Kentucky Employment Law Blog

Sixth Circuit insulates law enforcement agencies from public scrutiny

The Sixth Circuit's ruling recently in Kirkland v. City of Maryville, where it affirmed a summary judgment granted the city, will serve powerfully to insulate law enforcement agencies from public scrutiny. This undermines the long-established notion that speech leading to scrutiny of public agencies and those running them is of the highest public concern and, therefore, of compelling First Amendment protection. See Solomon v. Royal Oak Twp., 842 F.2d 862, 865 (6th Cir. 1988). 

The plaintiff in Kirkland was employed as a patrol officer by the city police department. She posted on her personal Facebook page criticisms of the county sheriff and his department, where she'd been employed previously. Her supervisors at the city asked her to stop the posts, because they "became concerned that her posts would undermine" the city's relationship with the sheriff's office. Later, Kirkland made two more posts on Facebook critical of the sheriff who was running for re-election. A "concerned citizen" complained to the city about Kirkland's posts critical of the incumbent sheriff. Kirkland was reprimanded for the critical Facebook posts; she was later suspended for three days. Six months later, Kirkland shared on Facebook "an unflattering article" about the sheriff and possible corruption in his department: "Sheriff's connections to private contractor are cozy, but lawyer says not illegal." Kirkland added the comment: "Just like I'm sure it's not illegal to ban a female officer from training for not voting for you either." Kirkland was terminated "because her post violated Department orders requiring officers to maintain good relations with the public and other law enforcement agencies." 

Kirkland claimed that her firing violated her First Amendment free speech rights to comment on the sheriff's abilities, the operations of his office and its possible corruption. The district court granted summary judgment to the city, which the Sixth Circuit affirmed in an opinion written by Judge Chad Readler and joined by Judges Amul Thapar and Ralph Guy. 

The Sixth Circuit agreed that Kirkland's speech, "which suggested sex discrimination and political retribution by an elected official," was protected by the First Amendment. The court did not acknowledge that Kirkland's speech also raised the issue of the sheriff's integrity. In any event, the summary judgment was affirmed because the court ruled that the city's interests in maintaining a good working relationship with the sheriff's department outweighed Kirkland's First Amendment rights.

The court also added that Kirkland's "history" with the sheriff's department, a fact that would seem to make her exceptionally well-situated to assess the sheriff and the operation of his department, weakened her First Amendment rights. Part of the plaintiff's "history" with the sheriff's department was being fired by the sheriff, something the Sixth Circuit accepts as deserved, the point for the court being that Kirkland was a trouble-maker of long-standing. But this is contradicted and powerfully by the fact that the city police department hired Kirkland after she was fired by the sheriff, a fact that would indicate that little regard was given the sheriff's firing of Kirkland. 

The Sixth Circuit's decision will serve to insulate law enforcement agencies from public criticism and scrutiny. First, law enforcement officers are best situated to become knowledgeable regarding the deficiencies in the personnel, leadership and/or operations of other law enforcement agencies that they cross paths with. The Sixth Circuit's ruling will deter the exposure of corruption and other malfeasance in a law enforcement agency by those most qualified and able to assess it. Second, every public agency everywhere can make the assertion that maintaining good relationships with law enforcement agencies overrides the First Amendment rights of its employees, no matter if they work in parks and recreation, sanitation or whatever. The Sixth Circuit has alerted public employers of a fail-safe defense that will quash the First Amendment rights of public employees and insulate law enforcement agencies from public scrutiny. 

And federal courts are where plaintiffs go to die: Stunning drop in federal plaintiffs’ win rate is complete mystery – new study.

Robert L. Abell
www.RobertAbellLaw.com 

 

Public Employees & Speech On Matters of Public Concern; the Sixth Circuit Tips the Balance Toward Silence

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.

Respectfully, 

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. 

Robert L. Abell
www.RobertAbellLaw.com

 

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Political Discrimination Against Public Employees; The Employer's Motive is Key

Public employees are supposed to be immune from punishment or retaliation based on their political associations and activities. This protection derives from the First Amendment which "prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate," the Supreme Court ruled long ago in establishing one of the most widely-disregarded in Kentucky employment rules.  But what if the employer is mistaken about the employee's political activity or support for a candidate and takes action against the employee based on that mistaken information? No matter, the Supreme Court ruled this term in Heffernan v. City of Paterson:

When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity that the First Amendment protects, the employee is entitled to challenge that unlawful action under the First Amendment and 42 U.S.C. § 1983 -- even if, as here, the employer makes a factual mistake about the employee's behavior.

