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Bar Journal - Fall 2007

Public Employees and Constitutional Free Speech: Maybe a Little Less Free?
New Hampshire Supreme Court Appears to Say No


By:


At the turn of the 20th century, when confronted with the issue of whether public employees had a constitutional right to speak out on public issues, courts resoundingly answered in the negative. For example, while serving on the Massachusetts Supreme Judicial Court in 1892, Justice Holmes wrote these famous words, “There may be a constitutional right to talk politics, but there is no constitutional right to be a policeman.”1 As late as 1952, the United States Supreme Court, in the words of Justice Vinson, opined “If they (certain public employees) do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere.”2     

Since then, public employee free speech jurisprudence has evolved, with the United States Supreme Court formally recognizing a public employee’s right to speak as a citizen on matters of public concern balanced against the employer’s concern for promoting the efficiency of public services it provides through its employees.3  In May 2006, the United States Supreme Court’s ruling  in Garcetti v. Ceballos4  “clarified” when public employee speech is protected by stating that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens” and “the Constitution does not insulate their communication from employer discipline.”5 

     

Depending on the source of the critique, Garcetti is perceived as either eliminating First Amendment protection for public employees or as merely further clarifying Pickering and its offspring. Recently, the New Hampshire Supreme Court in a case entitled Snelling v. City of Claremont6 appears to have cast its lot with the latter view by ruling that a terminated city assessor’s right of free speech was violated by a termination made, at least in part, in retaliation for comments made to a newspaper about the fairness of the city’s tax system and allegations of city council members taking unfair, but not illegal, advantage of the tax abatement system. The New Hampshire Court’s view appears to fall in line with the general tenor of decisions applying Garcetti, particularly at the federal circuit court level, several of which are summarized below.

     

Before addressing Snelling, a brief look into the development of public employee free speech is appropriate to set the stage to assess the impact of both this case and Garcetti and to look toward the future of public employment free speech.

 

Foundations of Public Employee Speech Rights

State and federal Constitutional protections arising under their respective Bills of Rights seek to protect individuals from governmental excesses. Private employment, therefore, generally need not consider restrictions on an employer’s authority to control employee speech.7 With regard to the public sector, though, the United States Supreme Court cast a new light on public employee speech in cases arising from the efforts in the 1950s and 1960s to require public employees, particularly teachers, to swear loyalty oaths and reveal groups with which they associated. These cases ruled that the denial of, or placing conditions upon, a benefit or privilege associated with public employment could improperly infringe upon the liberties of speech, religion and assembly. In 1967, for example, the U.S. Supreme Court considered New York statutes that barred public employment based on membership in subversive organizations. Its opinion overturning those restrictions noted the apparently uniform judicial rejection of the theory that public employment could be subjected to any conditions, no matter how unreasonable, simply because a public employer might deny employment altogether.8

     

Thus, since at least 1967, it has been settled on the federal level that at least some forms of public employment cannot be conditioned by a governmental employer on a basis that infringes on an employee’s constitutionally protected interest in freedom of expression. That concept received a more general formulation in Pickering v. Board of Education,9 which in turn was refined in Connick v. Meyers.10 

   In Pickering, we stated that a public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment. We also recognized that the State’s interests as an employer in regulating the speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem . . . was arriving at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.11

Over time, a common formulation for expressing the public employee speech rights came to be known as the Pickering/Connick balancing test which might be stated along the following lines:

A governmental employee may speak as a citizen on matters of public concern if the interest of the employee in commenting on the matter outweighs the interest of the governmental employer in promoting the efficiency of the services it delivers through its employees.

Put another way, just as a public employee does not abandon all First Amendment rights by accepting public employment, a public employer retains a degree of authority and control as an employer. In addition to these primary opinions establishing public employee free speech rights, a number of decisions were issued that refined those rights:

1977:  Mt. Healthy City Board of Ed. v. Doyle, 429 U.S. 274 – Confirmed that employers may use a defense based on non-speech-related employee record.

1979:  Givhan v. School District, 439 U.S. 410 – First Amendment protects covered employee speech even if expressed privately and not broadcast publicly.

1976 & 1980:  Branti v. Finkel, 445 U.S. 507;  Elrod v. Burns, 427 U.S. 347– First Amendment protections do not apply to political, confidential, or policy-making positions.

1987:  Rankin v. McPherson, 438 U.S. 378 – Employee speech may be cause for employment action if it has a detrimental impact on the work environment.

