Continue to Test
In our 2010 MCLE article on "Public Employees and Free Speech," we discussed how difficult it was to determine whether speech by public employees was or was not protected by the First Amendment. That difficulty was summarized by the Ninth Circuit when it aptly observed that for decades this area of law "has evolved dramatically, if sometimes inconsistently." See Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
The challenges in this area are not only difficult because the law is complex, but also because the factual contexts vary greatly and rarely fit any pattern.
Examples discussed in this article include the following:
•police officers who complain that other officers are abusing criminal suspects and/or about departmental safety concerns;
•a police officer who leads a no-confidence vote against the Chief of Police;
•a middle school teacher who complains about the "mainstreaming" of special education students;
•a water department superintendent who agrees to testify in a former employee's lawsuit against the city; and
•a county attorney who speaks to the press negatively about her client's decision to settle a case.
Are these public employees entitled to the protections of the First Amendment? Or are their public entity employers able to discipline them for their actions without violating their constitutional rights? The answers vary. In the eight Ninth Circuit cases discussed below, four decisions find the speech protected and four find it not protected.
The First Amendment and state constitutions, such as California's, give persons in the United States substantial rights to freedom of expression. For public employees, however, those rights are diminished when it comes to asserting free speech rights against the Government as their own employer. Stated another way: when individuals enter the Government workplace as employees, they surrender many of their First Amendment rights.
The United States Supreme Court has analyzed this very issue. Garcetti v. Ceballos, 547 U.S. 410 (2006), is probably the most important public employee free speech decision on the books, and it naturally sets the legal standard for almost all of the cases that follow.
In Garcetti, the Supreme Court explained: "When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." The employee does, however, retain the "right . . . to speak as a citizen addressing matters of public concern." Garcetti, 547 U.S. at 417-18.
In light of these considerations, judges must balance several factors when confronting a free speech case involving a public employee. The following is a summary of the test the nation's high court has developed for determining when an employee has a First Amendment claim. First Amendment protection attaches if:
1.The speech is a matter of "public concern";
2.The employee spoke as a private citizen and not a public employee (i.e., speech is not pursuant to "official duties"); and
3.The employee's speech interest outweighs the agency's interest in efficiency and effectiveness.
The second of the items listed above--the "official duties" inquiry--is probably the least intuitive of the three-part test. It requires courts to answer the somewhat abstract question of whether the employee has spoken as a private citizen or as a public employee. How courts have attempted to answer that inquiry is the focus of this article.
In Garcetti, a deputy District Attorney responsible for being a calendar deputy questioned a search warrant that had been issued in the City of Los Angeles. He complained to his supervisors, but they ultimately did not act on his complaint. The deputy DA was later given a different assignment, and he argued that this transfer was in retaliation for his speaking out concerning the search warrant. Garcetti, 547 U.S. at 413-17.
The Supreme Court found that he could assert no First Amendment retaliation claim because his speech in complaining about the search warrant had been uttered in his capacity as a county employee, i.e., pursuant to his "official duties." The key for the Supreme Court was that part of this deputy DA's job had in fact been to evaluate whether search warrants were supported by probable cause, and then report back to his office about what he had found. His speech was part of his simply doing what he was paid to do. Therefore, the Court found he could be disciplined without violating his First Amendment rights. Garcetti, 547 U.S. at 420-24.
Law Enforcement and Whistleblowing
Seven years after Garcetti, the Ninth Circuit issued a landmark decision interpreting the "official duties" element of the Garcetti test. See Dahlia v. Rodriguez 735 F.3d 1060 (9th Cir. 2013). The case began in the specific context of law enforcement, but the Ninth Circuit's holding extends more broadly, and ultimately stands for the proposition that traditional whistleblowing (according to the Ninth Circuit's definition) is going to be outside official duties--it will potentially be protected by the First Amendment. This is true even if pointing out wrongdoing is part of the employee's job.
