District court gets around Garcetti in Mount Vernon retaliation case

Few First Amendment retaliation plaintiffs have been able to withstand a Garcetti defense in the Second Circuit ever since the Supreme Court said that public employees do not engage in protected speech if their whistleblowing or other statements are made pursuant to their official job duties. But some district courts are allowing these cases to proceed. This case is one of them.

The case is Stokes v. City of Mount Vernon, 2012 U.S. Dist. LEXIS 118386, a decision by Judge Briccetti on August 14. Stokes was the city's Inspector General. He prepared a report that slammed a city program called Payments in Lieu of Taxes, or PILOT, administered by the city's Industrial Development Agency and run by Maureen Walker. Stokes accused Walker of all sorts of misconduct and ethics violations. The City Council then passed a law abolishing the Inspector General's office. After a state court held that this legislative action violated state procedure, the City Counsel next voted to sharply reduce Stokes' salary, causing him to resign. Stokes sued the City, the mayor and members of the City Council, claiming they constructively discharged him in retaliation for his critical report on PILOT.

The Supreme Court held in Garcetti that public workers are not speaking as citizens when they speak pursuant to their official job duties. As Stokes prepared his report in his capacity as Inspector General, his claim against the City and the mayor is dismissed under Rule 12. They employed Stokes, and as brutal as it sounds, there is no First Amendment protection for his termination by the City and mayor as well as members of the Board of Estimate who also have some authority over Stokes (as they can fix his salary). That holding is not remarkable. What is remarkable is Judge Briccetti's finding that Stokes may pursue his First Amendment claim against members of the City Council because they do not have employment authority over Stokes. Members of the council belong the legislative branch; it is the executive branch, the mayor to be exact, which can appoint and remove the Inspector General. The councilmembers are not Stokes' employer. This is an issue of first impression in the Second Circuit. Adopting the reasoning from federal cases around the country, Judge Briccetti finds the "employer/employee distinction makes sense." The judge reasons:

The rationale for the Garcetti rule is that restricting speech owing its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. The individual defendants [on the City Council] do not point out any hiring, firing, or employment authority they have over plaintiff. ... Therefore, the rationale underlying Garcetti is inapplicable and the Court cannot conclude that plaintiff's speech is not protected simply because the speech at issue may have occurred in the context of plaintiff's official job duties.

Other issues in the case: the district court says that the complaint states a claim for constructive discharge even though Stokes quit seven months after the City Council reduced his salary. Waiting too long to resign may kill the constructive discharge claim. But since Stokes tried to resolve his dispute with the city during that time, he resigned within a reasonable period of time. The district court also allows Stokes to proceed on his procedural due process because he had a property interest in his unelected position and there was no adequate post-deprivation remedy available since an Article 78 proceeding is not the proper vehicle to challenge legislative action. The substantive due process claim may also proceed because Stokes adequately alleges that defendants' conduct was arbitrary and outrageous.