 

Public Employee Speech Made as Part of the Employee’s Official Duties

From 1968 through 2006 federal circuit courts continued to shape public employee speech within the general confines of the Pickering-Connick balancing test and its offspring, with the general scope of the doctrine remaining intact. The United States Supreme Court reentered the public employee speech arena on May 30, 2006, with its Garcetti ruling. With the benefit of the passage of a year, it seems safe to summarize the case as standing for the following general principles:

 

1.   When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

2.   Two inquiries guide interpretation of the Constitutional protections accorded public employee speech: 

      (a) Determine if the employee speaks as a citizen on a matter of public concern.

      (b) If so, then determine if the government employer has adequate justification for treating the employee differently from any other members of the general public.

3.   The First Amendment does not prohibit managerial discipline based on an employee’s expressions made pursuant to official responsibilities.

 

As is common at the U.S. Supreme Court today, the opinion was not unanimous but was decided by a narrow 5-4 vote. The majority opinion, written by Justice Kennedy, characterizes its ruling as being consistent with the Pickering and Connick precedents, which he characterized as distinguishing between a public employee speaking as a citizen and as an employee. The dissenting opinions of Justices Stevens and Souter assert that the notion that there is a difference between speaking as a citizen and speaking in the course of one’s employment is erroneous.

 

While Garcetti creates a dividing line between protected and unprotected speech, the parties agreed that the statements at issue were in fact made as part of the employee’s official duties.12 Thus, the “Court had no occasion to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious doubt.”13 

     

The Seventh Circuit Court decision which is the source of the preceding comment decided, inter alia, the character of a Milwaukee police officer’s conversation about a superior’s actions (alleged harboring of a suspect) with an assistant district attorney (speech within official duties) in contrast to similar comments made during a deposition in a civil suit (not encompassed within official duties). The court addressed its dilemma in deciding if speech is official based on the identity of the listener, recognizing the:

. . . oddity of a constitutional ruling in which speech said to one individual may be protected under the First Amendment, while precisely the same speech said to another individual is not protected. Indeed, this is exactly the concern that Justice Stevens voiced in his dissent in Garcetti: “[I]t is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description.” 126 S.Ct. at 1963. . . Despite Justice Stevens’ admonishment, Garcetti established just such a framework, and we are obliged to apply it.14

In essence, the two sides in Garcetti agree on Free Speech protections at the outer ends of the spectrum of First Amendment protections. At one end, open speech by a private citizen on a matter of public importance lies at the heart of expression subject to protection. At the other extreme, a government employee’s statement about nothing beyond treatment under personnel rules raises no greater claim to constitutional protection against retaliatory response than the remarks of a private employee. As the Seventh Circuit noted, the “purpose of Garcetti was to allow government employers greater influence over speech that owes its existence to a public employer’s professional responsibilities and that is damaging to the government’s capacity to conduct public business.”15

According to the Garcetti majority, its conclusion results from the concept that Ceballos’ speech was part of what his job required. “Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”  In effect, an employer’s response to statements made as part of official duties equates to employer evaluation of the employee’s performance. Even with this restriction, public employees are not prevented from participating in public debate. That right to participate in public discourse, however, does not free employees to perform their jobs however they see fit. Consistent with rulings in other areas, the Court also was concerned with judicial intervention.  To adopt a view that the courts could intervene in matters like Ceballos’ complaint would commit state and federal courts to a “new, permanent and intrusive role, mandating judicial oversight of communications between and among government employees and their supervisors in the course of official business,” resulting in a displacement of managerial discretion by judicial supervision.

 

New Hampshire Applies the Official Duties Concept

On July 18, 2007, the New Hampshire Supreme Court released its decision in Snelling v. City of Claremont.16 The plaintiff, Claremont’s city assessor, claimed he was wrongfully terminated in violation of his First Amendment rights.

     

Prior to being appointed city assessor in the spring of 2000, Snelling worked for the city as a contract assessor for a number of years. Early in his tenure as an employee, he served on the city’s tax increment finance committee but abruptly resigned from the committee in July. His testimony to the city zoning board of adjustment on behalf of an acquaintance in opposition to the official position of his department appeared to have gained the interest of city officials.

     

That interest was intensified after he participated in a series of interviews in August 2000 with a local newspaper. In the resulting article, he was credited with “adding his voice” to others who claimed the city’s tax system was unfair or otherwise flawed. In the article he also indicated that certain city council members were taking unfair, but legal, advantage of the city’s tax abatement system. He also was referenced as commenting on some efforts made to correct the tax system’s inequities and his role, or proposed role, in those changes.

