Participation In An Internal Affairs Investigation Not Protected By First Amendment

The ramifications of Garcetti v. Ceballos, 547 U.S. 410 (2006), continue to be felt in free speech cases brought by public employees. In Garcetti, the Supreme Court held that where speech is made as part of an employee’s job, it is not protected by the First Amendment. The teachings of Garcetti allow an employer to retaliate against an employee for speech made in the course of the job without fear that the employee will bring a successful First Amendment lawsuit.

A Minnesota case shows the breadth of the Garcetti rule. Todd Pearson, Mark Pearson and Andrew Rick were police officers with the City of Big Lake, Minnesota. During an internal affairs investigation into policy decisions made by the Police Chief, both Pearsons and Rick gave testimony that was adverse to the Chief. When the Pearsons were demoted from the rank of sergeant and Rick was terminated, they brought a free speech lawsuit, alleging that the adverse actions they suffered were in retaliation for the exercise of their First Amendment rights.

A federal court found that no First Amendment issues were implicated by the termination. As the Court analyzed it, “the evidence demonstrates that the officers were acting in their capacity as employees, not as citizens, and were complying with the City Administrator’s directive to cooperate with the investigation. For example, Rick testified that when members of the public questioned him about the investigation, he responded that he could not discuss confidential police business. Mark Pearson, who had been concerned about the Chief’s administration of the Safe ‘n’ Sober grant long before the investigation, conceded that his primary motivation for raising his concerns was that his name was on the grant and he did not want to be implicated in any wrongdoing. He testified that he was ‘basically covering [his] own butt’ in reporting his concerns to the City Administrator. Because no reasonable jury could conclude that the officers were primarily motivated by public concern when they participated in the investigation, the City is entitled to judgment as a matter of law on this First Amendment claim.”

Pearson v. City of Big Lake, Minn., 2010 WL 681847 (D. Minn. 2010).

This article appears in the May 2010 issue