Tuesday, November 15, 2011

First Amendment does not protect employee speech to newspaper and public board

The Court of Appeals holds that a Vermont woman who suffered retaliation after speaking to the newspaper and testifying before a public board about job-related matters does not have a claim under the First Amendment because her speech was not protected under the Supreme Court's Garcetti decision, which holds that speech is unprotected if the plaintiff made it pursuant to her official job duties.

The case is Bearss v. Wilton, decided on November 3. This is a summary order, so the Court does not provide all the facts, but here is what happened: Debra Bearss made two statements: (1) she spoke to the newspaper "rebutting allegations that former city officials had deleted public documents in violation of state law," and (2) she gave testimony "at a Board of Civil Authority hearing regarding Bearss' job performance in which she rebutted allegations that employee benefits had been improperly made by the former city treasurer." Bearss was the City of Rutland's information technology coordinator.

As for the newspaper comment, the Second Circuit (Katzmann, Winter and Wesley) agrees with the district court that plaintiff's speech is not protected because she "was acting as an employee with first-hand knowledge of the City's computer use when she responded to the reporter's inquiries." It was her job to speak to the newspaper in that a city memo said that "any computer issues need to be addressed to Debra Bearss, IT Coordinator." This was comparable to an official communication and therefore not citizen speech.

As for the public hearing testimony, this issue is more complex. Bearss argues that her comments actually reflected her policy disagreements with the City regarding employee benefit decisions. She also says the speech addressed potential malfeasance by the former city treasurer and she therefore spoke as a private citizen. But the Second Circuit sees it differently: "the record supports the conclusion that Bearss' statements were motivated by personal interest in responding to criticism of her job performance and not motivated by a a desire to 'advance a public purpose.'" As there is no citizen analogue to Bearss' speech in that her statements "were made in a forum not available to citizens who are not employees of the City of Rutland," she did not engage in free speech, and the case is dismissed.

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