     

After meeting with the city solicitor, the city manager terminated the assessor’s employment, citing seven reasons, one of which concerned the comments in the newspaper article.17 The ensuing legal action resulted in jury verdicts for the plaintiff: $151,000 in past wages and benefits, $50,000 for mental and emotional distress, $151,200 in enhanced compensatory damages, and $3,780 in punitive damages. Two grounds upon which the city appealed were the assertions that (1) the assessor’s First Amendment claim was barred by Garcetti and (2) if the speech was not official speech, the Pickering balancing test weighed against his claim.18 

     

The court described its task in assessing a public employee’s retaliation claim for engaging in activity protected by the First Amendment as a three-step process:

      1. The employee must first demonstrate that the activity is protected. For this purpose, the employee must speak as a citizen on a matter of public concern. Then, it must be shown that the employee’s interest in the speech outweighs the government’s countervailing interest as employer in promoting the efficiency of the public services it provides through its employees (the Pickering balancing test). [These issues are questions of law.]

      2. If the employee passes the first test, the employee next must show that the protected activity was a substantial or motivating factor in the claimed retaliatory action by the employer.

      3. This assertion may be rebutted if the employer shows it would have reached the same decision absent the employee’s protected conduct. [Steps 2 and 3 are factual determinations.]

     

The court said that Garcetti focused on step 1 – whether the speech was delivered as a citizen on a matter of public concern, noting the justification that an employer has a “heightened” interest in controlling speech made by employees in their professional capacity.19 

     

In determining if the assessor was acting pursuant to employment duties, the court initially said job descriptions and listing of tasks therein as the sole analytical factor would allow employers to restrict employee rights by creating excessively broad descriptions.  Instead, the proper inquiry is a practical one as stated in Garcetti. With that in mind, the court rejected each of the city’s claims that Snelling was acting officially when he spoke with the newspaper reporter. The city claimed the article itself demonstrated that the reason for Snelling’s involvement was his position as assessor. In response, the court said the operative factor is the scope of the employee’s official job duties, not the perception or motivations which spur a third party to speak with the employee.

     

The city’s second argument asserted that the assessor’s job description placed Snelling as the city’s highest tax official and his duties required communicating with the public about local tax issues.  The court’s review of the specific aspects of the description was found not to support this claim, as only the only communication-related duty involved explanation of procedures and techniques the assessor’s office used in revaluation, abatements, and exemptions and the effect of new construction on assessed value. Thus, the court concluded, the assessor’s comments on fairness and potential abuses of the tax system are outside the scope of duties in the job description. Merely because a tax assessor speaks about tax issues does not mandate a conclusion that the speech was part of official duties.

     

The city’s final claim asserted that assessor himself testified at trial that he spoke with the reporter pursuant to his official duties.  In support of this argument, the city cited an exchange at trial between the assessor and his counsel:

 

Q.   . . . was it part of your job duties as an assessor to communicate to the public enough information about property evaluation that they could make an intelligent decision as to whether to apply for an abatement?

A.   Absolutely.

Q.   And in your opinion, did the article contribute to that goal?

A.   Yes, it did.

 

The court characterized this testimony as admitting that the article was part of his duties insofar as the article contributed to the goal of communicating with the public, but as not admitting that the expression of his opinions about the fairness of the tax system were included in his duties. The court then concluded that Snelling spoke with the reporter as a citizen and not pursuant to his official duties “regardless of the plaintiff’s understanding of the purpose of the article.”

     

Trying to analyze an article so as to separate statements made at least in part as official duties from statements made as a citizen on a matter of public concern, though, could be viewed as potentially leading the court into the realm of “judicial oversight of communications between and among government employees and their supervisors in the course of official business,” resulting in a displacement of managerial discretion by judicial supervision, a result to be avoided according to the majority view in Garcetti.

     

Having found that the speech was not made as part of official duties, the court discussed the three-step balancing test, finding first that Snelling indeed spoke on a matter of public concern. Speech can fairly be considered as touching on a matter of public concern when it relates to any matter of political, social or other concern to the community. Thus, the court concluded that Snelling spoke on a matter of public concern when he addressed fairness of the city’s tax system and possible abuses. 

     

The second prong of the balancing test as formulated by Court asks if the city had adequate justification for treating the employee differently from any other member of the general public. In turn, that is measured by the employee’s interest contrasted to the city’s interest in promoting the efficiency of the services it provides through its employees. Citing the public’s interest in unearthing governmental improprieties, the court said the “scale weighs heavily” in Snelling’s favor. Any self-motivated interest in making the statements was slight in contrast.

