Confronting the Confusion in Public Employee Speech after Garcetti v. Ceballos Hofstra Labor and Employment Law Journal
Elizabeth M. Tetro
At first glance, the rule out of Garcetti v. Ceballos seems to be very clear: “when pubic 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.” The new rule in Garcetti created harsher restrictions for public employees’ speech in the workplace. In other words, if an employee speaks pursuant to his or her official duties of employment, the speech is unprotected by the First Amendment. Thus, if an employee is disciplined as a result of his or her speech, and that speech is considered to be pursuant to one’s official duties, the First Amendment is unavailable for protection. Following Garcetti, however, federal circuit courts produced a wide array of interpretation that exposed inconsistency and confusion of Garcetti’s rule. While some circuits defined the employee’s official duties more broadly to encompass virtually all employee speech, other courts defined official duties narrowly to escape the harsh consequences of Garcetti. The circuits also struggled with whether the holding in Garcetti should exempt certain circumstances, for example, whether an employee giving testimony is considered to be within the scope of his or her official duties. Ultimately, the resulting enigma of Garcetti created by the multiple variations interpreting Garcetti across the circuits needs a strict framework in order to facilitate unification.
The objective of this Note is to identify the problems and inconsistency between the circuit courts and propose workable framework that is consistent with the purpose of Garcetti. Part I of this Note will discuss Garcetti in excruciating detail. This will include the facts, analysis of the majority and dissenting decisions, and the policy underpinnings. Part II of this Note will provide a workable framework that corrects the problems created in the circuit courts. The framework aims to resolve the confusion between the circuits and define the scope of speech pursuant to official duties as those essential to the ability of performing the tasks an employer expects from an employee. Lastly, Part III of this Note will analyze the decisions of federal circuit courts that interpreted Garcetti and focus on why each of those interpretations are inconsistent with the purpose and scope of Garcetti.
The United States Supreme Court
Richard Ceballos (“Ceballos”) was employed by the Los Angeles County District Attorney’s Office as a deputy district attorney. In February 2000, a defense attorney contacted Ceballos regarding a pending criminal case and asked him to examine the affidavit involved because it allegedly contained serious inaccuracies. Ceballos remained unsatisfied when he questioned the warrant affiant, the deputy sheriff of Los Angeles County, about the affidavit that he used to obtain a search warrant. On March 2, 2000, Ceballos prepared a memorandum to his supervisors, Carol Najera and Frank Sundstedt, that explained his concerns and further recommended to dismiss the charges. A meeting attended by Ceballos, Sundstedt, Najera, the warrant affiant and other employees from the sheriff’s department followed after Ceballos submitted his memoranda. Despite the obvious misrepresentations contained in the affidavit, Sundstedt decided to proceed with the charges and terminated Ceballos based on his alleged inflammatory remarks contained in the memoranda.
Ceballos filed suit alleging that his supervisors violated his First and Fourteenth Amendment rights based on his memoranda dated March 2, 2000, and that he was a victim of retaliation based on the events noted above. The District Court rejected Ceballos’ assertion and concluded that he was not entitled to First Amendment protections because he wrote the memoranda pursuant to his official duties as a public employee. The Court of Appeals for the Ninth Circuit reversed, concluding that Ceballos established that his speech was a matter of public concern that warrants First Amendment protection. The Ninth Circuit utilized a balancing test weighing “Ceballos’ interest in his speech against his supervisors’ interest in responding to it” and concluded that the government failed to establish a significant governmental interest. Consequently, the adverse action was not “objectively reasonable” and Ceballos’ speech warranted First Amendment protection. The United States Supreme Court granted a writ of certiorari and reversed the decision of the Court of Appeals.
Although First Amendment rights are not completely surrendered by accepting employment, public employees have “no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.” Thus, public employees must accept certain restrictions on their freedoms in exchange for employment because the government, like any private employer, manifests heightened interests in controlling a significant degree over their employees’ actions in that they may affect efficiency. The Supreme Court explained that the relevant inquiry is to ask whether the employee’s speech was made pursuant to his or her official duties, or whether his or her speech was made as a private citizen voicing a matter of public concern. If the employees’ speech faced an adverse action by the employer, an employer must show an “adequate justification for treating the employee differently from any other member of the general public.” Essentially, Garcetti holds that any statement made pursuant to an employee’s official duties are not made as a private citizen, and consequently, does not warrant First Amendment protection as to immunize all communications from managerial discipline. Thus, the nature of the job and responsibility assigned to the employee is critical in determining the extent of an employer’s ability to restrict the constitutional right of free speech to reprimand employees based on that speech and when he crosses that line.