The Dahlia decision begins with a review of a prior Ninth Circuit case entitled Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009). Officer Huppert reported misconduct by one of his own sergeants to his superiors. In addition, he also worked with the County District Attorney and the F.B.I. to uncover corruption in the City police department. The Ninth Circuit held that peace officers in California inherently have, as part of their "official duties," the duty to report illegal conduct by anyone, including their own colleagues and superiors. Given that duty, the court determined that Huppert had spoken as part of his job and could be subject to discipline without violating his constitutional rights.
In the Dahlia case, however, the Ninth Circuit overturned its prior decision in Huppert.
In Dahlia, the officer had engaged in conduct similar to that of Officer Huppert. Officer Dahlia had complained that other officers were abusing suspects and criminal defendants. With the Ninth Circuit sitting en banc--as an 11-member panel capable of changing prior circuit precedent--the Dahlia court expressly overturned its Huppert precedent despite the factual similarities between the two cases. It did so on the basis that Huppert had developed a bright-line rule that relied on a generic description of "official duties" rather than a fact-based inquiry as contemplated by the Supreme Court in Garcetii.
In rejecting Huppert, the Dahlia decision instead requires closer evaluation of the facts of the particular case in order to determine an employee's "official duties." The en banc opinion offers some explicit guidelines for doing that.
Chain of Command
First, "whether the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties." Dahlia, 735 F.3d at 1074.
Second, the subject matter of the speech at issue is highly relevant. "When an employee prepares a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence, the employee's preparation of that report is typically within his job duties." Id. at 1074-75.
On the other hand, "if a public employee raises within the department broad concerns about corruption or systemic abuse, it is unlikely that such complaints can reasonably be classified as being within the job duties of an average public employee," unless the "employee works for Internal Affairs or another such watchdog unit." Id. at 1075.
Not Following Orders
Third, the Court described: "[W]e conclude that when a public employee speaks in direct contravention to his supervisor's orders, that speech may often fall outside of the speaker's professional duties. Indeed, the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a 'practical' matter, within the employee's job duties notwithstanding any suggestions to the contrary in the employee's formal job description." Id. at 1075.
The Dahlia Court went on to apply these considerations to analyze the actions of Officer Dahlia, who had complained about alleged abusive interrogation tactics by his police department colleagues. He had presented his concerns to department Internal Affairs officers, to his union, and ultimately to the Los Angeles Sheriff's Department. The Ninth Circuit determined that his actions were outside the scope of his job and not part of his "official duties." Therefore, he had stated a claim for First Amendment retaliation and was entitled to pursue his claim for damages.
Reporting Safety Concerns Internally
A few months after Dahlia, the Ninth Circuit deciced Hagen v. City of Eugene, 736 F.3d 1251 (9th Cir. 2013). In some ways, the Hagen decision appeared to be a return to at least the spirit of the discarded Huppert ruling.
The Hagen case involved an Oregon police officer. The court concluded that he did not speak as a private citizen when he aired concerns about work-related safety issues internally up the chain of command pursuant to job requirements. The reported problems included mention of repeated incidents of accidental discharge of firearms by officers.
Hagen filed a retaliation lawsuit alleging management violated his First Amendment rights by taking adverse action against him after he raised concerns about the safety issues. The Ninth Circuit determined that since Hagen's job required such safety reporting, his raising the concerns was pursuant to "official duties." The court reasoned: "Where, as here, a public employee reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so, that employee does not speak as a private citizen and is not entitled to First Amendment protection." Hagen, 736 F.3d at 1254. The court observed more than once that Officer Hagen had only reported his concerns to his superiors and not to an outside entity, a fact which undoubtedly influenced the outcome.
Speaking for the Union
In Ellins v. Sierra Madre, 710 F.3d 1049 (9th Cir. 2013), the Ninth Circuit issued another decision on the issue of speech by a police officer. The Ellins decision describes public employee protected free speech in the context of labor-management relations.
The court determined that a city police officer who served as union president could state a First Amendment retaliation claim based on his union-related speech. The speech at issue included the employee successfully leading a vote of "no confidence" against his Police Chief, and his union's issuing press releases about the vote that criticized the Chief's management style. The plaintiff argued that a subsequent delay in his receiving authorization for a 5% pay increase amounted to retaliation for his engaging in these speech activities. The Ninth Circuit agreed.
