In Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), the Supreme Court significantly narrowed the scope of public speech by public employees, holding that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Following the dictates of Garcetti, lower federal courts have dismissed free speech lawsuits filed by police officers who alleged that they were retaliated against for giving truthful testimony in internal affairs investigations, testifying before a grand jury, reporting the misconduct of other officers, or cooperating with criminal investigations.
One narrow exception has appeared to the Garcetti rule that on-the-job speech is entitled to no constitutional protections. That exception is where the speech is made by a union official pursuant to some official union function.
A recent case out of Illinois illustrates the state of free speech law today, and how the exception to the Garcetti rule applies. The case involves John Shefcik, a police officer with the Village of Calumet Park, Illinois. Prior to 2003, Shefcik served as secretary for the police union; starting in January 2003, Shefcik was the union president. From January 2003 until March 2007, Shefcik filed at least 50 grievances on behalf of himself and union members.
In addition to grievances, Shefcik filed Freedom of Information Act (FOIA) requests, wrote letters to the Police Chief, and communicated with Village trustees about problems he saw either internal to the Police Department or with the Village’s funding of the Police Department.
Shefcik eventually filed a lawsuit against the Village, alleging that he was retaliated against for the exercise of his First Amendment rights. Shefcik contended that the retaliation consisted of a one-day suspension, the denial of assignment to a tactical supervisor position, the denial of training, the denial of overtime work, a three-day suspension for improper evidence handling, and the denial of a promotion to the position of investigator.
The Village moved to dismiss Shefcik’s free speech claims, contending they were barred by the Garcetti decision since the statements Shefcik made were job-related.
The Court refused to dismiss Shefcik’s lawsuit. The Court held that “Garcetti requires that before analyzing whether an employee’s speech is of public concern, a court must determine whether the employee was speaking ‘as a citizen’ or, by contrast, pursuant to his duties as a public employee. A federal appeals court has concluded that the deputy sheriff’s comments that precipitated the adverse action taken against him were made in his capacity as a union representative, rather than in the course of his employment as a deputy sheriff, and thus the Supreme Court’s decision in Garcetti did not apply. In other words, a public employee who makes a statement in his capacity as a union representative is speaking as a citizen, not an employee.
“Shefcik’s union grievances, certain FOIA requests, and letters to the Chief and Village officials were made on behalf of the union, and thus Garcetti does not bar the Court from determining whether such speech is protected by the First Amendment.”
The Court then turned to traditional First Amendment analysis to determine whether Shefcik’s speech could be protected by the First Amendment. As an initial proposition, the Court found that the subject of Shefcik’s complaints were matters of public concern within the scope of the First Amendment. The Court observed that “taking the facts in a light most favorable to Shefcik – as the Court is required to do in this procedural posture – although some of the content of Shefcik’s grievances and FOIA request may be characterized as internal office affairs, other complaints and queries focus on community concerns such as police officer safety, public safety, and a possible abuse of the Illinois Open Meetings Act concerning a Police Board and Fire Commissioners meeting. Issues of police officer safety are matters of public concern. Indeed, if police officer safety is at issue, the officer’s ability to assist the needs of the community are also jeopardized.”
The Court found that not all of Shefcik’s speech concerned matters of public interest. In the Court’s view, issues such as police overtime pay, seniority, whether the police administration bullied police officers, an administrator’s use of profanity, and police officer salaries were not matters of public concern and instead “concerned internal police office affairs.” On the whole, though, the Court thought that Shefcik’s complaints on behalf of the union were matters of public concern.
Because the Court refused to dismiss Shefcik’s lawsuit, it set the matter for trial on whether the adverse action cited by Shefcik violated the First Amendment.
Shefcik v. Village of Calumet Park, 2007 WL 3334329 (N.D.Ill. 2007).
This article appears in the January 2008 issue