The Supreme Court noted that just because official job duties sometimes require employees to speak or write, the employee is not automatically shielded from the supervisor’s evaluation of his performance. The fact that his speech concerned his employment and that he expressed his views in his own office recommending what he believed to be the best course of action are tantamount. It is most important to note that Ceballos’ legal memoranda, or speech, is linked to his professional duties as deputy district attorney making it easy to ascertain the connection.
Over a quarter of a century ago, Chief Justice Rehnquist rejected “the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.” Garcetti might have been a bitter pill to swallow for Chief Justice Rehnquist, however, he would not be alone. For Justice Stevens, the proper inquiry to whether the First Amendment protects employees’ speech from his or her governmental employer, “is ‘Sometimes’ not ‘Never.’” In his dissent, Justice Stevens rejects the different categorization between speech made as a citizen or as an employee. While he supports the majority in that supervisors should be able to take corrective action when employees act in an “inflammatory or misguided” manner, Justice Stevens fears that employers may take adverse action when the speech is “unwelcome” solely because the supervisor does not want certain facts revealed. Justice Stevens finds that Garcetti’s holding is immaterial. He argues that courts have never had a problem applying or denying First Amendment protections to an employee’s speech, therefore, “it is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description.” He concluded that Garcetti created a perverse incentive for employees to express concerns publicly before addressing those concerns with his or her employer first.
In a separate dissenting opinion, Justice Souter sharply criticized the majority for not applying the Pickering balancing test. Although he contends that First Amendment protection is not always absolute, an employee’s unwelcome, though significant, speech made as an employee speaking “with a citizen’s interest, is protected from reprisal unless the statements are too damaging to the government’s capacity to conduct public business to be justified by any individual or public benefit thought to flow from the statements.” Therefore, utilizing the Pickering balancing test would have been the proper application when an employee speaks critically of his governmental employer. Justice Souter argues that categorically separating speech based on its interest from a citizen and that of an employee “ignores the fact that the ranks of public service include those who share the poet’s ‘object … to unite [m]y avocation and my vocation.’” For that reason, Justice Souter argues that employees who speak pursuant to their official duties place a high value on his or her own right to speak and raise civic interest higher. It is counter-intuitive to suggest that the public interest evaporates when a public employee is speaking pursuant to his official job duties. He explains that there is no “adequate justification for the suppression of potentially valuable information simply to recognize that the government has a huge interest in managing its employees.” While Ceballos’ statements are indisputably pursuant to his official duties, Justice Souter contends that denying his own interest in commenting on governmental operations also deprives the community of informed opinions. By denying the use of the Pickering balancing test to weigh the interests of Ceballos’ speech against the governmental agencies interest in restricting it, the majority chose an “odd place to draw” its line.
Justice Breyer agreed with the majority in that government employers, not the courts, have managerial discretion in supervision and discipline over government employees. He also agreed with his dissenting co-justices in that this case requires a Pickering balancing test, however for two different, though significant reasons. First, Cebballos’ speech at issue was “professional speech—the speech of a lawyer.” He reasoned that professional speech is “subject to independent regulation by canons of the profession [and] provide an obligation to speak in certain instances. [W]here that is so, the government’s own interest in forbidding that speech is diminished.” Second, the government’s professional is required to abide by the Constitutional obligations. For example, [a] prosecutor has a constitutional obligation to learn of, to preserve, and to communicate with the defense about exculpatory and impeachment evidence in the government’s possession.” Justice Breyer concluded that professional speech deserves special protection mandated by the Constitution; otherwise, the purpose and integrity of the speech will be diminished.
PULLING APART GARCETTI
Prior jurisprudence established that both public and private employers need a certain degree of control over official communications made by employees to ensure accuracy and sound judgment for high performance. Furthermore, it is well settled that a governmental agency in the capacity of an employer has broad discretion in restricting employee speech when that speech may potentially affect the entity’s operation. Garcetti noted the need for the distinction of the government acting as an employer:
Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees’ official communications are accurate, demonstrate sound judgment, and promote the employer’s mission.
The primary purpose of restricting public employee’s speech was to ensure that the speech would not compromise or impair the proper performance of the governmental functions. Consequently, public employees must face only those speech restrictions that are necessary for employers to ensure efficient and effective operation. Additionally, exposing governmental inefficiency and misconduct is an essential constitutional freedom. “Indeed, [w]ere [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues.”
The Court directed employers to “[be] receptive to constructive criticism offered by their employees.” The Garcetti Court explained that employee’s complaints are better resolved in other ways provided by the employer:
A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.
