Tuesday, January 21, 2014

Supreme Court grants certiorari in Garcetti-style employee speech case

Eight years after the Supreme Court limited the rights of public employees to speak out in the workplace, the Court is returning to that issue, granting certiorari on the issue of when management may discipline workers for testifying truthfully in court.

The case is Lane v. Franks, hailing from the Eleventh Circuit Court of Appeals. First, some background, in 1968, the Supreme Court held in Pickering v. Board of Education that public employees have the right to speak out on matters of public concern without retaliation (unless their speech disrupts the workplace). Fifteen years later, in Connick v. Myers, the Court reaffirmed this right, clarifying that "public concern" speech is determined by examining the context, content and form of the speech. But in 2006, the Court held in Garcetti v. Ceballos that even if the speech addresses a matter of public concern, the First Amendment only protects that speech if the employee speaks as a citizen. If the employee speaks pursuant to his official job duties, it's not free speech. It's work speech. So if a government accountant blows the whistle that someone embezzled money, that's work speech, not citizen speech, because it was his job to speak out on this. If the janitor in a government building somehow finds out about corruption in one of the offices that he cleans, his speech on that corruption is protected.

The problem for government workers is that most of the whistleblowing that anyone cares about -- or which comes from a reliable source -- will not be citizen speech. If the employee knows enough to speak out, he probably learned about the malfeasance in the course of his job duties. Which makes it work speech, not citizen speech. Would the janitor really be fired for speaking out on the corruption? Would anyone care what the janitor thinks? Maybe not, but the government accountant has to think twice before speaking out. If he works for thin-skinned people who might retaliate against him, he may not have a constitutional remedy for the retaliation.

An early school of thought held that Garcetti only knocked out speech that the plaintiff was mandated to utter, i.e., if your job is to advise other government professionals, that advice is not free speech. But things did not work out that way. The Circuit Courts have broadly interpreted Garcetti to render unprotected a great deal of work-related speech. Since 2006, less than a handful of plaintiffs have survived summary judgment on Garcetti claims in the Second Circuit Court of Appeals, which held in Weintraub v. Board of Education (2010) that the First Amendment does not protect the speech if it is "part and parcel" of the plaintiff's concerns about his ability to perform his job. The "part and parcel" legal standard swallows most of these claims. A quick and easy rule in Garcetti cases is that if the speech grows out of the plaintiff's everyday job duties, it's probably not protected. That covers a lot of speech.

Plaintiffs' lawyers have waited years for the Supreme Court to take on another public employee free speech case so it could clarify the standard and perhaps open the spigot for successful claims. That day has arrived, but it is unclear whether the Court will clarify when an employee speaks pursuant to his official job duties. For now, the Court will decide whether you can be fired for courtroom speech. The decision may include dicta or further explanatory language that gives everyone additional guidance about how these cases work.

In Lane v. Franks, the case up for review in the Supreme Court, the plaintiff was the director of a training program for at-risk youth. He testified in the grand jury and at two federal trials that a politician (Schmitz) was on the payroll but wasn't doing any work. The politician was found guilty, and plaintiff was fired, he claims, in retaliation for his testimony. The Eleventh Circuit held that plaintiff did not engage in free speech, reasoning:

No one disputes that Lane was acting pursuant to his official duties as CITY’s Director when he investigated Schmitz’s work activities, spoke with Schmitz and other CACC officials about Schmitz’s employment, and ultimately terminated Schmitz’s employment. That Lane testified about his official activities pursuant to a subpoena and in the litigation context, in and of itself, does not bring Lane’s speech within the protection of the First Amendment. Furthermore, because formal job descriptions do not control, that Lane’s official duties did not distinctly require him to testify at criminal trials falls short of triggering First Amendment protection.

Although not dispositive, we consider it pertinent that the subject matter of Lane’s testimony touched only on acts he performed as part of his official duties. Nothing evidences that Lane testified at Schmitz’s trial “primarily in [his] role as a citizen” or that his testimony was an attempt to comment publicly on CITY’s internal operations. In the light of our precedents, the record fails to establish that Lane testified as a citizen on a matter of public concern: as a matter of law, he cannot state a claim for retaliation under the First Amendment.
Other Circuits have held that trial testimony is protected under the First Amendment, notably the Third Circuit, which held in Reilly v. City of Atlantic City (2008) that all citizens have a duty to tell the truth at trial and that the First Amendment protects such testimony. There is much flowery language in Reilly about the importance of courtroom truth-telling. Post-Garcetti, the Second Circuit has addressed this issue in a non-precedential summary order, Kiehle v. County of Cortland (2012), which held that a DSS social worker's testimony in Family Court in a disputed child neglect proceeding was not free speech. (I represented the plaintiff in Kiehle. A certiorari petition was filed in that case, but the Supreme Court did not bite). As this issue has been brewing in the federal courts for years, having granted certiorari on January 17, the Supreme Court will now rule on this question.
pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” - See more at: http://caselaw.findlaw.com/us-2nd-circuit/1500093.html#sthash.iDw0V1N5.dpuf
“pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” - See more at: http://caselaw.findlaw.com/us-2nd-circuit/1500093.html#sthash.iDw0V1N5.dpuf
“pursuant to” his official duties because it was “part-and-parcel of his concerns” about his ability to “properly execute his duties,” - See more at: http://caselaw.findlaw.com/us-2nd-circuit/1500093.html#sthash.iDw0V1N5.dpuf

1 comment:

Phillip Goldstein said...

Am I the only one that does not see what this case has to do with freedom of speech? The plaintiff's speech was compelled under penalty of law, not freely offered.

That said, how can any court endorse the power of a governmental agency to fire an employes for complying with a subpoena? Even if there is no statute barring such power from being exercised, it undermines the justice system itself to allow government to retaliate against an employee who admirably complies with a court order.

In sum, there must be some deterrent to such firings. The problem is section 1983 is not suited to the problem.