I. 3 Categories of Public Employee Speech in First Amendment
Cases
a. Sometimes Protected: Speech as a Citizen on Matters of Public Concern
When a public employee speaks as a citizen on matter of public concern, his speech is protected by the 1st Amendment, unless employer can show that it had an “adequate justification” for treating the employee differently. Garcetti v. Ceballos, 126 S. Ct. 1951, 1958 (2006) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).
i. “Adequate justification” means balancing:
1. Means a “balance between the interest of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the [s]tate, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 569.
b. Not Protected: Speech as an Employee
When a public employee speaks pursuant to official duties, that speech is not protected.
i. Requires case-by-case analysis and an in depth review of the employee’s job description. See Garcetti.
c. Not Protected: Speech on Matters that are Not of Public Concern
When a public employee speaks about matters that are not of public concern, regardless of whether or not he speaks in his capacity as an employee or a private citizen, that speech is not protected.
i. Court will look at “content, form, and context of a given statement, as revealed by the record as a whole” to determine whether something is of public concern. Connick v. Myers, 461 U.S. 138, 147 (1983).
ii. “Public concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Id.
iii. City prosecutor’s inner office questionnaire soliciting views from co-workers regarding work policies and confidence in supervisors was not of public concern. Speech was merely continuation of a transfer dispute between employee and his supervisor. Connick, 461 U.S. at 148.
II. The Employer’s Defense: Established in Garcetti v. Ceballos, 547 U.S. 410 (2006).
a. Facts: Ceballos, a deputy district attorney in Los Angeles, reviewed facts in an affidavit submitted by Sheriff’s Department. He believed there were serious misrepresentations in the affidavit which undermined a critical warrant obtained by the Sheriff’s Department in an investigation.. Ceballos wrote a memo recommending dismissal of the case and testified in a court hearing. Ceballos believed that his employer subsequently retaliated against him by transferring him, demoting him in rank, and denying him a promotion.
b. Issue: Whether the First Amendment protects government employees from discipline based on speech made pursuant to their official duties?
c. Rule: No. The First Amendment does not protect public employees from discipline based speech about matters of public concern when it is made pursuant to their official duties. Public employees can be disciplined for statements made pursuant to their official duties under the First Amendment.
d. Implications for Public Employers:
i. Such employees likely have no First
Amendment claim, but may still seek recourse in other forums such as
union grievance procedures or state/federal whistleblower laws.
ii. Employers amended job descriptions to inclusion of more duties in the job description as a way to exclude more categories of speech from First Amendment claims.
III. Speech pursuant to “Official Duties” v. Speech as a “Citizen”
a. Citizen: In Pickering v. Bd. of Educ. a teacher’s letter to the editor of local newspaper was held to be speech as a “citizen.”
i. Lesson: Employees should make these statements outside of the official channels of communication regarding employment related problems and issues.
b. Official Duties: Case-by-case/Fact based inquiry.
i. Cases applying defense and dismissing employee claims
ii. Cases rejecting defense and not dismissing employee claims
IV. Recommendations:
a. Amend job descriptions of employees
b. Adopt a written employee reporting policy requiring any issues or problems to be reported to supervisor. This will serve to “guide” employee speech into these channels of communication which may be deemed part of the employee’s job duties by a reviewing court.
Prepared by: Zukowski Law Offices, © 2009
Note: These general suggestions are for general informational
purposes only and should not be regarded as a substitute for specific
legal advice to your District. Instead, administrators should
consult with legal counsel whenever any question arises as to the
District’s responsibility or the rights of any parent or student.