Justice Breyer authored the opinion for the Court's 6-2 majority; Justice Thomas joined by Justice Alito dissented.

Robert L. Abell
www.RobertAbellLaw.com

Paterson, New Jersey, in addition to being the hometown of the great poet Allen Ginsberg, is also the situs for the wrongful prosecution and conviction of champion boxer Rubin "Hurricane" Carter memorialized by the Bob Dylan song, "Hurricane""

 

Public Employees & First Amendment Protection; the Sixth Circuit Defines the Limits of the Garcetti Exception

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.

Robert L. Abell
www.RobertAbellLaw.com

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www.RobertAbellLaw.com

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How Flexible Is the Similarly-Situated Employee Doctrine?

One way for an employee to prove unlawful intent is evidence that other, similarly-situated employees received better treatment. The similarly-situated employees must be similarly-situated in all relevant aspects, which is not the same as all aspects and certainly does not require, as the Sixth Circuit in other courts have advised time and again that the other, similarly-situated employees share the same supervisor.

• "Similarly Situated" Employees Need Not Have the Same Supervisor; 
  
  
• Is It A Prerequisite In Discrimination Cases That A Comparator Have the Same Supervisor As The Plaintiff?; 
  
  
• How Important Is Whether A Comparator Was Working For the Same Supervisor?; 
  
  
• Once Again, The Sixth Circuit Rules That A Similarly-Situated Comparator Need Not Have Worked For The Same Supervisor.

The Sixth Circuit again elaborated on the similarly-situated doctrine in its recent decision, Benison v. Ross, No 13-2554 (September 3, 2014), where it reversed a summary judgment granted by the district court.

Kathleen Benison was a tenured faculty member at Central Michigan University (CMU). She applied for and was granted a paid sabbatical, which carried a condition that she work at CMU for at least one year following her return or repay what she was paid while on sabbatical. But while Kathleen was on sabbatical her husband, an undergraduate student at CMU, had a material role in sponsoring a no-confidence vote regarding the CMU President. So bad blood arose upon her return and forced Kathleen to resign. CMU, in an ill-advised fit of pique, sued Kathleen for repayment of the money paid her while she was on sabbatical. She filed suit subsequently claiming retaliation against her based on the First Amendment protected-activity of her husband with regard to the university president.

Kathleen cited the suit filed against her by CMU as proof of its retaliatory intent. She offered evidence regarding four other CMU faculty members, who "in the past ten to fifteen years" had similarly resigned their positions before working for the university for one year following their sabbaticals.  For these four "CMU waived the obligation to repay compensation for three and chose not to file a lawsuit to enforce the contract against the fourth." This evidence was sufficient to raise an inference of causation given the disparate treatment and the Sixth Circuit explained further as follows:

A plaintiff who chooses to prove retaliatory intent by using comparative ors must show that he "and the employee with whom [he] seeks to compare himself ... [are] similar in all of the relevant aspects." Ercegovich v Goodyear Tire & Rubber Co, 154 F3d 344, 352 (6th Cir. 1998). However, when the sample size of possible comparable employees is small, a court should not apply the "similarly-situated" requirement so stringently that it "deprive[s a plaintiff] of any remedy to which he may be entitled under the law." Jackson v. FedEx Corp Servs, Inc, 518 F3d 344, 352 (6th Cir. 2008).

This is a common-sense formulation, recognizing simply that this evidence is enough for a jury to ponder fairly and draw from it (or not) inferences either way. The similarly-situated doctrine, like any evidentiary doctrine, must be flexible and adaptive to context. The Seventh Circuit stated this best in Elkhatib v Dunkin Donuts, Inc, 493 F3d 827 (7^th Cir 2007):

The similarly-situated requirement should not be applied mechanically or inflexibly, but rather is a common-sense flexible inquiry that seeks to determine whether there are enough common features between the individuals to allow a meaningful comparison.  Substantial similarity, not complete identity, is required.