It is true that the First Amendment restricts governmental employers from reprimanding public employees expressing views that address matters of public concern. However, the First Amendment does not protect public employees in every instance they speak or shield them from discipline when they speak as an employee pursuant to his or her official duties. When an employee speaks pursuant to his or her pursuant official duties, he or she speaks as an employee, and consequently barred from First Amendment protection to guarantee that governmental employers can operate smoothly without undue interference. Thus, the Garcetti Court concluded that the supervisors had the authority to terminate Ceballos if they believed his memo was too inflammatory or misguided.
THE NEW STANDARD PRACTICE
In establishing whether a public employee’s speech is entitled to First Amendment protection, the threshold inquiry is to determine whether the employee spoke within the scope of his or her official duties or as a citizen on a matter of public concern. The circuit courts have produced vastly different interpretations of the scope of official duties in Garcetti. The greatest disparity between the circuits stems from defining what constitutes employee speech pursuant to his or her official duties. Typically, circuits fall into either broad interpretations or narrow interpretations of the scope encompassing an employee’s official duties.
The purpose of the First Amendment was not to vest in employees the right to perform a job however he or she sees fit. In contrast, the First Amendment protects the integrity of the marketplace of ideas that fosters truth by allowing freedom of thought and new ideas into the marketplace. Although the First Amendment “invests public employees with certain rights, it does not empower them to ‘constitutionalize the employee grievance.’” The Court in Connick explained that protected speech must address a matter of political, social, or other community concern distinguishable from speech made as an employee solely on matters of personal interest that lacks constitutional protection in an employer’s adverse action. The public concern query hinges on the entirety of the content, form, and context of a given statement followed by a balancing test that weighs the state’s interests in providing efficient governmental services against the individual’s interests in his or her speech. The First Amendment prohibits public employers from incidentally or intentionally leveraging employment to restrict the liberties employees enjoy in their capacities as private citizens. Accordingly, employees must face only those speech restrictions necessary for an employer to ensure efficient and effective governmental operation. For the employer to justify restricting the employee’s speech, the employer must show that the speech will create disruption and inefficiency in the workplace. The First Amendment compels “a delicate balancing of the competing interests surrounding speech and its consequences.” After eliminating the possibility of impermissible infringement on vested liberties of private citizens, the employee’s speech no longer warrants First Amendment protection. Thus, an employee who merely performs the tasks of his or her official duties is categorically barred from claiming that the speech addressed a matter of public concern; in that respect the employee is no longer afforded the same degree of First Amendment scrutiny.
FROM ENIGMA TO FRAMEWORK
A PROPOSAL OF GUIDANCE TO THE “PRACTICAL INQUIRY”
The Garcetti Court declined to establish framework to define the critically important determination of what constitutes speech within the scope of the public employee’s official duties. Although the Court hinted at its expectations in administering the Garcetti rule, the nebulous standard created inconsistency between the circuit courts. The decision gave sparing guidance stating, “[i]t relates only to the expressions an employee makes pursuant to his or her official responsibilities, not to statements or complaints […] that are made outside the duties of employment.” However, the true test to determine the essential character of employee speech is to question whether the speech “owes its existence to a public employee’s professional responsibilities.” In that regard, the employer created the subject matter while the employee simply carried out the assigned task. After declining to provide a formal framework, the Court left the threshold inquiry to the lower courts with bare guidance:
The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.
A practical inquiry is seemingly unambiguous and common sense, however, Ceballos’ factual situation that the Court confronted was unambiguous and clear-cut. His memorandum was literally speech pursuant to an official duty required by his job. The factual scenarios the circuits encountered were not as clear as those found in Garcetti.
The facts of Garcetti suggest that the scope of official duties should be construed narrowly. However, defining official duties only as job requirements would be too narrow for the Court after its dismissal of explicit written job requirements. Moreover, the Court specifically reserved the right of employers to restrict employee’s speech when it would impede smooth and effective operation. On the other hand, job relatedness seems too broad; defining official duties too broadly would frustrate the Court’s concerns on infringing employee’s vested liberties in the First Amendment. In the alternative of a more definitive definition provided by the Court, the scope of official duties should be defined as those duties that are essential to perform the job. Essential duties are those tasks an employer expects to be performed by an employee but not necessarily a part of written or formal job description. The essentialness of a specific job duty hinges on the employees’ ability to perform the day-to-day job of which employers expect to be performed. Therefore, when evaluating whether an employee’s speech was pursuant to his or her official duties, one must ask whether the speech “owes its existence to a public employee’s professional responsibilities.” There must be a significant relationship between the speech and the essential duties of an employee before First Amendment protections should be limited. The speech must connect to the employer’s expectations of the employee’s day-to-day tasks. For example, an attorney’s memorandum of law has a significant relationship to the attorney’s ability to perform his job, that is, being an attorney of which his employer expects to be performed. Furthermore, if the speech concerns professional, ethical, moral obligations, or that is “important to the individual speaker, valuable to the public, and compatible with the government’s over all aims” it should be given heightened scrutiny under First Amendment jurisprudence.
