The Supreme Court's unwise decision in Garcetti v Ceballos, 547 US 410 (2006) reduced the First Amendment protections for public employees that acted to correct or stop wrongful or wasteful conduct by government agencies or officials. The Garcetti holding stripped First Amendment protection for public employees for speech made pursuant to their official duties. Perhaps in recognition of the mischief that it had caused the Supreme Court in Lane v Franks, 134 SCt 2369 (2014), that the key issue under the Garcetti rule was "whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties." This limit to the Garcetti rule the Sixth Circuit addressed recently in Boulter v. Swanson, 14-2308 (July 29, 2015).
The plaintiff, Boulter, a sergeant in a county sheriff's department, claimed he'd been demoted and then suspended based on testimony he'd given at an arbitration hearing regarding the lack of training afforded deputy sheriffs regarding Taser and firearm use and CPR, which contradicted the testimony given by a superior officer. The district court, Judge Nancy G. Edmunds, ruled that Garcetti barred First Amendment protection for Boulter's testimony categorizing it as “speech that owes its existence to a public employee’s professional responsibilities,” on the basis that Boulton could not have participated in the union or the arbitration if he were not an employee of the Sheriff’s Office." In essence, this is a but for test; but for Boulter's employment he would not have been in any position to testify regarding the lack of training.
But Garcetti could not be read so broadly following the Lane decision the Sixth Circuit concluded:
After Lane, the Garcetti exception to First Amendment protection for speech residing in the phrase “owes its existence to a public employee’s professional responsibilities” must be read narrowly as speech that an employee made in furtherance of the ordinary responsibilities of his employment. It is axiomatic that an employee’s job responsibilities do not include acting in the capacity of a union member, leader, or official. In fact, Michigan law makes it illegal for a public employer to “dominate . . . or interfere with the formation or administration of any labor organization.” Mich. Comp. Laws § 423.210(b). We therefore hold that speech in connection with union activities is speech “as a citizen” for the purposes of the First Amendment.
It would seem that "ordinary responsibilities of his employment" should be read as customary, usual and frequent for someone in the employee's job, which testifying at an arbitration hearing would not be.
Boulter did not win reversal of the district court's summary judgment, notwithstanding the Sixth Circuit's favorable ruling as to whether his speech addressed a matter of public concern and was entitled to First Amendment protection. Part of the problem was that he failed to properly frame his claim until it was too late, and the Sixth Circuit affirmed the district court's denial of what was labeled a very late motion to file a third amended complaint.
The Sixth Circuit's opinion was authored by Circuit Judge Jane Stranch joined by Circuit Judge Eric Clay and Senior Circuit Judge Damon Keith.
Although the Supreme Court's decision in Lane v Franks has proved helpful in mitigating the mess inflicted by Garcetti, it was otherwise a disaster of significant proportions, as discussed in a previous post, Lane v. Franks: Even Though It Would be A Crime, Supreme Court Rules that Public Employer Is Entitled to Qualified Immunity From Any Damages.
