Wednesday, June 9, 2010

The First Amendment ain't what it used to be

The old gray mare ain't what she used to be, and neither is the First Amendment, at least when it comes to the speech of public employees. A few years ago, Joseph Paola would have a case for retaliatory treatment under the First Amendment. Not anymore.

The case is Paola v. Spada, a summary order decided on April 16. Paola was a Connecticut State Trooper assigned to the Office of the Fire Marshall. He made oral and written complaints to Internal Affairs about his supervisor's alleged mismanagement and potential unlawful conduct. The general rule is that public employees cannot suffer retaliation for speaking out on matters of public concern, broadly interpreted by the courts to mean any matter of interest to the public, and not merely a personal grievance. Now, prior to 2006, the Second Circuit certainly would have held that Paola's complaints were matters of public concern. Any number of cases held that mismanagement and potentially unlawful conduct at a public institution (a law enforcement agency in particular) touched upon a matter of public concern.

In 2006, the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006), that speech pursuant to your official duties is not public concern speech but, instead, unprotected work speech, entitled to no greater constitutional protection than water cooler talk about the Yankees.

How does this affect Paola's case? It was dismissed by the district court, and the Court of Appeals affirms that dismissal. The decision does not tell us what happened to Paola (demoted or fired or something else) but whatever happened to him is not unconstitutional. According to the Court of Appeals (Cabranes, Raggi and Hall), this is because "the record contains much evidence that state troopers must report potential wrongdoing either up the chain of command or to an Internal Affairs officer." The employee manual says so. "Moreover, a state trooper captain stated in his affidavit that 'it is understood among sworn officers ... that a trooper is required to report wrongdoing of a fellow officer to chain of command or Internal Affairs." Since Paola reported misconduct and potential illegalities to Internal Affairs, he did not engage in First Amendment speech. I don't know what happened to Paola, but whatever happened to him as a result of that whistleblowing, it was legal under Garcetti.

1 comment:

Bullhorner said...

ok so Paola,(sp) by following the procedure in the policy was not making a comment or complaint as an individual or by his own desire - but only because he was merely following the policy?

So, he has no protection?

If he has to follow procedure and report and can be fired for reporting that seems like something I would attempt to appeal if there is anywhere else to go with it.

Otherwise, the safest thing is to not go looking for anything wrong because it would be YOU who gets the severe punishment in the end no matter what the outcome is.

Am I missing it?