Moreover, employers need to create an internal complaint forum with strict procedures in a neutral forum for employee grievances without imposing bias or unlawful retaliation. It seems to be counterintuitive to force employees to seek outside assistance in fear of losing his or her job by speaking to the supervisor about employment related concerns. An employee should not be deprived of bringing suit if any such provision provided by law, state or federal, protects the employee in the lawful activities of which resulted in adverse action. For example, whistle-blower laws, Title VII claims, Sexual Harassment claims; Retaliation; and Professional or Ethical Obligations. This list is not exhaustive but merely illustrative.
THE CIRCUIT COURTS SPLIT
BROADENING THE RULE OF GARCETTI
Despite the “rigid and formalistic” rule articulated by Garcetti, the circuit courts inherited broad interpretive powers in construing the meaning and scope of Garcetti. Following the decision, the circuit court interpretations polarized Garcetti’s empty guidance. On one end, appellate panels faithfully abided to an expansive scope of speech pursuant to official duties. By adopting an expansive understanding of Garcetti, certain circuit courts broadly defined official duties to include speech that is related to the employee’s employment. Speech relatedness to an official duty is not the rule articulated in Garcetti. A broad interpretation of the scope of speech made pursuant to official duties ultimately chills protected speech because it forces employees to steer far wider from the realm of lawful speech. The court warned against employers restricting employees’ rights by creating excessively broad job descriptions. If Garcetti explicitly prohibited employers from creating excessively broad job descriptions, why should courts expand the scope of official duties to encompass all related employment activities solely to connect the speech to the duty? This strikes at the very core of the First Amendment, a liberty enjoyed by employees that the Garcetti Court rigorously preserved. Thus, interpreting official duties too broadly impermissibly expands upon the scope of Garcetti. As one commenter noted,
Garcetti touches every person who makes the decision to become a public servant—teachers, bus drivers, police officers, public defenders, prosecutors, politicians-and strips them of their constitutional protection for speech made pursuant to their official duties. Garcetti simply affects too much speech.
For example, in the Fifth Circuit, Urbano Herrera and the Communications Workers of America alleged that the hospital employer violated Herrera’s First Amendment rights by disciplining her for violating the its uniform non-adornment policy. Herrera amongst other union members wore buttons on their uniforms to promote membership of the union. The court acknowledged that while the content, form, and context of the speech qualifies as a matter of public concern, the speech hindered the relationships between union members and non-union employees. The court considered certain factors to determine whether the employees’ pro-union speech was made as an employee in his or her official capacity. For example: the speech was not made in a traditional public forum; it was not equivalent to an expression of a particular idea between friends; and the speech only occurred when the employee was on “on the clock” at the hospital in uniform.
The Fifth Circuit noted that the employees were not speaking as citizens on matters of public concern and concluded, “to the extent that the ‘speech’ at issue here communicated anything to anybody it did so only as incident to the button wearer’s on the clock performance of his duties as a Hospital employee in the Hospital’s uniform.” Furthermore, the Fifth Circuit reasoned that the restriction facially appears to be grounded in some reasonable justification to treat public employees differently from members of the general public. Thus, the Fifth Circuit held that restricting employees from wearing union buttons was in the permissible purview of Garcetti.
Rather than determining if Herrera spoke pursuant to an official duty, the Fifth Circuit expanded Garcetti beyond an “official duty” to include matters merely related to her employment. The court was unjustified its departure from Garcetti. Union activities are indisputably matters of public concern. Although, union membership is related to employment on in that it protects employees from perverse employer actions, it is not related to an official duty. Union activities are distinct from official duties. In other words, union activities are not essential duties an employer expects to be performed by an employee. In essence, the Fifth Circuit deviated from Garcetti and expanded permissible restrictions on employer speech too broadly. That expansion impermissibly infringed on Herrera’s right to engage in lawful union activities.