Robert L. Abell
www.RobertAbellLaw.com

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Lane v. Franks: Even Though It Would be A Crime, Supreme Court Rules that Public Employer Is Entitled to Qualified Immunity From Any Damages

The Supreme Court's decision in Lane v. Franks seems, on its face, like a win for the First Amendment and public employees. But it is neither. It does nothing for no one, not even the fired employee, Edward Lane, who claimed he was fired because of truthful testimony he gave in a public corruption criminal prosecution. All the decision ultimately does is force lower federal appellate courts to find new ways to shut the courthouse doors to public employees retaliated against when they speak up about wrongdoing, fraud, crimes that they come across in their jobs.

Edward Lane was director of a program at Central Alabama Community College. He discovered that a Suzanne Schmitz, an elected member of the Alabama state House, was maintaining a "no-show" job, meaning that she did not show up for work ever, just collected and cashed payroll checks. Schmitz was eventually prosecuted on mail and wire fraud charges related to this malfeasance, found guilty, ordered imprisoned for 30 months, etc. Lane was subpoenaed to testify and did testify at both of Schmitz's trials (the first ended in a hung jury) regarding the circumstances that had led him to terminate her employment. 

Lane was later fired, and he filed suit claiming that his firing was in retaliation for his testimony under subpoena at Schmitz's criminal trials in violation of his First Amendment rights. The district court threw his case out of court, and the Eleventh Circuit affirmed. 

The Supreme Court ruled (unremarkably it must be said): "Lane's truthful sworn testimony at Schmitz' criminal trials is speech as a citizen on a matter of public concern." Then the Court dutifully recited that the employer had offered no evidence of any legitimate reason for its attempt to coerce perjury by Lane at Schmitz' two criminal trials, and, therefore, held "that Lane's speech is entitled to protection under the First Amendment." 

And then the Court seizes defeat from the jaws of victory. It turned to the issue of qualified immunity framing the question as follows:

Could [the defendant employer] reasonably have believed, at the time he fired Lane, that a government employer could fire an employee on account of testimony the employee gave, under oath and outside the scope of his ordinary job responsibilities? 

As once put so aptly by Judge Ronald Gilman of the Sixth Circuit and with all due respect: "There is no way." 

It is a federal crime and a violation of 18 U.S.C. 1513(e) to retaliate against a person by interfering with their employment on account of information they provided to law enforcement authorities about criminal activity. But, nevertheless and despite the reality that it would in fact be a crime, the Court ruled that the employer could have believed reasonably that it could lawfully fire Lane bacause of his grand jury testimony. Therefore, Franks was entitled to qualified immunity, which means that Lane cannot collect any damages for what is both a criminal and a constitutional violation.  

The Court's decision dramatically expands the scope of the qualified immunity defense in civil rights cases. Previously, the Court had ruled that qualified immunity was not available where in light of preexisting law, the unlawfulness of the official’s conduct was reasonably and objectively apparent.  Wilson v. Layne, 526 U.S. 603, 615 (1999). But now even if the official's conduct is proscribed by a federal criminal statute, he may still reasonably and objectively entertain the notion that his conduct may not be unlawful and therefore be entitled to qualified immunity. 

And so it goes. 

Robert L. Abell
www.RobertAbellLaw.com

 

 

 

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Free Speech Rights of Policy-Making Public Employees

Do public employees in policy-making positions have different and lesser free speech rights than other public employees? They do and the point was further shown in the Sixth Circuit's recent decision in Dixon v. University of Toledo, No 12-3218 (December 17, 2012).  

Crystal Dixon, an African-American woman, was the Associate Vice-President for Human Resources at the University of Toledo.  Her responsibilities in that position included developing and implementing human resources policies, overseeing employee benefits, handling employee grievances, and promoting the university's diversity plan that specifically included sexual orientation within its equal opportunity and anti-harassment policies among other duties.  

In response to an editorial column in the local paper, the Toledo Blade, that compared the gay rights movement with the civil rights movement, Dixon wrote and submitted a response titled "Gay Rights and Wrongs: Another Perspective," in which she rejected the comparison. Dixon did not identify her position with the university in her column.  Dixon was terminated two weeks later. She filed suit claiming, among other things, that she was fired in retaliation for her exercise of First Amendment free speech rights. The district court granted the defendants summary judgment.

On appeal, the Sixth Circuit framed the question narrowly: "whether the speech of a high-level Human Resources official who writes publicly against the very policies that her government employer charges her with creating, promoting, and enforcing is protected."  The Sixth Circuit concluded that Dixon's was a policy-making position, that the presumption arising from its decision in Rose v. Stephens, 291 F3d 917 (6th Cir 2002), applied and held that Dixon's speech was not protected by the First Amendment.

