When Unprotected ‘Employee Speech’ Becomes Protected ‘Citizen Speech’

This article appears in the December 2021 issue of our monthly newsletter, Public Safety Labor News.

Scott Specht works as a fire marshal for the Fire Department of New York (FDNY), where his primary responsibilities involved investigating the origins of fires. In that capacity, Specht investigated a fire in March 2018 that destroyed a five-story brownstone in Manhattan where a motion picture was being filmed. The fire resulted in serious damage to the building and the death of a firefighter.

Over the course of his investigation, Specht studied physical evidence from the fire and interviewed witnesses. He tentatively concluded that the cause of the fire was either a boiler that had been the subject of unauthorized repairs, or the activities of the movie production crew. Ultimately, he informed his supervisors that his tentative conclusion was that the fire was the result of work done by the movie crew. He concluded that the movie crew had improperly installed high-intensity lighting and had drilled holes in the wall, floors, and ceilings of the basement of the brownstone, and that this work had caused the fire.

Specht subsequently participated in a meeting where, he alleged, his supervisors demanded that he prematurely terminate his work and ordered him to file a final report concluding that a flue connected to the boiler caused the fire. Specht refused to comply with the order. A supervisor allegedly told him that if he did not comply, he would be committing “career suicide.”

When Specht refused to file a report he viewed to be false, he was removed from the investigation. Specht then met with representatives of the New York City Department of Investigation and reported his complaints about his supervisors’ actions. He followed up the meeting by filing a Notice of Claim with the New York City Comptroller’s Office stating his intention to sue the supervisors and the City. The New York Daily News picked up the story and published an article headlined: “Legal Papers Suggest FDNY Coverup in Probe of Fatal Harlem Fire on Edward Norton Set.” Specht also met with the New York County District Attorney’s Office to report the alleged misconduct.

In September 2018, FDNY placed Specht on modified duty status, which substantially reduced his job responsibilities and denied him overtime opportunities. Specht contended that this demotion pushed him to apply for disability retirement benefits, an application that was eventually granted. Specht then sued his supervisors and the City, alleging that he was the victim of retaliation for engaging in speech protected by the First Amendment.

The federal Second Circuit Court of Appeals rejected the City’s attempt to dismiss the lawsuit.

The Court acknowledged that to be protected by the First Amendment under the Supreme Court’s Garcetti v. Ceballos decision, speech had to be both about a matter of public concern and have been made outside of the employee’s normal job duties (i.e., was speech as a citizen and not speech as an employee).

The Court found that an email Specht sent to other fire marshals about the chain of events amounted to “internal workplace grievances, not matters of public concern. Neither the substance nor the intended audience of Specht’s email – his colleagues – suggested that Specht sought to inform the public on a matter of political, social, or community interest. If the email were ever released to the public, it would convey no information other than the fact that a single employee was upset by an incident that occurred in the workplace. We have been clear that statements that fall into this category do not garner First Amendment protection.

“However, Specht alleged that in addition to the email, he expressed his views on the handling of the investigation of the fire outside the Department. He reported his complaints about the reaction to his investigation to the New York City Department of Investigation, he filed a Notice of Claim with the City describing what had transpired, he met with representatives of the District Attorney’s office, and he communicated with the local press, which reported on the events.

“We conclude that these reports touch on matters of public concern. Possible governmental misconduct is a legitimate and important topic of public concern. Here, Specht alleged that members of the FDNY worked to mask the cause of a serious fire – one that the FDNY itself was charged by law with investigating. He has alleged further that these actions have allowed a movie production company to evade liability for practices that contributed to the fire and are ‘common in the industry.’ Specht’s reports of these actions to outside agencies therefore implicate matters of public importance, as they relate to possible governmental malfeasance, public safety, as well as to the public fiscally.

“The City argues that each time Specht spoke about his investigation into the fire, he did so pursuant to his official duties as a public employee, not as a private citizen. They argue that, since Specht’s professional duty was to investigate the cause and origin of fires, his critique of his supervisors’ conclusion about the cause of the fire fell within the scope of his duties.

“We are not persuaded. While filing an investigative report is part of a fire marshal’s job, this case involves the refusal to file a false report, which is different than simply filing a report. We have been clear that a refusal to file a false report may receive First Amendment protection.

“By the same token, Specht’s reporting to the outside agencies what he observed and what he had been asked to do was not done in his capacity as an employee. Nothing in the City’s job description for fire marshals suggests that reporting misconduct to outside agencies would be a normal part of Specht’s professional activities. In addition, because citizens are entitled to voice complaints to the same agencies to which Specht reported, his speech has a citizen analogue.”

The Court remanded the case to the trial court to proceed to trial.

Specht v. City of New York, 2021 WL 4572841 (2d Cir. 2021).

Also in the December 2021 issue:

  • Failed Relationship Does Not Amount To Sexual Harassments
  • No Retroactive Ban On Pension Spiking
  • NJ Supreme Court Upholds AG’s Order Requiring Disclosure Of Police Disciplinary File
  • Court Upholds Arbitrator’s ‘Juneteenth’ Decision
  • Accidentally Sent Text Message Not Basis For Lawsuit
  • Lieutenant Gets Access To Blogger’s Computer
  • Firefighters Entitled To Terminal Pay On Resignation, Not Just Retirement
  • Ex-Wife Entitled To Portion Of Officer’s Pension Though Officer Not Yet Retired
  • Fire Union Gains Access To Chief’s Emails
  • Corrections Union Loses Grievance By Failing To Follow Requirements Of Grievance Procedure
  • Q & A
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