After determining that Ellins' speech was a matter of public concern, the court addressed the issue of "official duties." It decided that the speech was not part of those duties, observing the Ellins was speaking more as a private citizen when he spoke on behalf of the union. Previously, public employers had argued in these types of cases that a public employee's speech on behalf of his or her union was speech as a government employee directly related to work for the employer. The Ellins court rejected this argument, finding that speech on behalf of a union was "at odds" with management and thus not pursuant to "official duties." The court concluded as follows: "Given the inherent institutional conflict of interest between an employer and its employees' union, we conclude that a police officer does not act in furtherance of his public duties when speaking as a representative of the police union." Ellins, 710 F.3d at 1060.
More recently, in a case involving a disgruntled school teacher, the Ninth Circuit took a somewhat narrow approach to what speech is protected, similar to the view expressed in Hagen, supra. See Coomes v. Edmonds School District No. 15, 816 F.3d 1255 (9th Cir. 2016).
In Coomes, the plaintiff worked as the manager of a middle school's emotional / behavioral disorders (EBD) program and was the primary teacher for the program's students. Coomes complained that she believed that some of her students who were ready for "mainstream" classes were not being allowed into those classes early enough. Later, she lodged a somewhat contrary complaint when she contended that students should remain longer in EBD classes. The teacher described her speech as relating to two topics--the "illegal and improper treatment of vulnerable students in the public school system," and "bullying and harassment by [school] administrators in retaliation for taking a stand." Coomes, 816 F.3d at 1262.
Clearly the content of Coomes's speech was "at odds" with management, a factor discussed in the earlier Ellins decision. However, in Ellins the fact that the speech was at odds with management helped lead the Court to conclude that the speech was protected. In Coomes, the determination was that it was not protected.
Plaintiff Coomes voiced her complaint both up the "chain of command" at the school district and then separately to parents. Thereafter, she received negative reviews of her job performance and she contended that those evaluations constituted retaliation for her voicing her concerns and therefore were a violation of her First Amendment rights.
The Ninth Circuit considered the fact that there were two audiences to whom the teacher had directed her complaints--one inside and one outside the school district. Her complaints up the "chain of command" were part of her "official duties" since she was a manager of the EBD program. Interestingly, the court found that her discussing of complaints with parents was also "part and parcel" of her job as an educator, and accordingly all of the questioned speech was part of Coomes's "official duties." Thus, her speech lacked First Amendment protection and her discipline was not retaliation for protected activity.
Testifying in Court
In Stilwell v. City of Williams, 831 F.3d 1234 (9th Cir. 2016), the Ninth Circuit addressed the issue of public employee speech in the context of court testimony. Plaintiff Stilwell was the superintendent of a city water department. He indicated he would testify in an age discrimination lawsuit filed by a former human resources director against the city. Clearly his testimony would be "at odds" with city management. Testifying in court would also be outside his "official duties," as his testimony would be provided to an outside entity (i.e., the trial court in the discrimination case).
When city management learned of Stilwell's anticipated testimony, the interim city manager specifically warned him against testifying. Stillwell alleged that his job performance thereafter was repeatedly criticized by management and he was ultimately terminated before he could actually testify.
The Ninth Circuit found that Stilwell's speech was protected.
In acknowledging First Amendment protection for an employee's providing testimony in a lawsuit, the Ninth Circuit's Stilwell case relies on the U.S. Supreme Court decision Lane v. Franks, 134 S. Ct. 2369 (2014). In Lane, the Court held that the First Amendment protects a public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope of his or her ordinary job responsibilities. The Ninth Circuit had little trouble applying this Supreme Court precedent in finding Stilwell's speech was protected.
Technological developments since our 2010 article have now created a new context in which courts have to deal with public employee speech. The increasing use of social media now appears nearly universal among public sector workers. Employees increasingly express opinions via email, Facebook, and blog postings and on Twitter, just to cite three outlets among many that exist.
As a general proposition, just because expression takes place on the Internet does not mean the legal analysis is any different. To have First Amendment protection, a public employee's digital speech must still satisfy the three elements of the general balancing test articulated in Garcetti.
