Kentucky Employment Law Blog

Deputies' Report of Sheriff's Eavesdropping Addressed Matter of Public Concern and Was Protected by First Amendment

"[W]hen public employees allege that government officials break the law, their speech addresses a matter of public concern" and is entitled to First Amendment protection the Sixth Circuit recently reiterated in Kiessel v. Leelaneau County, No. 10-2602 (January 31, 2012).  The court affirmed the denial of qualified immunity to a sheriff sued by three former deputy sheriffs, who claimed they were fired in retaliation for reporting to the FBI and Michigan state police that the sheriff was eavesdropping illegally on their phone calls.

Events unfolded as follows. In January 2008, two deputy sheriffs, Kiessel and Lamb, reported to the FBI and state police that the sheriff, Mike Oltersdorf, was eavesdropping on their phone calls. In response, the sheriff got an opinion from the Michigan Attorney General stating that his actions were not illegal. In the public debate that followed, two of the deputy sheriffs wrote a letter to the editor stating the sheriff committed "misconduct" and "unlawful actions" in eavesdropping. Sixth months later the sheriff suspended them for making "false public accusations." Another six months later, the sheriff fired the deputies. They, in turn, sued claiming among other things violation of their First Amendment rights. A district court denied qualified immunity to the sheriff, who appealed.

The Sixth Circuit, in an opinion written by district judge Amul R. Thapar, affirmed and noted the First Amendment protections that attached to the deputies' letter to the editor:

• "Statements exposing possible corruption in a police department are exactly the type of statements that demand strong First Amendment protection." See v. City of Elyria, 502 F3d 484, 493 (6th Cir. 2007)
  
  
• "Certainly speech which questions the credibility of the Sheriff's Department ... is a matter of public concern." Lucas v. Monroe County, 203 F3d 964, 974 n. 5 (6th Cir. 2000)
  
  
• "Public interest is near its zenith when ensuring that public organizations are being operated in accordance with the law." Marohnic v. Walker, 800 F.2d 613, 616 (6th Cir. 1986)
  
  
• "accusations of corruption in a police department are 'exactly the type of statements that demand strong First Amendment protections.'" Elyria, 502 F.3d at 493.

Interestingly, the court gave short shrift to the sheriff's argument that he could reasonably have believed that the deputy sheriffs knowingly or recklessly made false statements in their newspaper letter, since the Michigan Attorney General said the sheriff's eavesdropping was legal: "The sheriff knew the plaintiffs had reported the eavesdropping to the FBI as well as to the Michigan State Police, suggesting the plaintiffs believed that the Sheriff's Office broke both federal and state laws. The Attorney General's opinion dealt only with the legality of the eavesdropping under state law, so a reasonable official could not have relied on the opinion to conclude that the plaintiffs falsely accused the sheriff of violating federal law."

Robert L. Abell
www.RobertAbellLaw.com 

 

 

Kentucky Supreme Court Rules That The First Amendment Does Not Recognize Any Right to Seek Political Office

The First Amendment protects and promotes unfettered and robust debate, discussion and speech on political candidates, political issues and public affairs.  But does it protect or recognize a right to seek political office, to be a candidate for political office? "No" answered the Kentucky Supreme Court recently in Cook v. Popplewell, No. 2009-SC-341 (December 22, 2011), affirming summary dismissal orders of the trial court and Court of Appeals and adopting a distinctly minority view on the issue. 

Stacie Cook was employed as a deputy clerk in the Russell County Clerk's office.  Shortly after she announced her candidacy to challenge her boss and the incumbent, Lisha Popplewell, in the 2006 election she was fired.  Cook filed suit under 42 USC 1983 claiming that her firing violated her First Amendment rights. More specifically, Cook claimed that she was fired based on the mere fact that she was a candidate for the office not because of any speech in which she claimed she was a superior candidate or because of any affiliation or alliance she entered to promote her candidacy. Accordingly, the Court framed the question as "whether candidacy for political office, standing alone, receives protection under the First Amendment?" On this question the Court majority (Justices Venters, Cunningham, Schroder and Scott), held "that the First Amendment affords no constitutional protection to candidacy for political office  per se."

Justice Abramson authored a concurring opinion joined by Chief Justice Minton and Justice Noble.  While agreeing that Cook was not entitled to any relief, the concurrence rejected the view "that candidacy, running for office, seemingly one of the most basic forms of speech a democratic society fosters, enjoys no protection under the First Amendment."

Robert L. Abell
www.RobertAbellLaw.com