Possibly Protected Speech: Government Employees and the First Amendment

“These questions reflect one employee’s dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre.”
– Connick v. Myers, 461 U.S. 138 (1983)

“Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.”
– Garcetti v. Ceballos, 547 U.S. 410 (2006)

Government employees can raise myriad causes of actions in protest of their treatment in the workplace. First Amendment claims, however, have become increasingly tough to prove.

As a general rule, and with limited exceptions, post-Garcetti Second Circuit decisions refuse to extend First Amendment protection to public employees primarily because statements or reports pursuant to official duties are not protected speech. In addition, the Second Circuit is intolerant of First Amendment claims by employees who in reality are simply expressing individual grievances or personal concerns, using the analysis set forth in Connick v. Myers.

Government employees can raise myriad causes of actions in protest of their treatment in the workplace. First Amendment claims, however, have become increasingly tough to prove.

Pickering, Connick and Garcetti: (Very) Limited Protection
Although government employees who claim to suffer adverse employment actions in response to their verbal and written communications still rely upon Pickering v. Board of Education of Township High School District 205,1 it offers limited protection.

Pickering rejected a school district’s termination of a teacher who “spoke” through a letter to a newspaper on an issue of “public importance,” since public employees are still citizens with First Amendment rights. In fact, Pickering noted that public employees’ opinions are crucial to educate the outside world about matters of public importance. Pickering focused on who would benefit from the employee’s speech, the public or really just the employee?

Fifteen years later, Pickering could not be used to salvage a government employee’s First Amendment claim in Connick;2 Connick cautioned that “[g]overnment offices could not function if every employment decision became a constitutional matter.” Speech by a disgruntled employee about a matter of personal interest is unprotected, “absent the most unusual circumstances [because] a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” The Connick “speech” was nothing more than a questionnaire circulated to an employee’s colleagues in her effort to prevent her own transfer. “Indeed, the questionnaire, if released to the public, would convey no information at all other than the fact that a single employee is upset with the status quo.” The court also noted the questionnaire’s purpose was “to gather ammunition for another round of controversy with her superiors.” The questionnaire was directly inspired by the government employee’s continuing conflict with her superiors and it impeded the office’s ability to function.

More than 20 years later, in Garcetti v. Ceballos, Los Angeles County Deputy District Attorney Ceballos wrote a memo to his supervisors recommending dismissal of an indictment because he believed a detective’s affidavits contained inaccuracies. When he claimed that his supervisors retaliated against him with demotion solely because of this memo, the Supreme Court rejected his First Amendment claim because he was not speaking as a citizen but rather pursuant to his official duties.

The First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities. Accordingly, Ceballos’ supervisors were entitled to evaluate his memo and discipline him accordingly. Ceballos wrote his memo as a part of his employment duties and not as an exercise of his rights as a citizen. Government employers, just like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.3

The Test for Protected Speech

To benefit from First Amendment protection, government employees must prove:
Although they are public employees, they “spoke” as citizens on a matter of public concern;
As a result, they suffered an adverse employment action; and
The speech itself motivated the imposition of the adverse action.

To evaluate government employees’ motives, the courts consider:
Is the speech solely related to the employee’s own situation, and
Does the employee/speaker have a personal grievance, or does a broader public purpose exist?

Required Reports
Sometimes, the analysis is easy and the action is dismissible on motion. For example, in Matthews v. Lynch, an officer filed reports alleging employee misconduct (including driving while intoxicated and misusing funds) with assorted state agencies. Since the allegations in the complaint themselves established that the employee, an officer in the State Police Internal Affairs Unit, was specifically tasked with investigating police misconduct, the report was part of his official duties and therefore not protected by the First Amendment.

The employee testified at oral argument that he learned of a cover up and reported it as part of his “broad responsibility to investigate and report police misconduct, including the misconduct alleged in the complaint.” Also, he conceded at oral argument that he first reported the misconduct “up his chain of command” and that making complaints to outside agencies was “part and parcel” of his ability to properly execute his duties.4

Bearss v. Wilton also rejected a public employee’s First Amendment claims, agreeing with the district court that the record supports the conclusion that Bearss’s statements were motivated by personal interest in responding to criticism of her job performance and not motivated by a desire to “advance a public purpose.”

Bearss argued that since her statements addressed potential malfeasance by the former city treasurer, she spoke as a private citizen on a matter of public concern. She cited two examples of allegedly protected speech. First, her statements were published in a local newspaper that rebutted allegations that former city officials had deleted public documents in violation of state law. Second, she testified at a hearing in which she rebutted allegations that employee benefits had been improperly made by the former city treasurer.

