Friday, March 16, 2018

Public employee gets around Garcetti speech rule, for now

One of the more vexing issues in constitutional law is when public employees can speak out on important matters without fear of retaliation. In 2006, the Supreme Court ruled 5-4 that public employees have the right to speak out only in their capacity as citizens and not as employees. This distinction kills off the case if plaintiff speaks pursuant to his official job duties. Since the Garcetti ruling, most plaintiffs have lost their cases because their speech often draws from their official duties and management has the right to regulate that speech, no matter how important it is.

The case is Brown v. Halpin, issued on March 15. Brown was a lawyer for the Connecticut comptroller, providing legal advice to the retirement commission. She discovered that the state was not following the rules governing disability benefits, i.e., that disabled state employees were receiving benefits even if they could work other jobs. Brown called shenanigans on the statewide policy violation, advancing her concerns in writing. But the supervisors would not provide Brown's written objections to the commission unless she changed them to falsely support the incorrect standard for disability benefits. Brown would not do that, and she raised her concerns with the state auditor's office. Then Brown suffered retaliation for speaking out.

Does Brown have a case? What about Garcetti's rule that it's not free speech if the employee speaks pursuant to her official job duties? Brown's speech certainly related to her duties. But the district court denied the motion, citing Jackler v. Byrne, 658 F.3d 225 (2d Cir. 2011), which held that a rookie police officer could not suffer retaliation after refusing to falsify a police report that implicated a sergeant in police misconduct. In other words, he had the right to "refuse to engage in unlawful conduct under the guise of his job responsibilities. (I argued Jackler). The trial court in Brown further held that "the pleadings do not admit that Brown is under an employment obligation to report misconduct to the Auditors."

The individual defendant in Brown appealed to the Second Circuit, claiming entitlement to qualified immunity. You can take up this immediate appeal on immunity grounds if the facts are clear that the defendant did not violate clearly-established law. But the Circuit has no jurisdiction to hear this case because "factual disputes preclude resolution of whether Halpin is entitled to qualified immunity. . . . The question of whether Halpin is entitled to qualified immunity is . . . not a pure question of law that can be decided on interlocutory appeal because it depends on resolution of a factual dispute: whether the proposed revisions [to Brown's memo on proper operation of the program] were false." The Court (Calabresi, Katzmann and Walker) also says the interlocutory appeal is inappropriate because factual considerations govern whether Brown spoke pursuant to her duties. In fact, the Court says, "Brown's written job responsibilities are sufficiently ambiguous that we cannot resolve this dispute on appeal."

So this is sort of a way around Garcetti, although mostly on procedural grounds since the facts are disputed and the Court of Appeals cannot definitively resolve this dispute. But I say sort of a victory since most employee speech cases die on the vine without this analysis. Brown's case returns to the district court for discovery. 

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