Bad facts made bad law. Sometimes the bad law is so bad that it, as a practical matter, will spread like waves and ripples from a boulder into a pond. So it is with the Sixth Circuit's recent decision in Gillis v. Miller.
The case arises in the Bay County, Michigan jail. It seems that an inmate was unable to receive treatment at the jail for a medical condition, and a deputy jailer decided to help him out. The deputy's wife worked as a dental assistant and obtained a prescription in her name for a periodontal mouth rinse. The deputy scratched his wife's name off the label and placed the prescription in a jail office with specific instructions about giving the medicine to the inmate. This good deed apparently provoked a firestorm of rumors in the jail regarding drugs being introduced into it and an investigation into potential prescription drug trafficking at the jail ensued.
Two deputy jailers, Gillis, who was the President of the Bay County Correction Officers Union, and Walraven, a sergeant, crafted and had posted a memorandum to their fellow deputy jailers regarding their rights under the Supreme Court's decision in NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), commonly referred to as "Weingarten rights." Both the majority and the dissent opinions quote the memo so we will also:
Hello everyone I would like to express my gratitude in being your Union President. I feel there is a very important issue that needs to be discussed. Many deputies have been notified they need to report to a superior officer for some type of investigatory interview or investigation. When you are summoned before a superior officer, I strongly suggest you state these words before you say anything else. "If this discussion could in any way lead to me being disciplined or discharged, I request my Union representative be present at the meeting. Without representation, I choose not to answer any questions." These rights also cover yourself in the event someone else may be discipline due to your statement. I am in no way advising you not to cooperate with management, just advising you of your rights.
It is your responsibility to ask for the representation. It is not the responsibility of management to advise you of this. Attached are the actual Weingarten Rights. Please review them as they are extremely important for yourself and everyone else. Even if you don't think you need representation, it has been proven it is better to have another set of ears as sometimes words are taken out of context.
In conclusion you have the right to discuss union matters with your Union President and Vice President. Some of you may have been ordered not to discuss what was said in a meeting with your superiors. I strongly recommend you advise us of what happened for your protection and others. Again, thank you for your time and I look forward to working with everyone.
Matt Gillis (POLC LOCAL)
The memo was posted on February 12, 2014. The next day Sheriff Miller, who was in charge of running the jail, threatened Gillis with criminal prosecution for interfering with an ongoing investigation. Walraven was placed on leave on February 18, 2014, based on "an investigation of allegations of misconduct[.]" Walraven's employment was terminated on April 15, 2014; it had to do with allegations that appear to be goofing off and some minor policy violations. Gillis was subjected to a separate investigation beginning on February 26, 2014, relating to an alleged sexual relationship with an inmate that began "during her time in custody and after her release but while under court supervision." Gillis eventually admitted involvement and resigned his employment; nevertheless, he claimed that he was constructively discharged on February 27, 2014.
These facts are bad enough. If Gillis began a sexual relationship with an inmate while she was in custody, he should have been fired. The allegations regarding Walraven predated posting in the memo; it would appear that he would have been subject to some discipline on the basis of the misconduct occurring well before the memorandum. In other words, these bad facts make both Gillis and Walraven poor plaintiffs to assert the free-speech protections for public employees under the First Amendment.
The District Court granted summary judgment to the defendants. The Sixth Circuit in a 2-1 decision affirmed. The most troubling aspect of the decision is the discussion regarding what is required of a public employer to substantiate that the Pickering balance applied in these type cases should tilt in its favor.
The Pickering balancing test is used "to determine if the employee's free-speech interest outweighs the efficiency interest of the government as employer." This is a process in which a court, as a matter of law, must weigh the employee's interest in commenting upon matters of public concern against the interest of the state, as an employer, and promoting the efficiency of the public services it performs through its employees. In other words, the Pickering balancing test gives a court leeway on a legal issue to tilt the balance in favor of the employing public entity and in silencing public employees.
Gillis and Walraven argued that the defendants had failed to present evidence that their memorandum had caused any actual disruption to the jail's operations. In ruling on a matter of first impression, the Sixth Circuit ruled that the defendants did not have to make such a showing. Instead, the Sixth Circuit ruled as follows:
A public employer need not show actual disruption of the public agency in all cases in order to prevail under the Pickering balancing tests. Instead, when the employer does not offer such evidence, we must assess whether the employer could reasonably predict that the employee speech would cause disruption, in light of the manner, time and place the speech was uttered, as well as the context in which the dispute arose.
To meet this standard all that a public employer is going to have to do is offer some semi-coherent expression of concern about the effects the employee's speech could have had. This is going to be even easier when the employer is a jail or law enforcement agency, since the Sixth Circuit emphasized that "we have long recognized 'the importance of deference' to law enforcement officials when speech threatens to undermine the functions of organizations charged with maintaining public safety." The practical application of this rule will be to foreclose nearly all if not all free speech protections for public employees employed in a public safety agency. It will also creep into nonpublic safety public agencies as well.
The value of First Amendment protections for public employees is that it offers protection for whistleblowers to report and announce waste, fraud, abuse and the like as well as practices that misserve the public or waste taxpayer dollars. This isn't what Gillis and Walraven were doing; a better ruling would have been that their speech did not address a matter of public concern and, therefore, was not entitled to any First Amendment protection, a ruling that would preclude the necessity of reaching the Pickering balancing test. So once again bad facts make bad law.
The Sixth Circuit's majority opinion was authored by Circuit Judge Eric Clay and joined by visiting District Judge Joseph Hood of the Eastern District of Kentucky. Circuit Judge Karen Moore dissented.