Lieutenant’s Speech About Vacation Not Protected By First Amendment

Louis Van Cleef is a lieutenant with the Seneca County, New York Sheriff’s Department. In a federal court lawsuit, Van Cleef alleged that problems with his employer started in the fall of 2004 when Van Cleef, together with the undersheriff and other co-workers, was planning a non-work-related trip to Florida. Van Cleef alleged that the undersheriff obtained approval from the Sheriff to treat the Florida vacation as work-related training. Van Cleef claimed he informed the undersheriff that he was uncomfortable with using Seneca County time for personal vacation of employees, and that the Sheriff threatened him and insisted that plaintiff treat the Florida vacation as official training.

In January 2005, Van Cleef attended a conference in Buffalo with the undersheriff and other co-workers. The County was charged for the conference. Van Cleef contended that the undersheriff encouraged Van Cleef and his co-workers to leave the conference before it actually started. Van Cleef claimed he communicated his disapproval of the undersheriff‘s conduct.

As a result of his complaint, Van Cleef argued, he experienced retaliation from the Sheriff and the undersheriff which “made his life hell” including: Alienating him from his co-workers; instigating a drug investigation of Van Cleef and his girlfriend; conducting surveillance on Van Cleef; subjecting Van Cleef to disparate scrutiny at the office; giving Van Cleef unfavorable work assignments; creating bias against him from other co-workers; attempting to discipline or discharge Van Cleef on false grounds; using the District Attorney’s office to make false accusations against Van Cleef; and attempting to ruin Van Cleef’s personal and professional reputation.

Van Cleef contended that the alleged retaliation violated his free speech rights, and that his complaints about the way the Sheriff’s Department treated vacation time were a matter of public interest and were protected by the First Amendment. A federal court saw things differently.

The Court found that Van Cleef’s speech was “purely private” speech about his job, and not a matter of public interest. As the Court phrased it, “Van Cleef spoke on both occasions as an employee, and in private. In addition, the comments contain no sense of urgency, nor formality, nor inclination to warn the citizenry of some pending harm. There is no allegation of any concern for the public welfare. For instance, Van Cleef’s allegation that he spoke to the Sheriff concerning the use of Seneca County hours for the dive training in Florida, was ordinary speech in an employment context regarding whether to use Seneca County time or his personal vacation time for the Florida trip. The same is true with respect to the second instance when Van Cleef complained of the Buffalo conference. Van Cleef does not allege that he made the statement to relevant authorities or to the public. Assuming Van Cleef directly complained to the undersheriff, it was routine speech concerning an employment issue made in an employment context within institutional channels and accordingly, purely private speech.”

Van Cleef v. Seneca County, 2009 WL 1150407 (W.D.N.Y. 2009).

This article appears in the August 2009 issue