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.Upholding his dismissal, the court stated that:[t]he fact that Nixon s statement was unauthorized.and that speaking tothe press was not part of his regular job duties is not dispositive.Nixon sstatement was made while he was performing his job, and the fact that Nixonperformed his job incorrectly, in an unauthorized manner, or in contraven-tion of the wishes of his superiors does not convert his statement at theaccident scene into protected citizen speech.Garcetti gives the government carte blanche authority to retaliate againstemployees who report wrongdoing pursuant to their official duties, even if4For a sampling of cases treating a police officer s work-related speech as pursuant to hisofficial duties, see, e.g., Foraker v.Chaffinch, 501 F.3d 231 (3d Cir.2007) (state trooper scomplaint, made up the chain of command, about hazardous health and safety conditions inthe workplace); Vose v.Kliment, 506 F.3d 565 (7th Cir.2009) (police sergeant s complaintthat detectives in a different unit were violating department procedures for obtaining searchwarrants); Sigsworth v.City of Aurora, Ill., 487 F.3d 506 (7th Cir.2007) (police detective sreport to supervisors that members of drug investigation task force had broken the law bytipping off suspects); Spiegla v.Hull, 481 F.3d 961 (7th Cir.2007) (prison guard s reportmade to assistant superintendent of suspected security lapse by immediate supervisor);Bradley v.James, 479 F.3d 536 (8th Cir.2007) (investigative report containing findings thatsuperior officer was intoxicated on the job ); Mills v.City of Evansville, Indiana, 452 F.3d646 (7th Cir.2006) (criticism of chief s plan to reduce the number of crime prevention offi-cers under officer s command); Haynes v.City of Circleville, Ohio, 474 F.3d 357 (6th Cir.2007) (internal complaint about cuts in dog training budget); Freitag v.Ayers, 468 F.3d 528(9th Cir.2006) (correctional officer s internal complaint of sexual harassment by inmates);Nixon v.City of Houston, 511 F.3d 494 (5th Cir.2007) (on-duty, uniformed police officer sunauthorized statements to the media at accident scene); Williams v.Riley, 481 F.Supp.2d582 (N.D.Miss.2007) (internal report of prisoner abuse committed by fellow officer).5See, e.g., Sassone v.Quartararo, 598 F.Supp.2d 459 (S.D.N.Y 2009); Paola v.Spada, 498F.Supp.2d 502 (D.Conn.2007); Densmore v.City of Maywood, 2008 W L 5077582 (9thCir.2008); Ventura v.Town of Manchester, 2008 WL 4080099 (D.Conn.Sept.2, 2008).6See, e.g., Nixon v.Houston, 511 F.3d 494 (5th Cir.2007); Vose v.Kliment, supra note 4;Mills v.City of Evansville, Indiana, supra note 4; Abdul-Rahman v.Walker, 567 F.3d 1278(11th Cir.2009).7Supra note 6. § 10.2 CONSTITUTIONAL RIGHTS AND LIABILITIES IN THE WORKPLACE 491their reports are accurate.In Sigworth v.City of Aurora, Illinois,8 a policedetective who reported to his supervisors that he believed that members ofhis drug investigation task force had broken the law by tipping off suspectsregarding arrest warrants, was removed from the task force and passed upfor a promotion.The court denied his First Amendment claim on the groundsthat reporting wrongdoing to his supervisor fell within the scope of his offi-cial duties.Cases like Sigworth v.City of Aurora, Illinois are common.9Garcetti makes it safer for government employees who fear retaliation tovoice their concerns to an outside agency, instead of expressing them inter-nally, because they have greater First Amendment protection.In Freitagv.Ayers,10 for example, a female corrections officer in a maximum-securityprison filed numerous incident reports complaining that two prisoners repeat-edly masturbated in her presence.When nothing was done to address her griev-ance, she complained up the prison hierarchy to the director of the CaliforniaDepartment of Corrections, and still nothing happened.She eventually wrotea letter to a state senator chronicling her sexual harassment by prisoners andher department s failure to take any corrective action.The senator forwardedher letter to the Inspector General s Office, which investigated and wrote areport supporting her allegations.She was terminated in retaliation.The Courtof Appeals ruled that the incident reports and complaints made inside theDepartment of Corrections lacked First Amendment protection because theywere made pursuant to the correction officer s official duties, but that her com-plaint to an outside agency was protected. It certainly was not part of herofficial tasks to complain to the senator or the [Inspector General] about thestate s failure to perform its duties properly, and specifically its failure to take8Supra note 4.9See, e.g., Vose v.Kliment, supra note 4 (police sergeant s complaint that detectives inanother unit were violating department procedures for obtaining search warrants wasmade pursuant to official duties); Morales v.Jones, 494 F.3d 590 (7th Cir.2007) (policeofficer s allegation of misconduct by superior made to District Attorney was pursuant toofficial duties); Spiegla v.Hull, supra note 4 (prison guard s report to assistant super-intendent of suspected security lapse by immediate supervisor unprotected); Haynesv.City of Circleville, Ohio, supra note 4 (police canine handler s internal memorandumto chief protesting cuts to dog training budget unprotected); Freitag v.Ayers, supra note 4(correctional officer s internal complaint of sexual harassment by inmates unprotected);Williams v.Riley, supra note 4 (police officer s internal report detailing beating of pris-oner by fellow officer unprotected); Harrison v.Oakland County, 612 F.Supp.2d 848(E.D.Mich.2009) (report to supervisor about co-worker s sexually inappropriate conductunprotected).10Supra note 6.See also Eberz v.Oregon Dept.of State Police, 2008 WL 69 (D.Or.2008)(finding that a police officer s duties required him to report misconduct to his supervisor, buta report of the alleged misconduct to the Attorney General was protected speech); Moralesv.Jones, supra note 9 (police officer s allegation of misconduct by superior to DistrictAttorney was unprotected because made as part of his duties, but subsequent depositiontestimony in a related civil suit was protected speech). 492 CONSTITUTIONAL LAW § 10.2corrective action to eliminate sexual harassment in its workplace.Rather, itwas Freitag s responsibility as a citizen to expose such official malfeasanceto broader scrutiny.Accordingly, in these instances, for purposes of the FirstAmendment she spoke as a citizen. As Freitag v.Ayers illustrates, whether speech is undertaken as anemployee or as a citizen generally depends on the choice of forums.Whenconcerns are expressed internally, the speech is generally treated as madepursuant to job responsibilities because this is what government employeesare expected to do.When the same concerns are expressed to an outsideagency or the media, the speech is likely to be viewed as undertaken in therole of a citizen because the employee is acting beyond his official duties.Consequently, the safest course for government employees who fear retalia-tion is to bypass internal reporting procedures and go directly to the publiccontact an elected public official, call a press conference, write a letter to theeditor, or complain to an independent government agency.11 The Garcetticase makes it impossible for conscientious government employees to speakin the best interests of the public without compromising their loyalty andprofessionalism.B [ Pobierz caÅ‚ość w formacie PDF ] |
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