By Anne Lowe

WHISTLEBLOWERS/FREE SPEECH – Government employees are only entitled to First Amendment protection for what they say under certain circumstances, an article in this month's issue of California Lawyer says—namely, when they step outside their jobs to speak up as citizens.


As public servants, government employees work under a paradoxical relationship with freedom of speech: When are they acting in their official capacity, and when are they exercising their free speech rights as a private citizen?

The U.S. Supreme Court highlighted the difference this can make in its ruling in Garcetti v. Ceballos (2006). Richard Ceballos was a Los Angeles deputy district attorney who issued an internal memo opposing his department’s actions and also testified at a hearing—for a defendant—that his office acted improperly. After the hearing  he was reassigned and refused a promotion.

The Supreme Court disagreed with Ceballos’ contention that his speech was protected by the First Amendment, saying he made his statement as part of his official duties.  As the California Lawyer article explains, however, the answer may not be as clear as the case makes it seem.

Under the Garcetti test, the scope of an employee's job duties is key. Not surprisingly, the Seventh Circuit Court of Appeals relied on a county employer's "general orders" to discern an employee's official duties. The plaintiff, a female social worker for the corrections department in Cook County, Illinois, was injured when a male corrections officer punched her. She filed an internal complaint as well as a separate police report. When she was later disciplined, she sued, claiming that the sheriff had retaliated against her for speaking up about her mistreatment (Houskins v. Sheahan, 549 F.3d 480, 484–485 (7th Cir. 2009)).
 
The Seventh Circuit rejected the social worker's free speech claim because the internal report had been mandated by her job. The court explained: "[Plaintiff] was clearly expected to report the incident under the General Orders, and therefore she was speaking as part of her job ... and not as a citizen." (Houskins, 549 F.3d at 491.) The appellate panel also found that the police report did not qualify as protected speech, but for a different reason: It did not concern an issue of public interest. "Speech that serves a private or personal interest, as opposed to a public one, does not satisfy the standards for First Amendment protections." (Houskins, 549 F.3d at 491–492.)

The Tenth Circuit went a step further when it heard the claim of an Oklahoma City building inspector who complained to his superiors about possible fraudulent building certificates, including one issued to the mayor. The inspector made a report to the Oklahoma State Bureau of Investigation. After the city terminated the inspector, he brought a retaliation suit. The court opined that the plaintiff's official job description "is not the end of the matter," and that a practical evaluation required analysis of the plaintiff's actual work and responsibilities (Thomas v. City of Blanchard, 548 F.3d 1317, 1323–1324 (10th Cir. 2008)). The court concluded that although discovery of alleged wrongdoing was part of the plaintiff's job duties, reporting that conduct to the state was not; the employee's speech, therefore, enjoyed constitutional protection (Thomas, 548 F.3d at 1326).

The Ninth Circuit (setting precedent for federal courts in California) has held that activities ordered by a superior fall within an employee's job duties, ruling in a case involving Bay Area police officers who were ordered to investigate corruption at a municipal golf course (Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009)). But there was a complication: One of the officers—Ron Huppert—went even further, working off-duty with the FBI on corruption and fraud issues in the police department itself.

To the extent that the plaintiff officers were ordered to investigate, the court's conclusion that they performed official job duties and engaged in employee speech seems straightforward. But what about working with the FBI? The court's reliance on supervisory orders to categorize activities as employee speech would not seem to cover off-duty work with federal agents. Nevertheless, the court concluded that such activities were within Huppert's job responsibilities, and so speech in that context was not protected.

The Ninth Circuit described California law as imposing broad duties on police officers to report any wrongdoing and to provide testimony that assists in the prosecution of criminal activity. The court said that when officers learn facts that tend to incriminate someone, they must disclose those facts to their superiors ( This inherent duty on the part of police officers made Huppert's cooperation with the FBI part of his job duties. The court also determined that his grand jury testimony was part of his job duties as well.

The Huppert decision contains a dissent by Circuit Judge William Fletcher, who advocated in favor of a rule embraced by the Third and Seventh circuits—that an independent legal duty to speak, like the duty to provide truthful grand jury testimony, is sufficient to clothe speech with First Amendment protection. Fletcher's dissent notes that there is a clear split among the circuits on this issue (Huppert, 574 F.3d at 721–722 (Fletcher, J., dissenting)). It may take another U.S. Supreme Court decision to resolve this ongoing conflict.

As the article notes, the ironic effect is that public employees who want to blow the whistle on problems encountered in their jobs probably get the best First Amendment protection by taking their concerns to the press—although constitutional protection may not mean career advancement, and they must be careful not to leak legally confidential information.