Reverberations from the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006) continue to be felt in the area of the free speech rights of public employees. A series of recent cases shows continuing debate in the Court over when an employee’s job-related speech is protected by the First Amendment.
As a general proposition, the right of a government employee to speak about matters of public concern is protected by the First Amendment. However, in Garcetti, the Supreme Court held that the First Amendment does not protect speech made by public employees as part of their official duties, and that “the Constitution does not insulate their communications from employer discipline.” Therefore, the preliminary question in all First Amendment retaliation cases since 2006 has been whether the employee made the statement “as a citizen” or “pursuant to the employee’s official duties.” If a statement is made pursuant to the employee’s job duties, then the employee has no constitutional claim.
Examples of the application of the Garcetti rule appear on a weekly basis in case law reports from around the country. Almost always, the speech of public employees is found to be unprotected. Courts have applied the Garcetti rule to conclude that statements made by employees in internal affairs investigations, reports of criminal misconduct, and memoranda challenging policy decisions are all made as part of an employee’s job, and hence unprotected.
The fine line between “citizen speech” and “employee speech” was illustrated in Turner v. Perry, 2009 WL 179205 (Tex. App. 2009). Troy Perry was a “peace officer-gang enforcement officer” for the Alief Independent School District in Texas. When he was fired, Perry filed a First Amendment lawsuit alleging that his termination was in retaliation for his engaging in protected speech. Perry pointed to two acts of speech: (1) His posting of a notice on an official law enforcement website that there would be an increased risk of gang-related violence at several of the District schools; and (2) his reporting to the district attorney of the removal from official documents of a traffic citation he had written concerning a teacher who was “politically connected.”
The Texas Court of Appeals found that the posting on the website was “employee speech” and not protected. The Court reasoned that “Perry’s own characterizations of the statements and the context in which it was made place it firmly within the scope of his employment responsibilities. We further note that the website can be accessed only by law enforcement personnel who have been given passwords, and Perry could not obtain a password without a superior’s authorization. Perry testified that the speech at issue was related to his position as a gang officer performing an investigation as provided in his job description. We therefore agree that Perry’s speech was not protected by the First Amendment.”
The Court analyzed Perry’s complaint to the district attorney quite differently, however. The Court found that “the speech at issue consists of Perry’s report to the district attorney’s office alleging that the District unlawfully tampered with an existing government record. Perry testified without contradiction that he communicated with the DA’s office via cell phone, and did not recall using the office telephone for that purpose.” In the end, the Court found that Perry’s speech revealing potential corruption to the district attorney’s office was speech as a citizen.
In Kindle v. Jeffersontown, 2009 WL 69231 (W.D.Ky. 2009), the Court addressed the question of whether whistleblowing speech is covered by Garcetti. The case involved the termination of a police officer and two dispatchers from the Jeffersontown, Kentucky Police Department. The three employees sent a report to the mayor, the Chief of Police, and the City Council alleging a wide range of misconduct by a lieutenant colonel in the Department, including improper use of a confidential computer system and a variety of acts of abuse of authority.
A court found that the employees’ report was not within the scope of their official job duties, and that the case did not come within the scope of Garcetti. As the Court put it, “whistleblowing reportage is not a part of police officers’ or dispatchers’ job duties, generally. Nor was it a core responsibility of the employees in their status working for the Department. Plaintiffs did not make their report because they were actually employed to do so. Accordingly, Garcetti is inapplicable.” In the end, however, the Department prevailed in the action when the Court found that the employees’ complaints were not a matter of public interest.
The case of Nagle v. Village of Calumet Park, 2009 WL 249974 (7th Cir. 2009) illustrates how specific a public employee must be in raising a free speech claim. Nagle is a police officer with the Calumet Park, Illinois Police Department. Nagle sued, contending he had been retaliated against for comments he made at a labor-management committee he attended in his capacity as his union safety and grievance officer. The meeting consisted of a small group of union and management representatives, including the Police Chief.
A federal appeals court found that Nagle inadequately proved whether his statements were constitutionally protected: “Here, the content or form of the statements made by Nagle at the labor-management meeting is unclear, nor is it apparent how these statements, whatever they might be, relate either to his job as a police officer, his status as a citizen, or his capacity as a union representative. Nagle testified that ‘it was a discussion amongst everybody in regards to different things and how manpower was reduced and what was going to be reduced at different times of the year.’ Not only is it unclear which of Nagle’s statements could constitute protected speech, the context in which the comments were made is also unclear.”
Contrary to the general theme is Davenport v. University of Arkansas Board of Trustees, 2009 WL 223051 (8th Cir. 2009). Davenport was a police officer with the University of Arkansas Department of Public Safety (DPS). In 1999, Davenport complained to University officials about the Police Chief’s use of resources, and the lack of adequate equipment, uniforms, and parking. In 2002, Davenport was told to report to an Arkansas State Police investigator who was interviewing employees about the DPS Police Chief’s private investigation firm. Davenport gave a statement to the investigator; subsequently, the Chief resigned just before his indictment for illegal misuse of DPS resources.
Davenport claimed that he was later turned down for a promotion because of his speech in 1999 and 2002. A federal appeals court found that the speech was potentially protected since “Davenport’s duties did not include reporting wrongdoing by a superior officer or a lack of resources. With regard to his 1999 statements, Davenport was speaking as a citizen on a matter of public concern. Further, the record fails to show that silencing Davenport’s protected speech would advance the University’s interest in promoting the efficiency of its public services.”
The Court found that Davenport’s cooperation with the Arkansas State Police investigation was not constitutionally protected. The Court concluded that “as a public safety officer, Davenport had a duty to cooperate with criminal investigations. So, his 2002 statements were given in his capacity as an employee, and therefore not entitled to First Amendment protection.”
This article appears in the March 2009 issue