     

Turning to the city’s side of the scale, the court asked if the expression would: impair discipline by superiors or harmony with co-workers, impact close working relationships for which personal loyalty and confidence are necessary, or impede performance of the speaker’s duties or interfere with city’s operations.  Factors to consider in this analysis include the relationship between the employee and employer and the employee’s position in the organizational hierarchy.  An essential component is the need for the employer not just to claim an erosion of trust but to show “actual and significant harm.”20

     

The court appeared to discount the claimed subversion of trust and confidence between the assessor and the city manager, saying that the city could point to no other “disruptions in the working environment” or in the “functioning of city government” as a result of the article.   Moreover, the court said, the sole instance of “taking advantage” of the system mentioned by Snelling in the article referred to a city council member with whom Snelling had no direct working relationship. Thus, the manager’s loss of trust was the sole effect with which the court agreed and this did “not weigh heavily on the Pickering balance.”

     

The court then noted that the city had not challenged the final prongs of the balancing test – that the protected activity was a substantial or motivating factor and that termination would have occurred absent the protected speech.

     

As of the date of this writing, the city is contemplating a request for rehearing.

     

Before concluding this review of the current state of public employee First Amendment rights, it is appropriate to look briefly at some opinions issued by several federal circuit courts of appeal. This review is neither exhaustive nor scientific but is, instead, designed to demonstrate the manner in which some “official duties” speech cases have been handled.

 

A Limited and Selected Look at Some Post-Garcetti Decisions

Blackman v. NYC Transit Authority.21  Blackman, a NYC Transit Authority employee, challenged, as a violation of his First Amendment right of free speech, his dismissal for commenting that he thought two Transit Authority supervisors who had recently been murdered “deserved what they got” for getting another transit authority employee fired.  Blackman had worked for the Authority for 15 years and was an outspoken union advocate on numerous issues, including health and safety matters.

     

In December 2003, he raised concerns over safety of hydraulic jacks used by car inspectors and was dissatisfied with his supervisor’s (Perez) response. An argument ensued with escalating comment and Blackman was told to leave the workplace. He refused and told Perez, “I wish that some day I’ll read in the newspaper that something bad has happened to you and also to your kids.”  Perez again told him to leave and Blackman replied he was not leaving, as he had a Transit Authority pass “and a .38 and I’ll call my brother.”  Not sure if he really meant this as a threat, Perez just walked away. Blackman was not fired for this incident, but a disciplinary action notice recommending a 30-day suspension was filed which was then grieved. While the grievance was pending, a disgruntled authority employee who had been fired shot and killed two former supervisors. It was while employees were discussing this incident that Blackman said “I hate to say this, but those two guys deserve what they got for getting the (murderer) fired.”  When a co-employee asked what Blackman would do if he lost his livelihood, Blackman repeated his earlier comment, adding that “those two scumbags deserved what they got for getting the (employee) fired.”  Another disciplinary notice was filed recommending discharge. Blackman then filed legal action and the trial court granted the Authority’s motion for summary judgment finding that the comment was not protected speech.

     

The Circuit Court said a two-step analysis was required. (1) Is speech protected?  (2) If so, is the employee’s interest in free speech outweighed by government interest in efficiency of public services?  The Court assumed, for the sake of argument only, that the speech here was protected since Blackman was a vocal union spokesman and the root cause of at least some of his concern lay in safety issues. Instead, the Court emphasized the second issue – the effect of the speech, and noted that an employer’s ability to respond to speech is related, in part, to how much the employee’s speech truly relates to a public concern. Blackman’s speech, at most, only minimally touched on a public concern and the government’s burden in demonstrating a need to control the speech was at the lowest level. Here, the interest in disciplining Blackman was substantial:

 

     The comments, in light of the earlier threat to Perez, indicated that Blackman had a violent disposition;

     The comments were disruptive within the workplace.

     

Although decided in June of this year, it did not apply Garcetti’s official speech context.

     

Lindsey v. City of Orrick, MO.22 Lindsey was employed as the city’s Public Works Director. Though he owned land in the city, he was not a resident. The city sent him to training that included a session on open meetings law, after which he became convinced that the City Council was violating the law by improperly entering non-public sessions and passing ordinances without public discussion. He then raised these concerns at public meetings. After one council meeting, the city attorney told him that the procedures complied with the law. A council member told him that other councilors were angry because of his statements and “the best thing you could do is shut up.” 