Arguably, Garcetti stripped First Amendment protections from employees in their ability to complain to internal authorities. Although the court deferred such conflicts to existing federal laws where they could be more appropriately resolved, the broader scope of official duties led courts to foreclose further claims against the employer. Many broad interpretations of Garcetti eliminated an employee’s confidence in raising legitimate concerns in fear of termination. Although Garcetti suggested that employers provide an outlet for aggrieved employees, they often do not do so. Freitag v. Ayers is illustrative of this. Here, the Ninth Circuit precluded an employee’s complaints from the arena of protected speech. In that case, a corrections officer at a maximum-security prison was disciplined and subsequently terminated in retaliation for her complaints about sexual harassment perpetrated by inmates. Despite repeated internal complaints, her superiors ignored her grievances leading her to write letters to a state senator amongst other officials for intervention and help. In a seemingly anomalous result, the Ninth Circuit concluded that while her communications to the state officials were protected under the framework of Garcetti, the internal complaints to her superiors lacked constitutional protection. In other words, the appellate panel concluded that internal complaints are statements pursuant to her official duties while the complaints to state officials are not.
From this illustration, it is emphatically clear that the guidance Garcetti directed to employees did not resolve the ongoing battles between employer/employee internal disputes. Garcetti stands for employers’ authority to restrict an employee’s speech to protect the efficiency and effective operation of that agency. Therefore, broadening Garcetti, as in the court did in Freitag, does not accomplish the goals of which Garcetti sought to rectify. This is not an instance similar to the one Garcetti confronted, namely, where a disgruntled employee expressed his complaints in an inflammatory way. Conversely, the employee in Freitag was legitimately concerned about her safety when she complained of sexual harassment by coworkers. The court should not have found the employee’s complaints to be related to her “official duties” subsequently barring her claim under Garcetti. Most significantly, this interpretation prevents employees from raising legitimate concerns that should be resolved by an employer. Although sexual harassment is only one issue employers should be aware of and concerned with, complaints concerning safety, corruption, theft, and physical abuse amongst others are also prevalent. The legitimate concerns of employees should be welcomed without fear of discipline so that employer awareness leads to resolution.
Both Freitag and Mills illustrate one of the down falls in interpreting Garcetti too broadly; that is, creating an incentive for employees to avoid internal complaints in fear of losing one’s job. This result is undeniably unfair, especially in view of the principles and purpose of the First Amendment. It seems counterintuitive that employees are stripped of their First Amendment protections when raising complaints internally; however, employees have an outlet when speaking “publicly” or outside of the chain of command to complain, despite the same protections are unprotected under Garcetti in an employment context. Therefore, an unbiased internal complaint forum should be mandated by state law to avoid unnecessary litigation, retain quality employees, and sort through the legitimate and illegitimate complaints.
In light of Garcetti, reporting internal corruption is also problematic when the reporting employee must face renowned, though crooked, officials. The situation faced in Dunleavy v. Wayne County Commission, involved a county auditor reported rampant political corruption in the county to the media and law enforcements. The auditor alleged that his employment was not renewed in retaliation of his personal investigation of fraud and corruption and connection with the FBI as a confidential informant. Despite the county auditor’s attempts to convince the court that he spoke to the media and law enforcement as a public citizen, not as an employee, the court determined that he spoke pursuant to his official duties: “while Plaintiff’s job duties may not have explicitly required him to talk to the media and law enforcement, both parties agree that they did require him to make his audit reports available to the public.” The court reasoned that it would be “meaningless” to make the audits public if the plaintiff never interacted with the media to explain the technicalities.
Although it is interesting to see exactly how the court concluded that reporting corruption was relevant to the county auditor’s official duties because it departed from the “practical inquiry” articulated in Garcetti. It makes sense to require a county auditor to make his audit reports publically available, just as any public official would be expected to do of his or her work. Similarly, interacting with the media regarding the audit reports, although more geared towards a broader scope of Garcetti’s official duties, does not seem too farfetched to reach one’s official duties. However, explaining one’s allegations of fraud and corruption and reporting political corruption publicly is displaced from the essential character of auditing in that it parts with an employee’s ability to do the job he was employed to do: auditing the county and producing its audit report. While expectations and requirements are frequently used to describe the scope of official duties, Garcetti does not hold that an official duty is established through its meaningful effect. The framework in Part II proposed that the relevant inquiry should be whether the speech is essential to the employee’s ability to perform the job, not manifesting a meaningful job performance. It is too broad because it prevents employees from raising concerns of fraud and corruption in fear of losing his or her job. Unlike Ceballos’ inflammatory memoranda to his supervisors, the auditor in this case announced his allegations to a public audience, the media, and an outside law enforcement agency, with a specific purpose of awakening the public’s awareness of public official misconduct. Garcetti specifically noted the importance of exposing such conduct: “[w]ere [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues.”
