Another Garcetti free speech case is dismissed

In this First Amendment case brought against the County of Rockland, a former police officer who taught courses at the County Police Academy claimed he was terminated from his position after he blew the whistle on the Academy's director, claiming the director violated state requirements by using uncertified instructors, submitting inaccurate course materials to the state agency (DCJS) that supervises courses like this, and omitting state-mandated content from courses. He loses the case.

The case is Brook v. County of Rockland, a summary order issued on October 11. Everyone loves a good whistleblower, and whistleblowing can be a form of First Amendment speech. But public employees and those who contract with public agencies have limited rights. If they speak pursuant to their job duties, there is no speech claim, as the courts regard that speech as work speech and not citizen speech. That's the Garcetti rule, named after a 2006 Supreme Court case that scaled back these claims; prior to Garcetti, all the plaintiff had to show was that he spoke on a matter of public concern and got the axe for it. 

Plaintiff loses, the Court of Appeals (Lee, Bianco and Jacobs) says, because his various complaints were "part and parcel" of his concerns about his ability to perform his work as an instructor. The part-and-parcel language derives from a Second Circuit ruling, Weintraub v. Board of Education (2010), which in my view broadened the Garcetti rule. Weintraub kills plaintiff's case. Here is how the Court sees it:

Plaintiffs argue that, because Brooke’s complaints concerned [director] Heubeck’s violations in connection with courses that were outside of the Basic School program, Brooke did not speak pursuant to his official duties as the Basic School Coordinator. However, as part of his duties, Brooke sought the DCJS approval of at least one other course outside of the Basic School program. Additionally, as the Basic School Coordinator, Brooke was required to instruct in “all academy programs as assigned by [Heubeck],” not only in the Basic School courses. For example, Brooke previously taught the Defense Tactic Instructor course, which was one of the subjects of his complaints, and learned about the inaccuracies in Heubeck’s DCJS submissions for the course after Heubeck asked him to serve as an instructor and put Brooke’s name on the curriculum. Therefore, when Brooke reported that the Defensive Tactics Instructor course did not meet the DCJS requirements, he was again raising concerns about his ability to execute his official duties as an instructor and comply with the state-mandated course requirements as the Basic School Coordinator.

From this angle, plaintiff spoke pursuant to his job duties. Yes, he was simply an instructor. But Garcetti advances a broad rule, and Weintraub broadens even that rule. Under this framework, there is not much a public employee can say that will be protected under the First Amendment, at least in my experience. Since 2010, the Court of Appeals has sustained only a few cases involving public employee First Amendment retaliation. Plaintiff may have been righteous, and perhaps his claim would have prevailed under Article 78 in state court (which does not require the plaintiff to navigate Garcetti and Weintraub), but the First Amendment will not provide any relief.