     

A month later, he made similar accusations at another council meeting, after which Mayor Taylor (Lindsey’s direct supervisor and a co-defendant in the case) told Lindsey the open meeting law was none of his business and to think about his actions before he “embarrassed the city.”  Several months later, at another council meeting, Lindsey read from the law and urged the council not to violate it by going into closed session. Some months later, he identified 15 “violations” of the law. Mayor Taylor responded that the council considered the matter closed and Lindsey’s concerns were not placed on the council agenda. A year or so later, Lindsey again spoke with the mayor saying he had audio- and video-taped meetings and was going to meet with an assistant attorney general. Less than a month later, Lindsey was fired, after being presented with two handwritten critiques of his work. Lindsey asserted none of the concerns had been noted previously. One of the critiques asserted that Lindsey has “attacked the council” and had said the council was not “handling city business or ordinances properly.” 

     

Lindsey responded with a §1983 lawsuit alleging violation of his First Amendment right of free speech. The city and Mayor Taylor, as defendants, moved for summary judgment. The trial court denied the motion, finding that the speech was protected speech and that the mayor was not protected by “qualified immunity,” as a person in her position would know or should have known that firing him for the speech was illegal. The city and mayor appealed.

     

The circuit court said that Garcetti had “clarified” public employee First Amendment protection to apply only when an employee speaks as “a citizen addressing matters of public concern.”  First, the medium or location in which speech is made may not be the sole controlling factor. The defense argued that the speech was not citizen speech because it was made at a council meeting which Lindsey attended as part of his job. But, his attendance in that capacity was to report on water, sewer, and street matters. Though he had attended training which included a session on the “sunshine law,” there was nothing to indicate he was sent to the training to learn about the law or that his job included ensuring compliance with the law.

     

Next, the defense argued that the comments were not on a matter of public concern, since they addressed the council’s procedures for adopting ordinances governing retirement and other municipal employee benefits. Therefore, it was argued, they were self-serving and could not constitute protected speech. The court responded that criticism, “no matter how obnoxious or offensive, of government officials and their policies clearly addresses matters of public concern.”  While Lindsey did comment on some ordinances involving benefits, that was not the thrust of his complaints. The comments to the mayor about contacting the attorney general’s office were not unprotected threats (like the Blackman case). The mayor also claimed that Lindsey’s comments were not made as a citizen because he was not a city resident. Residency, though, is not a technical requirement to asserting constitutional rights. Constitutional protection is triggered by Lindsey’s United States citizenship.

     

The focus then shifted to the effect on employment, with the court noting that the employer must introduce at least some evidence of adverse impact. Mere allegations of adverse effect on morale or a department’s reputation will not suffice. In effect, the claim was that an employee’s attack on elected officials has a direct and adverse effect and strains in the relationship become apparent. Though his speech to the council was characterized as confrontational and disruptive, actual disruption of city functions must be shown.

     

Lee v. York County School Division, et als.23 Lee, a high school teacher, claimed that the School Board violated his First Amendment rights by removing materials he had posted on the bulletin boards in his classroom. The trial court concluded that his postings were curricular in nature and thus did not constitute speech on a matter of public concern. When Zanca, the principal of Lee’s school, first viewed the postings, he saw that some prominently included religious terms such as “Bible” or “God.” Although Zanca did not read any of the articles in their entirety, he exercised his discretion as principal to remove five items because he saw them as overly religious and thus violative of the Establishment Clause. Aside from his determination that the postings might be legally problematic, Zanca believed the items to be irrelevant to the Spanish curricular objectives that Lee was obliged to follow within his classroom.

     

Although the school had no formal policy on teacher postings in the classroom, an unwritten school board policy, practice, and custom allowed teachers to post materials related to curricular objectives or to post materials of a general and personal nature that were consistent with the school’s educational mission. When asked why he had posted the items, Lee explained that he posted them because he liked them or because they were uplifting. He also explained that a teacher could post most anything in a classroom and make it relevant to the curriculum being taught. He said that schoolteachers often use creative materials to catch and retain the attention of students. He also said that they were, in his opinion, “positive and good for the kids” and due to his position as a teacher, he felt responsible for more than just his students’ academic well-being, likening the postings to those of a picture of George Washington.

     

On appeal of the dismissal of Lee’s suit, the court said, “it is important to first acknowledge that schoolteachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).  However, Lee’s assertions that his postings were private speech on matters of public concern failed to consider that courts have generally recognized that public schools possess the right to regulate speech that occurs within a compulsory classroom setting, and that a school board’s ability in this regard exceeds the permissible regulation of speech in other governmental workplaces or forums. See Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988) which said “We thus recognize that the determination of what manner of speech in the classroom . . . is inappropriate properly rests with the school board rather than with the federal courts.”  The court, however, then said that Garcetti explicitly did not decide whether this analysis would apply in the same manner to a case involving speech related to teaching, so it applied the Pickering-Connick balancing test in the context of precedent that included analysis of whether the speech was curricular speech, in which case it was not protected. To make that determination the court asked whether (1) the speech was school-sponsored bearing the imprimatur of the school, and (2) the speech is supervised by faculty members and designed to impart knowledge to the students. Finding that the postings met both these criteria, the court affirmed the dismissal of Lee’s action.

