with the Attorney General’s investigation. Doty gave the investigators the same account about the attempt to influence the cocaine investigation, and provided information about the remodeling the councilman had had done on his basement for free as a result of his position with the City.

The City fired both Cheek and Doty. Cheek and Doty responded by filing a free speech lawsuit, contending that their cooperation with the Attorney General’s investigation was protected by the First Amendment. A federal district court in Kansas rejected Doty’s and Cheek’s claims. The Court began by reciting the basic proposition of Garcetti – that if an employee engages in speech during the course of performing an official duty and the speech reasonably contributes to or facilitates the employee’s performance of the official duty – the speech is unprotected by the First Amendment. The Court found that Doty’s and Cheek’s cooperation with the investigation fell into this category.

The Court ruled that Doty and Cheek “had not met their burden of providing evidence that their statements were made in their capacity as citizens rather than as part of their official job duties. The Court must take a practical view of the employment relationship and focus on the duties Cheek and Doty were expected to perform. As law enforcement officers and majors of the Police Department, it is undisputed that they were responsible for investigating criminal conduct and conducting IA investigations. Thus, regardless whether they were reporting alleged misconduct by fellow law enforcement officers such as the Police Chief (in which case their speech would have involved an internal affairs matter) or the misconduct of other City employees and officers (in which case it would have involved a criminal matter), in either event their speech owed its existence to activities the City paid Cheek and Doty to do. The Court finds as a matter of law that Cheek’s and Doty’s speech was made pursuant to their official duties rather than as citizens, and therefore that speech is not entitled to protection under Garcetti.”

Cheek v. City of Edwardsville, Kansas, 2007 WL 2417011 (D.Kan. 2007).

This article appears in the October 2007 issue