Not surprisingly, the Ninth Circuit has dealt with this context, albeit in an indirect way. In Naffe v. Frey, 789 F.3d 1030 (9th Cir. 2015), the court addressed the issue of a public employee utilizing social media to address political issues. The Ninth Circuit concluded that the employee's speech on social media was not made as part of his job. The issue arose in a lawsuit brought by a third party, rather than in the context of possible discipline of the employee for his speech.
In Naffe, a county deputy district attorney (Frey) maintained a political blog that contained his name and "references" to his job title. He became embroiled in an ongoing digital battle with another political commentator (Naffe) and allegedly used his blog and Twitter account to make "threatening and harassing statements" about her. Naffe sued Frey and the county and alleged that Frey's statements were made "under color of state law."
Plaintiff Naffe cited several facts to support her contention, including Frey's disclosure of his deputy district attorney position in his tweets and blog postings. She also cited Frey's reference in a tweet to his intention of "learning what criminal statutes, if any" she had "admitted violating." She contended that this evidence established that Frey was issuing statements in his role as a deputy district attorney.
The Ninth Circuit cited Garcetti and concluded that Frey was speaking for himself as a private citizen, not as part of his "official duties" as a county employee. The court pointed out that Frey posted and tweeted late at night and early in the morning, refuting the plaintiff's contention that he was doing so during normal working hours.
The court also cited Frey's use of a personal Twitter account, rather than the official District Attorney account. Finally, the court relied on the disclaimers Frey included on his blog and his Twitter account that the views expressed were "personal opinions" and "not in an official capacity" and that the opinions did "not represent the opinions of the author's employer."
These facts were sufficient to convince the Court that Frey was not speaking as part of his official duties, but instead was speaking as a private citizen.
Speaking to the Press
In its most recent decision in the area of public employee speech, the Ninth Circuit has found that a county attorney is not entitled to First Amendment protection for statements she made to the press. See Brandon v. Maricopa County, 2017 WL 710474 (9th Cir. Feb. 23, 2017).
In Brandon, the plaintiff was a civil attorney employed by the county. She received a telephone call from a newspaper about a case she had been handling for the county Sheriff's Department. She was quoted in a later article that suggested the county substantially increased its offers to settle to avoid the difficulty of having certain county officials testify. The county deemed Brandon's statements unprofessional and showing bad judgment. Brandon was terminated from employment. She sued for violation of her First Amendment rights. A jury awarded her nearly $1 million in damages and attorneys' fees.
The county employer appealed and the Ninth Circuit reversed the trial court and set aside the jury verdict. The court relied on Garcetti and Dahlia to conclude that the lower court had failed to make the "practical inquiry" required by the earlier cases. The three-judge appellate panel emphasized that Brandon's job as a county attorney included a broad set of "official duties." Those duties included a fiduciary duty to avoid making comments publicly that would reflect negatively on Brandon's client. Since she had spoken as part of her representation of her employer, not as a private citizen, Brandon's speech was not protected and she could be disciplined.
Where Do We Go From Here?
This article has focused on how the Ninth Circuit has addressed the issue of whether a public employee's speech has First Amendment protection, with a special emphasis on the question of "official duties."
In deciding whether an employee has spoken as a government employee or as a private citizen, the court has frequently identified the following two factors as significant:
•whether the employee spoke internally or to an outside entity; and
•whether the content of the speech was "at odds" with management.
Applying these two factors to determine whether particular speech occurred as part of an employee's "official duties" depends on the factual context in which the speech occurs. It remains to be seen whether the U.S. Supreme Court, in an appropriate case, will provide more guidance on the application of its Garcetti decision.
In the meantime, we can fairly say that the Ninth Circuit's earlier characterization continues to be accurate; namely, that the law in this area has "evolved dramatically, if somewhat inconsistently." Eng v. Cooley, supra, 559 F.3d at 1070.
Richard Whitmore (San Francisco) and David Urban (Los Angeles) are attorneys with Liebert Cassidy Whitmore, which represents public-agency management.