The Sixth Circuit's opinion was written by Judge Karen Nelson Moore joined by Judges Ronald Gilman and Raymond Kethledge.

Robert L. Abell
www.RobertAbellLaw.com 

 

 

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Police Officer's Report to Internal Affairs Protected by First Amendment

A police officer's report to the police department's internal affairs bureau is protected by the First Amendment a federal district court in New York has ruled in Griffin v City of New York, No. 10-CV-2592 (EDNY, July 31, 2012). This is an important ruling that correctly recognizes the limits of the Supreme Court's misguided decision in Garcetti v Ceballos, 547 U.S. 210 (2006).

The Supreme Court ruled in Garcetti that the First Amendment offers no protection for public employees when they make statements pursuant to or commanded by their official duties.  Garcetti has led to numerous bad results such as Vose v. Kliment, 506 F3d 565 (7th Cir 2007), where a narcotics supervisor's report of corruption in his unit was ruled not protected by the First Amendment, and Sigsworth v. City of Aurora, Illinois, 487 F3d 506 (7th Cir 2007), where the court ruled that a task force investigator's reports that targets of the task force were being tipped off by some of its members were not protected by the First Amendment.  Garcetti and these decisions suggest that public employees would be well-advised to report wrongdoing in their departments or units to authorities removed, something that in the context of police work may not be possible. 

The plaintiff in Griffin was a 26-year police detective who reported to internal affairs the attempts of another detective to coerce him into accepting blame for a botched homicide investigation. The city claimed that this report was part of the detective's duties and under the Garcetti rule he was not entitled to any First Amendment protection. 

The district court per Judge Raymond Dearie ruled that the Garcetti rule did not apply for the following reasons:

• Garcetti recognized that there could be cases where it was debatable whether a report was required by a public employee's duties
  
  
• where no clear "official duty" to speak is present, the focus must be on the "subject, manner and context of the speech to determine whether it relates to topics that are 'indispensable prerequisites to effective' performance of the speaker's 'primary employment responsibility"
  
  
•  the city's police manual directing that police officers have an absolute duty to report misconduct in the police department to internal affairs did not preclude First Amendment protection because (1) Garcetti rejected the notion that employers can restrict employees' free speech rights through excessively broad statements of policy or job descriptions; and, (2) reporting internal misconduct to internal affairs was neither encouraged nor rewarded, a reality that undermined the city's position
  
  
• the plaintiff's job was to "police the public, not other police officers" and reporting internal misconduct was not part-and-parcel of the performance of his official duties
  
  
• plaintiff's report to internal affairs was not within his chain of command, especially since any member of the public could make a report to internal affairs

This is a thoughtful and well-reasoned decision by a district judge, who acknowledges that "some applications of Garcetti may be troublesome." Indeed, Garcetti can yield some decisions that are very much counter to the public interest.

Another First Amendment law enforcement case was discussed in a recent post: Deputies' Report of Sheriff's Eavesdropping Addressed Matter of Public Concern and Was Protected by First Amendment.  

Robert L. Abell
www.RobertAbellLaw.com 

 

Do Public Safety Employers Have A Greater Right to Punish Employees For Free Speech Than Other Public Employers?

First Amendment retaliation claims by public employees usually entail the employer asserting that its interests in maintaining order and discipline and/or precluding discord and dissension in its workplace outweigh the employee's free speech rights. This requires what is known as "the Pickering analysis" after the Supreme Court decision in Pickering v. Board of Education, 391 U.S. 563 (1968), and requires the court to determine whether the employer's institutional interests in suppressing free speech outweigh the employee's free speech rights under the First Amendment to inform the public on matters of public concern.  

Public employers come in many varieties: schools, universities, parks and recreation departments, libraries and public safety like police and fire to name just a few.  Are the interests of public safety agencies in precluding any discord and/or disruption in its workplace caused by free speech on matters of public concern entitled to greater weight than that of other public agencies? "No" the Sixth Circuit answered this question recently in Mosholder v. Barnhardt, No 10-2586 (May 11, 2012), explaining

it [is not] the rule of this Circuit that public safety employers have a greater weight placed on their interests in order and discipline than other employers have in their institutional interests.

Robert L. Abell
www.RobertAbellLaw.com 

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