The case is Looney v. Black, decided on December 21. Looney's case does not get out of the starting gate. The Court of Appeals says the complaint does not state a claim and that the defendants are entitled to qualified immunity. If you handle cases like this, you know that public employees who speak pursuant to their official duties -- i.e., the speech owes its existence to his professional responsibilities -- have no protection under the First Amendment from retaliation, even if their speech touches upon important public matters. The Supreme Court said this in Garcetti v. Ceballos (2006).
It all started when Looney spoke to a town resident about the public health implications of wood burning and smoke discharge. Looney claims he was voicing his opinion regarding an outside agency enforcing a cease and desist order against town residents. As alleged in plaintiff's complaint, his job duties made him "responsible for the administration and enforcement of the State Building Code at the municipal level, including the organization and conduct of the building advisory, inspection and enforcement program." He also kept “uppermost in mind his obligation to enforce the State Building Code to ensure the safety of the townspeople." Looney essentially pleads himself out of federal court. The Court of Appeals says that "the alleged speech set forth in the complaint was closely related to his work as Building Official." The Court (Jacobs and Straub) adds:
The only sensible way to interpret Looney’s allegations is that he spoke on these issues because he was in an official position that required, or at least allowed, him to do so. It follows that these statements owed their existence to his position as the Building Official. As a consequence, Looney has not adequately alleged that he spoke as a private citizen.What strikes me about the Second Circuit's Garcetti claims is the unanimity of most of the decisions, even though this Court used to allow many of these cases to proceed prior to Garcetti. This time around, though, Judge Droney -- recently appointed to the Court of Appeals -- dissents. He thinks dismissal is premature and that "[e]vidence about both the specific content of Looney’s speech to the Marlborough residents and Looney’s job responsibilities must be presented before it would be appropriate to dismiss his claim on the ground of qualified immunity." After noting that plaintiffs have to show they spoke as private citizens and not as public employees, Judge Droney writes:
It may be that Looney’s position as Building Official made it possible for him to deliver his comments to the Marlborough residents, and so the comments may have “owed [their] existence to [Looney’s] job duties.” However, Looney’s complaint sufficiently alleges that his comments were not made “in furtherance of” his job duties – either formal or informal. After making the comments to a Marlborough resident, Looney alleges that he was admonished by his supervisor (the Director of Planning and Development for the Town of Marlborough) to “restrict his actions in the office to that of his duties and not to make determinations or engage in discussions of substantive matters outside his job duties concerning other Town agenc[ies] or jurisdiction[s].” Looney also alleges that he was told by that supervisor to stop “voicing his opinion regarding an outside agency enforcing a cease and desist order against Town residents.” It could be that a Building Official whose principal responsibilities are the enforcement of the state building code would be involved as part of his job with wood-burning stoves and the potential harms they pose to public health, or – less likely – that his job involved other agencies’ cease and desist orders, but such a conclusion is not clear on the basis of the pleadings alone.