Internal Affairs Investigation Not Protected By First Amendment

Under the Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), public employees have no free speech right when they “make statements pursuant to their official duties.” In other words, the Constitution provides no protection to an employee for speech that is part of the job, and the employer is constitutionally free to discipline the employee for the speech, even if the speech is truthful.

A lawsuit brought by O’Fallon, Missouri police officer David Buehrle shows the extent of the Garcetti rule. In July 2005, the Police Chief assigned Buehrle to work at City Hall and conduct certain investigations at the request of the mayor. The mayor assigned Buehrle to investigate thefts of funds by the former court clerk, missing City property, an issue involving developers and their relationship with City employees, the destruction of computer files, and a tow company contract.

After working at City Hall for several months, Buehrle made a report of his findings to the City’s Board of Aldermen, which asked Buehrle to make a report of his findings at a closed session meeting on January 26, 2006. The City Administrator believed Buerhle’s report was inappropriate, and later told the Chief that he would not allow the promotion of Buehrle as long as he was City Administrator. After a series of occasions when he was either not promoted or transferred, Buehrle brought a First Amendment free speech lawsuit against the City, alleging his treatment was in retaliation for his report to the Board of Aldermen.

A federal trial court found that Buehrle’s report, even though it may have been about a matter of public interest, was unprotected by the First Amendment under Garcetti. The Court held that “it is undisputed in this case that Buehrle, as a patrol officer assigned to City Hall, had been given a special assignment by the Mayor to investigate allegations of wrongdoing by internal employees and former employees of the City, and that he was specifically commissioned by the Board of Aldermen to give the presentation on what he had been investigating during this special assignment and what information he had uncovered. Buehrle testified that he sought the City Administrator’s advice on how to make a presentation to the Board of Aldermen and the Administrator advised him to ‘give a synopsis as to where things were at…or a conclusion as to what maybe could be done to prevent the issues. Buehrle also testified that the report he provided to the Board of Aldermen discussed each issue briefly and offered either a conclusion or possible solution for each issue.

“Buehrle conducted his investigations and prepared and delivered his report to the Board of Aldermen as a function of his job assignment to conduct investigations at City Hall, and per his own testimony, the solutions and recommendations he provided to the Board of Aldermen during his report were also within that assignment. It is therefore undisputed that Buehrle did not speak as a citizen when he made his report to the Board of Aldermen, and that he has no cause of action based on the Administrator’s reaction to the report. That the Administrator felt that Buehrle overstepped his bounds in making the speech does not change the fact that he spoke as a public employee. The controlling factor is whether the expressions were made pursuant to the employee’s duties, not whether the employer ultimately approved of the expressions or related actions.”

Buehrle v. City of O’Fallon, Mo., 2011 WL 2708495 (E.D. Mo. 2011).

This article appears in the September 2011 issue