No-Confidence Votes A Risky Proposition In Non-Union States

Under the rule in Garcetti v. Ceballos, 547 U.S. 410 (2006), the First Amendment only protects the speech of public employees if they “speak as a citizen on a matter of public concern.” In a union environment, there is little question but that a no-confidence vote on the performance of a chief is protected speech, and is a matter of public concern. However, a very different result can be reached in a non-union environment.

A recent case involved William Barnes and Jason Powell, police officers for the City of Charlack, Missouri. In July 2012, Barnes and Powell each wrote a letter addressed to the City’s Mayor and Board of Aldermen criticizing the performance of and expressing no confidence in the newly-named acting Chief of Police, Anthony Fanara. Barnes also provided testimony during a court hearing that was critical of Fanara.

The City responded by firing Barnes and Powell. They challenged their termination by filing a federal court lawsuit.

The Court dismissed the lawsuit. The Court held that “the content of the July 2012 letters speaks only to matters affecting the officers’ employment, offering concerns regarding Fanara’s ability to supervise and manage police personnel, and specifically, themselves; as well as how Fanara’s supervision methods affect the Department’s work environment and the ability of the officers to perform their duties. The letters conclude with a request that Fanara be relieved of his supervisory role over them and that a new person be appointed to supervise them and manage the Department.

“This speech amounts to nothing more than complaints and observations regarding personnel matters, which generally are deemed not to address matters of public concern. To the extent Barnes’ letter briefly refers to his concern that Fanara’s lack of ability was a safety issue affecting the City, a reading of the letter in its entirety shows its primary purpose was to further Barnes’ own employment interest.

“The form of the speech likewise shows the officers to have acted in their capacities as public employees in making it. In their letters’ introductions, Barnes and Powell identified their role as police officers and advised that their statements were to be considered official and formal notice of their lack of confidence in Fanara’s role as supervisor. The letters were addressed to the Mayor and Board of Aldermen and no other form of publication was made. While the nature of the audience is not dispositive of this First Amendment issue, it is significant that the speech was directed only to the Mayor and the Board and only in their capacity as decision makers regarding Fanara’s supervisory role over plaintiffs as police officers.”

Barnes v. City of Charlack, Missouri, 2016 WL 1615691 (E.D. Mo. 2016).