Another case falls into the Garcetti graveyard

It's been a while since the Second Circuit has resolved a case involving public employee whistleblowing. These cases have dried up somewhat as the courts have broadly applied the Supreme Court's ruling in Garcetti v. Ceballos (2006) that says it's not free speech if the public employee speaks as an employee and not as a citizen. This distinction kills the case when the speech is pursuant to his official job duties. A lot of cases fall into the Garcetti graveyard. This one does, also.

The case is Waronker v. Hempstead Union Free School District, a summary order issued on October 17. Plaintiff was a highly-accomplished educator who became superintendent at the troubled school district in Hempstead, Long Island. According to the complaint, plaintiff began undertaking various reform efforts at the district, but he was met with resistance from within. That is when things took a turn for the worse for plaintiff. The Court of Appeals (Walker, Carney and Koeltl [D.J.]) writes that the district next fired "the Special Investigators who were looking at abuse, mismanagement and possible corruption,” prompting Waronker to send an email to the Board of Education advising that he had “consulted with several law enforcement agencies” about “matters [that] . . . appear to be both unlawful and unethical.”

Next thing you know, the Board suspended Waronker’s authority to act as superintendent. Plaintiff then distributed an open letter to the Hempstead community, urging members to “collaborate with me to make Hempstead Schools thrive again” and warned that “[p]olitics, self-interest[], patronage, vendettas, threats, and cover-ups cannot rule the day.” Four days later, the Board placed Waronker on paid administrative leave.

If you speak pursuant to your official job duties, it's not free speech under the First Amendment. If you speak as a citizen, it is protected speech. That's Garcetti in a nutshell. So if the school district's comptroller announced that someone is stealing money from the district, that's not First Amendment speech, because it's the comptroller's job to say so. If the comptroller is fired because of his "Impeach Trump" bumper sticker, that's free speech because he's speaking as a citizen and that kind of political speech is not part of his job description. This may sound unfair to you, but that's what the Supreme Court said in 2006.

Plaintiff loses the case because the community letter was not free speech, it was work speech. The Court of Appeals reasons:

Waronker does not plausibly allege that he was speaking as a citizen when he publicly accused the School District of corruption. The complaint makes clear that “root[ing] out [] corruption and mismanagement” was “part-and-parcel” of Waronker’s daily responsibilities as superintendent, even if, as Waronker claims on appeal, it was not part of his formal job description. Waronker’s factual allegations further make evident that he sent the Board Email and Community Letter pursuant to his official employment responsibilities. Not only do both of these communications focus on Waronker’s efforts as superintendent to reform the School District, but Waronker signed the Board Email using his official job title, “Superintendent of Schools,” and he posted the Community Letter on the School District’s website.

Nor is plaintiff's communications with the law enforcement agencies (as referenced in the Board email) protected by the First Amendment. "Nothing in the complaint suggests that he consulted with
these agencies as a private citizen. Instead, as he explains in the Board Email, Waronker felt 'compelled' to contact law enforcement because (1) the Board failed to take 'corrective action' after Waronker 'rais[ed] questions about suspected illegal financial activity,' and (2) Waronker had '[a] professional, moral and legal obligation to serve the District.' Waronker therefore framed his consultations with law enforcement as 'a means to fulfill, and undertaken in the course of performing, his primary employment responsibilit[ies].'”

What it all means is that for someone like plaintiff, a good deal of what he has to say about the district may be deemed unprotected speech because it will in some way deal with the school district. As superintendent, plaintiff was the king of the district. That's a loophole in First Amendment retaliation jurisprudence that the courts have not found a way to correct.