The Eleventh Circuit, in Khan v. Fernandez-Rundle, a former assistant state attorney confronted a troubling situation putting his professional credibility and ethical obligations at stake. The assistant attorney refused to comply with the directions of supervisor who instructed him to lie to a state trial judge in two separate instances. The first incident transpired when the supervisor told him to lie about being prepared for trial, when in fact he was not. The second was to answer the judge’s questions untruthfully in regards to a prior plea agreement in a criminal case. The assistant attorney spoke truthfully to the judge in both circumstances and was shortly fired afterwards. The court determined that the assistant attorney “can prove no set of facts which would allow [him] to prevail” because his in court statements “‘owe[d] [their] existence’ to his role as a government lawyer.” The Court argued that defining official duties as “‘expected’ betray[ed] a tortured reading” of Garcetti in that his in-court statements exist only because he represents his client as an attorney. Furthermore, the court explicitly refrained from a limited interpretation of the scope of official duties and rejected the assistant attorney’s argument to define official duties narrowly as those employers “expected” an employee to perform. However, there are no reasonable justifications for Courts to find that lying to a state judge is within the scope of employment whether interpreting broadly or narrowly. An employee’s responsibilities can only reach so far but this interpretation exceeds that threshold by far. Arguably, in-court statements could qualify as an employee’s official duties. However, forcing an employee to jeopardize his or her own reputation in court by requiring the employee lie is unfathomable not to consider the ethical and professional responsibility considerations. Firing an employee after putting his or her reputation on the line and subsequently claiming that forcing an employee to lie is within the scope of official duties of employment to avoid escape liability is a tortured reasoning of Garcetti.
Third parties newly added to employment environments also present obstacles in defining an employee’s official duties of employment. The Sixth Circuit grappled with whether or not an employee’s speech to a third-party consultant in an employment environment should be considered part and parcel of the employee’s official duties. In Weisbarth v. Geauga Park District, a park ranger employed by Geauga Park District (“GPD”), alleged that she was wrongfully terminated based on a conversation with a consultant hired by GPD. GPD hired the consultant to evaluate the morale and performance of the workplace environment by conducting interviews with employees. In her interview, a park ranger spoke about her intent to appeal a disciplinary letter she had recently received and expressed her honest opinion of the morale and performance. The consultant described the park ranger as having a personal distaste for most of her co-workers and labeled her as a “source of friction.” The court rejected the park ranger’s arguments that distinguished Garcetti as “unfounded because the pursuant-to-official-duty inquiry ultimately cannot be completely divorced from the content of the speech.” The court held that the determinative factor is not where or to whom the employee speaks to, but if the employee’s statement was related to his or her employment and concluded that the conversation between the park ranger and the consultant was in fact within the scope of her official duties of employment.
The holding of the Sixth Circuit analyzed the threshold inquiry incorrectly by determining whether the speech was related to the employment. As noted in the framework in Part II, the use of “related to” creates a broader scope of official duties than Garcetti mandates, and ultimately catches protected employee speech that was not meant to be restricted. In this case, co-worker gossip and talk of future actions is not essential to the job for which the employee was hired to do or expected to perform. The proposed framework above would find that the involvement of a third-party consultant irrelevant to the inquiry, thus speech pursuant to an official duty could be essential to the employee’s ability to do the job. Otherwise, speech and interactions with clients and customers would be out of reach. However, it is unsettling to define the scope of official duties to include an employee’s opinion to evaluate the morale and performance of the workplace environment performed one time, unexpectedly, and by an unknown man unrelated to job performance expectations.
Cases interpreting employers’ nebulous expectations broadly tend to over expand the scope of Garcetti. Springer v. City of Atlanta is perhaps the most expansive interpretation of “official duties” yet. As the executive director of the Atlanta Workforce Development Board, the plaintiff’s job duties included “policy and system building, member support, external relations, administration and compliance.” He reported the agency’s mismanagement to the mayor and city legal counsel, although he contends that reporting mismanagement is not required by his job. Regardless, the court was unpersuaded and concluded that reporting mismanagement was an employee obligation because “Georgia law imposes on employees ‘a duty of loyalty, faithful service and regard for an employer’s interest.’” Therefore, the court held that the director’s statements regarding mismanagement “spoke out of ‘regard for his employer’s interest’…[out of an] “obligation as an employee to engage in the speech at issue.” Holding that a state’s law, separate from the governmental agency’s rules and separate from the expectations of a particular job, would effectively eliminate all speech rights of public employees. The excessively expansive interpretation in Springer seemingly precludes whistleblower protection through strict adherence to Georgia law that expects government employees to uphold their employer’s interest, whatever that may be. The overbroad expansion of Garcetti is clearly evident in Springer. Although compliance with state laws as a matter of citizenship is a given, incorporating those laws into “official duties” is inconsistent with the primer of Garcetti. Significantly, the Georgia law required employees to protect Georgia’s interest as an employer—an excessively broad job description that Garcetti explicitly barred.