     

Bessent v. Dyersburg State Community College (DSCC).24   In another academic setting, a former supervisor of DSCC’s adult education program alleged that her First Amendment rights were violated when she was fired in retaliation for making statements regarding the internal operation of DSCC’s adult literacy program. She had started an adult literary program through a privately-funded, non-profit agency. When state funding became available, the program was run through an agreement with DSCC. Some concerns arose over her handling of the program. Bessent voiced opposition to DSCC’s planned takeover of the program because she believed that such a consolidation would lead to a funding shortfall, while at the same time increasing costs due to the requirement that it comply with Tennessee Board of Regents regulations. Despite her opposition to the merger, DSCC hired Bessent as a supervisor, the functional equivalent of her pre-merger position.  She continued to voice her opposition to the situation at numerous meetings, asserting that the merger was responsible for funding shortfalls. Eventually she was terminated and denied an internal appeal based on her status as a probationary employee.

     

Though several issues were involved in the appeal of the trial court granting summary judgment for the defendants, the nature of her statements is discussed here. After reviewing the traditional balancing test, the court cited Garcetti to the effect that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the constitution does not insulate their communications from employer discipline.”  At oral argument, Bessent’s counsel conceded the “official duties” nature of her comments, admitting that “Ms. Bessent well had the obligation as the Executive Director of the corporation, of a non-profit corporation, to speak out on the functioning of that program.” Later, the court asked counsel, “So this was part of her job?” Counsel responded, “Yeah – to make these suggestions, to make sure the program is functioning properly, to make sure most – more – people are being reached.” Again, the court inquired, “So your position, if I understand it, is that the statements for which she was fired were an integral part of her job,” to which counsel stated “I think that, yes.”  Therefore, Bessent’s statements were made as part of her official duties and did not receive constitutional protection. Of course, job titles and descriptions do not categorically determine if speech is made “officially,” but this clear admission doomed her claim.

     

Morales and Kolatski v. Jones, Ray, and City of Milwaukee.25   This case demonstrates some of the very real difficulties in categorizing speech as being official or unofficial. The plaintiffs were two police officers assigned to the vice squad. They alleged that their reassignment to street patrol duties constituted retaliation for exercising protected speech. At the risk of oversimplification, the facts can be summarized as follows. The two officers were assigned to arrest an alleged drug dealer. After several attempts failed, they came to believe that the Chief and Deputy Chief (the latter being the sister of the alleged dealer) participated in harboring the dealer to prevent his arrest. The belief arose apparently on the basis of an erroneous statement by a restaurant owner that, while delivering food to the home of the Deputy Chief, the alleged dealer was seen in the company of both the Chief and the Deputy. That belief was bolstered when another officer was ordered to delete the Deputy Chief’s address on a report of the incident. They reported their belief to other officers and supervisors and Officer Morales spoke with an assistant district attorney. He also testified about these matters in a deposition in an unrelated matter. The defendants appealed jury verdicts against them asserting that the officers’ speech was not protected under Garcetti.

 

      In an extensive analysis of speech made pursuant to official duties, the Court made several notable comments, including:

     The crux of the inquiry was whether the officers’ speech was made pursuant to official duties.

     Garcetti did not provide a definitive framework for determining the scope of an employee’s duties because the parties there agreed that the speech was made officially.

     That inquiry is a practical one and should focus on the duties “an employee actually is expected to perform.”

     

The officers claimed, first, that the speech was not made officially because they first learned about the allegations of the Chief’s and Deputy’s actions after the arrest was made. However, official duties in this case included processing arrests and, thus, did not end with the arrest. Next, the officers asserted that the official nature of the incident ended when the Chief concluded his investigation into whether one of the officers disclosed confidential information to the restaurant owner. The Chief decided that the disclosure did not pose a threat to the investigation because the arrest had already occurred. This, the officers said, supported the claim that their official actions ended with the arrest. The court disagreed for the same reasons as set forth on the first issue and also said the Chief’s investigation had no bearing on the nature of the statements. Lastly, they argued that the speech was not official because they were uncertain of what they should do regarding the restaurant owner’s allegations. But, uncertainty or merely having discretion to act does not signify that action is unofficial or outside the scope of duties. Exercising discretion can be a part of one’s official duties. The internal reports of conversations concerning the alleged actions of the Chief and Deputy, therefore, were official duties and were not protected.

