Chief’s Secretary’s Affidavit Not Protected Speech

Firma Helget worked for the City of Hays, Kansas, as the administrative secretary for the Hays Police Department. One of Helget’s official duties was to act as the Department’s purchasing agent. In November 2010, she prepared a list of officers who were due new ballistic vests in the upcoming year. Helget presented the list to then-Assistant Police Chief Philip Hartsfield, who instructed her to remove Officer Blaine Dryden from the list. This was the first time Helget had been told to remove an officer from a ballistic vest ordering list. She removed Dryden’s name and, on December 6, 2010, she ordered the vests as Hartsfield instructed.

One month later, on January 7, 2011, the City terminated Dryden, citing an incident that occurred in late December 2010, where Dryden was accused of unprofessional and inappropriate conduct at a court hearing. Dryden maintained the City wrongfully terminated him because of his union-organizing activities, and subsequently filed a civil rights lawsuit against the City. In challenging the City’s reason for his termination, Dryden alleged the City had decided not to order him a new ballistic vest in early December 2010, prior to the incident the Department used to justify his termination.

Helget completed an affidavit at the request of Dryden’s attorney. The affidavit essentially said three things: (1) She had been instructed to remove Dryden from the ballistic vest ordering list in early December 2010; (2) Dryden was known to be an active member in the local Fraternal Order of Police chapter; and (3) former Police Chief James Braun had cautioned her about speaking with Dryden when she pursued her own grievance against the Department.

When the City learned of the affidavit, it fired Helget. Helget responded by filing a lawsuit claiming her termination violated her free speech rights.

The federal Tenth Circuit Court of Appeals sided with the City and upheld Helget’s termination. The Court noted: “We have long recognized that loyalty and confidence among employees is especially important in a law enforcement setting. And these concerns are even greater in a relatively small department, where a minor disturbance in morale might loom large.

“Helget’s position as administrative secretary required her to work closely with Police Chief Scheibler and Assistant Police Chief Dawson. The position also required her to handle confidential information in administering her duties. Indeed, the job description explicitly states ‘this employee should possess the ability to maintain confidentiality’ and that one essential function is ‘maintaining confidential records and files.’

“Scheibler testified that after Helget disclosed confidential information in her affidavit, he no longer trusted her. In other words, he questioned whether he could convey confidential information to her related to departmental matters, an essential part of her role with the Department. Scheibler’s concern also necessarily implicated Helget’s loyalty to the Department – namely, whether she was devoted to her supervisors and their obligation to manage the Department, or whether her allegiance was to others outside the Department. Thus, Scheibler’s testimony supports the finding that Helget’s speech had a detrimental impact on her working relationship with her superiors, which required personal trust and loyalty.

“On the other side of the ledger is Helget’s interest in her speech. Helget maintains her interest is significant because her statements disclosed misconduct by the City. In particular, in the context of the Dryden litigation, Helget’s sworn affidavit placed into question the City’s stated reason for terminating Dryden. But Helget admits that at the time she signed the affidavit she did not know why Department officials removed Dryden from the ballistic vest ordering list.

“A plain reading of the affidavit does not reveal any improprieties or misconduct by the City. Specific to the Dryden litigation, Helget simply attested to the fact that Dryden was generally known to be active in the local Fraternal Order of Police chapter and that she was instructed to remove Dryden from the ballistic vest ordering list in early December 2010.

“Even further, the manner in which Helget elected to air her discourse about Dryden’s termination minimizes her claimed interest in the speech. She signed an affidavit in support of a party who was adverse to the City in pending litigation. Before taking that step, Helget did not raise the issue with her superiors, let alone inform them after executing the affidavit.”

Helget v. City of Hays, Kansas, 2017 WL 33525 (10th Cir. 2017).