The Eleventh Circuit followed the same expansive reasoning in Phillips v. City of Dawsonville. In that case, the court held that a public employee serving as a city clerk and a city treasurer acted pursuant to her job duties when she reported a former mayor’s misconduct. Her complaints, including the mayor’s sexual harassment of a coworker and his personal use of city resources, resulted in her termination. The court held that because her job required her to inquire about and report any potentially inappropriate use of city funds, she is not protected by the First Amendment in her retaliation claim. The court declined to address whether “all city employees owe a duty of loyalty to the city as a matter of Georgia state law.” This broad expansion of “official duties” makes one wonder what would not be considered within the scope of official duties.
Garcetti dealt with factually unique scenarios where the contested speech, the memoranda to his supervisors, was actually required by Ceballos’ official duties as a deputy district attorney. Despite the unique factual limitations the court faced, the court declined to provide framework to determine what constitutes “official duties” because Ceballos’ “official duties” were undisputed. Generally, the circuits that broadly interpret the scope of official duties expand Garcetti by defining employee speech related to the job or its official duties and hold it is not protected by the First Amendment. Thus, the circuit courts expanded the application of Garcetti far beyond the scope to speech that is related or generally consistent to the employee’s official duties. As demonstrated above, this interpretation creates problems, for example, undermining the core principles of First Amendment speech by chilling speech that would otherwise be lawful, such as complaints of sexual harassment, in fear of termination. Therefore, the courts broadly interpreting Garcetti limits speech protection of government employees effectively eliminating not only First Amendment protections, but also other laws protecting employees from retaliation. Employees will be deterred from expressing legitimate or important concerns in fear of discipline or retaliation for merely speaking on matters that could be construed as an “official duty.” Although the restriction was intended to protect the efficiency of the workplace, expanding the scope of official duties to all activities related to employment also hinders the attractiveness of government jobs by destroying a sense of security in one’s job. Employees should not be forced to steer away from protected areas of speech in fear that day-to-day speech my lead to termination.
NARROW INTERPRETATIONS OF GARCETTI
On the opposite side of Garcetti’s interpretive spectrum, many circuits construed the scope of official duties much more narrowly circumscribing speech that is required by the job. Although in sharp contrast to the circuits subscribed to broader interpretations, narrower official duties tends to be more consistent with the holding of Garcetti. Narrower interpretations define official duties by its requirements, a method the Supreme Court noted was not necessarily reflective of one’s official job duties. Ceballos was disciplined for statements he prepared in a memorandum to his supervisors, a task required by his official duties as a deputy district attorney:
“The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. That consideration-the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case-distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline.
However, interpreting too narrowly can also lead to misconstruing Garcetti. For example, in Barclay v. Michalsky, a nurse criticized her co-workers to her hospital employer on the use of “excessive restraints” for psychiatric patients. The hospital supervisors suspended her without pay, demoted from her position as a charge nurse, and transferred her to a unit where she was limited to menial tasks or assigned to distribute lunch and answer phone calls. Despite that it is very clear that reporting patient health and safety issues as well as filing complaints for misconduct of other employees is within the scope of official duties, those duties are not explicitly required by her employer. The nurse’s retaliation claims were not barred by Garcetti because her complaints were not required by her employment responsibilities. In fashioning the interpretation of Garcetti, the court not only held that employee speech must be required pursuant to her official duties, but further held that an employee must have been aware of the job requirements and speech related duties before her claims are categorically barred. The court explained that the nurse lacked proper training to report violations, was repeatedly told not to file the reports, and there was no form for filing such report available. While the outcome of this decision makes sense, the method the Court used in getting to its decision is problematic. As noted above, Garcetti does not hold that speech pursuant to one’s official duties must be an official duty that is required. Barclay holds that official duties not only must be required, but that the employee must also aware of such requirement. The facts of this particular case do not demonstrate the inadequacy of such a narrow rule, however, Garcetti was adamant in granting government employers broad discretion in restricting employee speech when it affects the efficient and effective operation of the workplace. Therefore, this rule is underinclusive and undermines the ability of employers to ensure the smooth running of its governmental function.
