Police officer gets a trial on her municipal corruption whistleblower claim

The Court of Appeals finds that a police officer in Connecticut can bring her First Amendment retaliation case to the jury arising from the termination of her employment after she blew the whistle on fraudulent payroll practices that allowed officers to pad their pensions.

The case is Ricciuti v. Gyzenis, decided on August 24. Few public employees actually win their First Amendment retaliation cases in the Court of Appeals, which has to follow the Supreme Court's Garcetti opinion, which says that workplace speech is not protected under the First Amendment if it arises from the employee's normal job duties. Since an employee's most relevant whistleblowing often relates directly to his job responsibilities, even the best whistleblowing may not be protected under the First Amendment. Since Garcetti was decided in 2006, few public employees have been able to convince the Court of Appeals they they engaged in free speech in exposing work-related wrongdoing.

Ricciuti bucks that trend. She was a patrol officer who became concerned that the department had outdated equipment that the department could not afford to replace. At the same time, officers were taking too much overtime. On their own time, Riccuiti and another officer prepared an "overtime matrix" that highlighted the excessive overtime problem and what it was costing the taxpayers. It was not Ricciuti's job to prepare this matrix, which she shared with local political leaders. She was terminated from her position soon afterwards.

The issue is whether the defendants are entitled to qualified immunity, which gets public defendants off the hook if their illegal actions were not in violation of clearly-established law. In other words, if the state of the case law was fuzzy at the time, the defendants win the case since they cannot be expected to know the state of the law the way a law professor or some other legal expert would. The problem for defendants is that they are appealing the denial of their motion for summary judgment, which means the Court of Appeals (Leval, Pooler and Wesley) have to accept Ricciuti's side of the story as true for purposes of determining whether the defendants violated clearly-established law. This is where the defendants' appeal fails. The Court of Appeals says:

No reasonable officer faced with Ricciuti's version of the facts could have concluded that Ricciuti's speech was made "pursuant to" her official duties as a patrol officer under the meaning of Garcetti merely because her speech owes its existence to her job. ... The law on this issue was clearly established at the time Ricciuti was fired.

A side note to this case is that the Court of Appeals acknowledges that the Court itself has not resolved whether the qualified immunity analysis asks whether the defendants' actions were "objectively reasonable" even if they violated clearly established law. For Section 1983 practitioners, this is an interesting issue, since the Second Circuit has noted that the Supreme Court has never adopted the "objective reasonableness" prong of the qualified immunity analysis, and that prong has led to the dismissal of many cases. The Second Circuit in this case determines that it can decide the case even without ironing out that issue.