Wednesday, October 22, 2014

County employee's speech before Legislature not protected by First Amendment

In 1991, the Second Circuit held that a high-ranking New York City employee could not be fired in retaliation for giving subpoenaed testimony before a State Assembly Committee about the validity of civil service tests for police officers. In that case, Piesco v. City of New York, the Court said that you cannot fire someone over this because the testimony was on a matter of public concern and the Legislature cannot function without input from informed members of the public. Is Piesco still good law? Maybe not.

The case is Williams v. County of Nassau, a summary order decided on October 21. (I represented the plaintiff on appeal). Piesco provides an extensive discussion about the value of "public concern" speech in a legislative forum that requires candid feedback from the public. But in 2006, the Supreme Court ruled in Garcetti v. Ceballos that employees who speak pursuant to their official job duties have no First Amendment right against retaliation because they do not engage in citizen speech but unprotected employee speech that can get you fired in an at-will state like New York (and most of the rest of the country).

How do we square Garcetti with Piesco? The plaintiff in this case was the Executive Director of the Nassau County Civil Service Commission. He had heard that the County Legislature had received inaccurate information about a civil service matter. So he showed up at a legislative session to set the record straight. Plaintiff was then fired. He argues that he was fired in retaliation for publicly embarrassing the County Executive. Citing Piesco, Williams argued that his termination violated the First Amendment because, like Piesco, he addressed a public body on a matter of public concern. The Court of Appeals (Wesley, Straub and Livingston) disagrees.

The Second Circuit does not address the Piesco precedent. It instead applies Garcetti and Weintraub v. Board of Education, the Court's leading Garcetti precedent, which says that employee speech is not protected under the First Amendment if it is "part and parcel" of the plaintiff's ability to perform his job. As the Second Circuit sees it, even speech like this before a County Legislature is not citizen speech and is therefore unprotected. The Court reasons:

Because Williams spoke before the Nassau County Legislature not “as a citizen on a matter of public concern,” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), but rather “pursuant to his official duties” as defined by this Court in Weintraub v. Board of Education, 593 F.3d 196, 203 (2d Cir. 2010), we hold that Williams’s speech is not protected by the First Amendment and affirm the district court’s grant of summary judgment.
So here's the question: a public supervisor is asked to provide information to a Town or Village Board or the County Legislature. Or he wants to provide information on his own. He expresses concern about retaliation if he speaks on a controversial matter that derives from his employment. The public interest is served if he addresses the public body. But his employer could legally fire him if he says the wrong thing. What advice do you give him?

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