Likewise, in Pittman v. Cuyahoga Valley Career Center, the Northern District of Ohio held that the applicability of Garcetti is a narrow one and only applies in circumstances where the employee spoke as a requirement of the job. In this case, a substitute teacher had written multiple memos to the principal of that school complaining about the parking problem. The school discharged the substitute teacher, who brought suit alleging racial discrimination and retaliation. The court determined that because the memo was not required by his official duties, the contested speech does not bar his claim in light of Garcetti. The court limited the scope of the decision and rejected the broader interpretations of other circuits. The court explained that while other interpretations of Garcetti hold that “statements made by public employees will never be protected if the employee is acting within the scope of his or her employment while making the statements, this Court interprets Garcetti more narrowly.” The court concluded that although his statements were related to his employment, they were not required as his official duties and therefore, could not be determinative in barring his claim. This case is analogous to the decision in Barclay where the seemingly pleasing outcome hides the problems of the rule that official duties must be required by an employer to foreclose First Amendment protections.
In Deluzio v. Monroe County, a case worker’s statement to his supervisor regarding the treatment of his child client was considered by the Court to be made as a citizen rather than as an employee pursuant to his official duties. The court recognized that the case worker was “motivated by professionalism and ethics,” not because it was expected of him as a case worker, but as a citizen who may be morally compelled to report concerns to his supervisors that a child’s welfare is at risk. Additionally, the case worker complained about the proposed budget cuts that would impair agency services upon children depend. In analogizing the statements regarding the budget proposal to public city council meeting, the court found that the speech was similarly motivated by moral obligations of a citizen. “[I]f the content and circumstances of a private communication are such that the message conveyed would be relevant to the process of self-governance if disseminated to the community, that communication is public concern speech even though it occurred in a private context.” Thus, the court held that the First Amendment protected the caseworker’s statements, both the child’s welfare and the proposed budget, from unjustified government retaliation.
In the First Circuit, five correctional officers alleged that a sheriff violated their First Amendment rights when he suspended, transferred, and stripped the seniority rights of the officers for participating in a union picket. The court weighed heavily in favor of the officers’ speech because they were acting as citizens speaking on “matter[s] of political, social, or other concern to the community.” Moreover, the court concluded that content is preeminent, stating that, “if the employee’s speech is on a topic that would qualify, ‘on the basis of its content alone’ as a matter of inherent public concern, we needn’t inquire further.” Speaking in regards to the union alone is insufficient to qualify as an official duty. However, the court noted that the picket touched on newsworthy subjects designed to allow public expression criticizing management, specifically targeting the sheriff, a politically elected official, to alert the public of certain government misconduct.
In his own defense, the sheriff claimed that suspending the officers was essential because their presence would compromise the safety of other employees. He argued that the plaintiffs’ statements to fellow officers are only their “personal grievances” with management and spoken solely out of self-interest. The court rejected the sheriff’s assertions and concluded that he was not acting to avoid or prevent disruption of the workplace. The court determined that even though the officers’ speech would benefit them personally, it was not fatal to their claim. The court responded by clarifying that the statements were not “muttered complaints” about the sheriff or his administration, but rather “responses to questions about-or requests for support of-an upcoming picket.” The court noted that if it construed the content of the statements as an indirect criticism of his behavior or of the administration’s stance in the collective bargaining process, neither would “automatically strip the speech of its public qualities.” “Although it would be naive to think that the plaintiffs in this case were moved to speak solely by the spirit of civic-mindedness, our cases do not mandate selflessness on the part of plaintiffs.”
The impact of Garcetti across the federal circuit courts demonstrates the need of a more comprehensive and unified framework. Attempts to define “official duties” have resulted in inconsistency and misconstruction of the Garcetti rule. A broad interpretation of Garcetti ignored the explicit prohibitions of the court to avoid employers’ abuse in creating employee job descriptions. The courts have effectively done the same by expanding the scope of “essential” duties of an employee to anything related to one’s employment. That standard has proven to be arbitrary, overinclusive, and unfair. The narrower interpretation of Garcetti did not have the same scathing effect. The courts are not bound by job descriptions or requirements, but by using requirements as a guideline, the outcomes are less perverse. As the dissenting opinions have shown, Garcetti’s application has grave and perverse consequences in the arena of public employees. To resolve the inconsistencies, the proper standard courts should implement when confronted with a public employee’s speech issue is to ask what is essential to the ability to perform the job responsibilities expected by an employer.
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