     

Morales’ comments made in the unrelated deposition, though, were a different matter.26 He had testified that in his opinion Officer Kolatski was transferred because of the report of the allegations against the Chief and Deputy. Being deposed in a civil suit pursuant to a subpoena was clearly not one of the officer’s job duties. The fact that he testified about speech made pursuant to official duties did not change the character of that testimony. At this point, the court acknowledged that it might seem odd for speech to be classified as official or not based on the identity of the listener.27 Odd though it may be, the court said that is the requirement of Garcetti and, since the court could not determine whether the retaliation against Morales was for protected or unprotected speech, it returned the case to the lower court for a new trial on that issue alone.

     

The dissenting judge felt that the first issue should have been to identify clearly the speech that was the cause of retaliation, but he agreed that comments other than those made to the assistant district attorney and at the deposition were made officially. The discussion with the assistant D.A. involved several considerations in addition to the issue of Morales’ discretion. Some of it entailed a discussion of his findings regarding the arrest and submission of reports (e.g., work product) that would not be protected; but when he was speaking as a witness about the possibility of public corruption, he spoke in the same fashion as might any citizen who witnessed suspicious conduct by a government official. Therefore, that aspect of his discussion constituted protected speech. As to the deposition testimony, the dissent had little trouble finding that the speech was protected as there was no obligation to testify as part of Morales’ duties. The dissent also disagreed with the decision to send the matter back for retrial. He said the jury could reasonably have found that the demotion’s timing indicated it resulted from protected speech during the deposition and not from unprotected speech made several months previously.  

     

Brammer-Hoelter, et als. v. Twin Peaks Charter Academy, et als.28   This decision addressed First Amendment rights of charter school teachers who began meeting off-campus and after hours in residences, restaurants and a church to discuss concerns about the operation, management and mission of the school. The academy’s principal issued an order banning discussion of Academy matters outside of work and later told the teachers she would prefer that they not even associate with each other outside of work. Sometime later, the participants began receiving unfavorable performance reviews, contrary to past evaluations. They also said the principal ignored them and treated them rudely, e.g., slamming doors in their presence. They eventually submitted resignation letters, but later tried to rescind them (apparently after the principal resigned).

     

A critical issue in the case was whether the trial court was correct in ruling that the discussions did not involve matters of public concern. The circuit court said that following Garcetti, a five-step test was now appropriate:

 

1.   Is the employee speaking pursuant to official duties or as a citizen?  If the speech is in the former category, no constitutional protection exists because the employer restriction “simply reflects the exercise of employer control over a position the employer itself has commissioned or created.”

2.   If the speech is not made pursuant to official duties, is the subject a matter of public concern?  If not, the speech is unprotected.

3.   If the employee speaks as a citizen on a matter of public concern, does the employee’s interest in speaking on the issue outweigh the interests of the government as employer?

4.   Assuming the employee’s interest in speaking does outweigh the government’s interest as the employer, the employee must then show the speech was a substantial or motivating factor in a detrimental employment decision.

5.   If that factor is shown, the employer may then show it would have taken the same action against the employee even in the absence of the protected speech.

 

Conclusion

In any review of public employees, it is essential to note that employees may have substantial protections with regard to speaking out on matters of public importance that are not founded upon First Amendment free speech doctrine. Among the most prevalent of these are whistleblower protection statutes such as New Hampshire RSA chapter 275-E.  In addition, New Hampshire, like many states, has limited employer discretion, even in at-will employment situations, so that an employee cannot suffer adverse consequences because the employee performed an act that public policy would encourage, or refused to do that which public policy would condemn.29 This so-called public policy exception to at-will employment status is premised upon the underlying obligation to act in good faith in respect to contractual matters, including employment contracts (even those that are not in writing). This limitation upon employer discretion also would likely apply to most instances in which verbal or written statements by an employee could be seen to substantially involve a public interest.

     

The majority opinion in Garcetti states that it does not seek to alter the basic formulation of the law of public employee free speech, now popularly known as the Pickering rule. The application of that standard rule, as discussed in this article, has been subject to refinement over the course of the last four decades. Reasoned analysis of this new decision would support the notion that the Pickering rule is still, as lawyers like to say, “good law.” 