In finding that the speech was not entitled to the protection of the First Amendment, the district court noted that “Bearss was acting as an employee with first-hand knowledge of the City’s computer use when she responded to the reporter’s inquiries.” In fact, her speech was described as “owing its existence to a public employee’s professional responsibilities.” And the forums in which she spoke were not available to private citizens unless they were employees of the City. Further, the speech was not intended to remedy the working conditions for a group of employees.5

Job descriptions and employee manuals also impact the analysis. For example, Paolo v. Spada evaluated the role of an employee manual, and held that when a manual states that “no employee shall fail to report information to a superior, which may prove detrimental to the department,” oral and written complaints to Internal Affairs about mismanagement and potentially unlawful conduct are pursuant to official duties. Reporting potential wrongdoing to Internal Affairs is part of a state trooper’s duties and is not First Amendment speech.6

Similarly, in D’Olimpio v. Crisafi, a state employee’s report to the Inspector General was an employment responsibility, even though that report did not only address workplace performance, but also included claims that his boss misrepresented his credentials, improperly used his police vehicle for personal use and worked at another job during business hours.7

In Morey v. Somers Central School District, the head custodian of a school reported fallen insulation in a gymnasium in the course of his responsibility to clean up messes and report any potential safety hazards to the Superintendent of Buildings. He “spoke” pursuant to these duties and never publicly voiced his concerns about potential asbestos contamination. The Second Circuit held that the custodian “pursued exclusively internal channels for which there is no relevant citizen analogue,” and was not persuaded by the fact that the custodian continued to press his asbestos contamination concerns even after being told to leave the matter alone.8

Jackler: Exposing Corruption
In contrast, in Jackler v. Byrne, a law suit that actually involved refraining from speech, the Second Circuit located the “citizen analogue” that was lacking in Morey and reversed a district court decision that had denied a probationary police officer’s First Amendment claim.

Probationary Police Officer Jackler was called to a crime scene to assist in an arrest. After the defendant was handcuffed, the defendant cursed at the initial officer at the scene, who punched him in the face. The police department’s written policy prohibited indiscriminate use of force. When that defendant filed a civilian complaint of excessive force, Jackler was directed by a lieutenant to file a statement known as a Supplemental Report to the civilian complaint, since Jackler was identified in the civilian complaint as a witness to the punch. Jackler did so but was then pressured to not only withdraw his Supplemental Report but to refile a new report to cover up the post-handcuffing punch. When he refused, Jackler – still in his probationary period – was terminated.9

The Second Circuit, recognizing that exposure of official misconduct, particularly in a police department, is of great concern to the public, held that “Jackler had a strong First Amendment interest in refusing to make a report that was dishonest.”10 Jackler is no different than a citizen who “has truthfully reported a crime [and] has the indisputable right to reject pressure from the police to have him rescind his accusation and falsely exculpate the accused.”11

Further, “[t]he government as an employer has broad discretion to manage its operations. But that discretion does not include authority to coerce or intimidate its employees to engage in criminal conduct by filing reports that are false in order to conceal wrongdoing by another employee or to conceal eyewitness corroboration of civilian complaints of such wrongdoing.”12

With gratitude to Summer 2013 college students Leslie Teng and Ayisha McHugh for their research and interest in all things Garcetti, and to college graduate Abbey Jay. And with thanks to Katy Isakovich, a 2013 Brooklyn Law School graduate, for her edits and insights.

Martha Krisel is Second Vice President of the NCBA and Chief Deputy County Attorney for Special Projects at the Office of the Nassau County. The views expressed in this article are her own.

1. 391 U.S. 563 (1968).
2. Connick v. Myers, 461 U.S. 138 (1983).
3. Garcetti v. Ceballos, 547 U.S. 410 (2006).
4. Matthews v. Lynch, 483 Fed.Appx. 624 (2d Cir. 2012).
5. Bearss v. Wilton, 445 Fed.Appx. 400 (2d Cir. 2011).
6. 372 Fed.Appx. 143 (2d Cir. 2010).
7. 462 Fed.Appx. 79 (2d Cir. 2012).
8. 410 Fed.Appx. 398 (2d Cir. 2011).
9. Jackler v. Byrne 658 F.3d 225 (2d Cir. 2011), cert. denied, 132 S.Ct. 1634 (2012).
10. 658 F.3d at 240.
11. Id. at 241.
12. Id. at 242.