     

It remains to be seen if the decision helps to avoid having federal courts act as “super personnel review/arbitration boards” as Justice Kennedy mentions. From a practical viewpoint, the existence of the good faith/contract obligations in New Hampshire and elsewhere and the availability of statutory remedies in whistleblower protection statutes may provide public employees with any protection that might have been cut off by broad interpretation of Garcetti.  While remedies, therefore, may exist for certain situations, not all “free speech” issues will necessarily be covered by those remedies. In addition, employees may still seek to assert free speech claims in hopes of prevailing in a civil rights action under 42 U.S.C. §1983, thereby potentially entitling a successful claimant to attorney’s fees and damages. Thus, public employers are still advised to be wary of issues that might involve protected public employee speech.

 

Endnotes

1.   McAuliffe v. Mayor of New Bedford, 155 Mass. 216 (1892).

2.   Adler v. Board of Education, 342 U.S. 485 (1952).

3.   The so-called Pickering balancing test was first established in Pickering v. Board of Education, 391 U.S. 563 (1968). 

4.  __ U.S. __, 126 S.Ct. 1951 (2006).

5.   Ibid. at 1960.

6.   __ N.H. __ (July 18, 2007). 

7.   Exceptions may arise when the private employer is clothed with governmental authority.  Restrictions on the discretion and authority of public employers also may arise through federal and state legislation in such areas as privacy, discrimination, and whistleblower protection, along with limitations on at-will employment imposed by public policy exceptions, statutes, ordinances, or individual or collective employment agreements.

8.   Keyishian v. Board of Regents, 385 U.S. 589 (1967).

9.   Supra n. 3.

10. 461 U.S. 138 (1983).

11. Ibid. at 140.

12. Ceballos was employed as a supervising deputy district attorney for Los Angeles County.  As part of his duties as a “calendar deputy,” he was asked by defense counsel in a pending case to review a search warrant which he claimed was based on an inaccurate affidavit.  Ceballos’ investigation led him to believe that was the case and he reported that to his supervisors (Najera and Sundstedt) and sent them a memo recommending that the case be dropped.  After meeting with Ceballos, the deputy sheriff who filed the affidavit and others, Sundstedt decided to proceed with the prosecution.  At a hearing on a motion to challenge the warrant, Ceballos was called by the defense as a witness and he recounted his observations about the affidavit.  The court rejected the challenge to the warrant.  Ceballos claimed that in the aftermath of these events he was subjected to retaliation, including reassignment, transferred to a different courthouse and denied a promotion.  He filed an internal grievance that was denied and then filed a civil rights suit under 42 U.S.C. §1983 claiming a violation of First and Fourteenth Amendments by retaliating against him based on his memo.   The defendants, individual supervisors in the district attorney’s office, asserted that the employment actions were all justified by legitimate reasons such as staffing needs and, in any event, the memo was not protected speech.

13. Morales and Kolatski v. Jones, et als., __ F. 3d __ (7th Cir., No. 06-1463, July 17, 2007).

14. Ibid.

15. Ibid.

16. Supra, note 5.

17. Two other reasons cited the assessor’s appearance before the zoning board and one related to the tax increment finance committee.

18. The city’s appeal also claimed erroneous evidentiary rulings and jury instructions, failure to prove the wrongful termination claim, and that the verdict exceeded the municipal liability cap under RSA 507-B:4. Those grounds for appeal were rejected.  The plaintiff cross-appealed the jury’s failure to award future wages and benefits.  The court reversed the lower court on that issue based on statements in the city’s closing argument and remanded the case for further proceedings on that issue.

19. The emphasis on professional conduct might indicate that employees in non-professional positions could face a lower threshold in having speech categorized as being made by a citizen.

20. Citing Brasslet v. Cota, 761 F.2d 827, 845-46 (1st Cir. 1985).

21. __ F.3d __ (2nd Cir. June 21, 2007).

22. ___ F. 3d. ___, (8th Cir. June 26, 2007).

23.  __ F.3d __ (4th Cir. May 2, 2007). 

24. __ F.3d  __ (6th Cir., April 2, 2007). 

25. __ F.3d __ (7th Cir., July 17, 2007). 

26. The case in which the deposition was taken involved a different officer’s assertion that he had been transferred in violation of First Amendment rights.

27. The court noted that Justice Stevens’ dissent in Garcetti said it “is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description” 126 S.Ct at 1963.

28. __ F.3d __ (10th Cir., July 12, 2007). 

29.        Cloutier v. A. & P. Tea Co., Inc., 121 N.H. 915 (1981). 

 

Author

Attorney Daniel D. Crean, a former member of the Bar Journal Editorial Advisory Board, is Program and Training Manager for the New Hampshire Public Risk Management Exchange (Primex3), a public entity risk pool organized and operating as a trust on behalf of member municipalities, schools, counties and other governmental entities.

 

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