The legal landscape of police employee free speech

Two U.S. Supreme Court cases — Pickering v. Board of Education and Garcetti v. Ceballos — begin any discussion of employee right to free speech

I’ve been a Police1 Columnist over a year now, and I’ve been delighted by reader responses and comments to the various articles I’ve written. Your feedback has been informative, educational, humorous’ and much appreciated. Some of you have e-mailed and engaged me in more direct points and matters of interest. Comments and supplementary material have even come from our police colleagues in Canada and across the Atlantic. I now find myself penning an article, the seed of which was planted by a Police1 reader.

The situation which came to the reader’s attention was a local metropolitan New York news story wherein it was reported that a police officer, Mike Simonelli, was disciplined and lost five days pay due to his criticisms of the police commissioner he had made while off-duty and attending a local governmental meeting. The officer, an Iraq veteran scheduled to be re-deployed to Afghanistan, and who by all news accounts is an exemplary police officer, made critical comments of his police commissioner during testimony before a public safety committee of the County Legislature. The issue at hand, as reported by Newsday, was whether “budget concerns caused a recent delay in a homicide detective reporting to a Brentwood murder scene while the victim lay in the street.”

Simonelli was subsequently presented with a disciplinary notice for “embarrassing, ridiculing, and degrading” the commissioner by his comments. The officer has not backed down from his comments, or his right to make them, and his union has vowed to fight the charges. A hearing is planned — the specific charge brought against him is conduct unbecoming an officer.

This is a disciplinary charge I’ve encountered many times in my representations of officers and one I find to be the administrative equivalent of the disorderly conduct charges some officers too liberally apply on the street. The constitutional dimensions of these charges are rarely contested in administrative cases, yet there has been argument in isolated instances of the “overbreadth” of the charge as it relates to the First Amendment rights of police officers. The charges, as reported in the case of Officer Simonelli, may be more supportive of the argument that the restriction on speech is overly broad.

Several issues are raised with this case. First is the authority and power of the commissioner or chief of police to discipline employees. Second is the right of the employee to the exercise of free speech. Third is the nature of “whistleblowing” and what conduct is protected by law.

A police agency has a right to monitor its employees, even regulating certain conduct outside of the workplace. This latter aspect of police employment is owing to the nature of the public trust and responsibility which is placed on the police professional. The powers granted to police commissions and police chiefs in the determination of disciplinary matters are quite broad and protective of the quasi-judicial nature of their activity when handling disciplinary cases. There is an immunity defense for police commissions and supervisors for legal claims made in response to employer decisions adverse to an employee.

The protection from “vexatious and unlimited litigation” provides one requirement for the basis of immunity, and the impartiality of the hearing board provides the other basis. While due process does not require the total absence of impartiality required of the judiciary, there is a presumption of impartiality that attends all administrative determinations 1. In order to overcome such a presumption a complainant would have to show actual bias on the part of an official, conflict of interest or other disqualifying condition 2.

What is the line between a police employee speaking out as a citizen over a matter of public concern and that of a disgruntled employee? When does the exercise of First Amendment rights extend beyond the liberty interest in free speech and become protected further as a whistleblower? Under what circumstances can police employee free speech be legitimately curtailed by the department and subjected to discipline? These are issues of intense litigation which have had some interesting legal results within the past few years.

While many public employees rely on their First Amendment rights and whistleblower protection laws when speaking publicly relative to their employment, their reliance is often misplaced. An improper understanding of the protections afforded to whistleblowers — and what exactly entails whistleblower protection — has led many public employees to incur discipline as a result of improper public disclosures. Similarly, First Amendment rights are not absolute and a public employee has less protection when speaking out on work related matters than he/she would as a private citizen engaging in public discourse.

U.S. Supreme Court Cases
An employee’s good faith belief in the righteousness of his/her cause has little relevance to the case law. Two U.S. Supreme Court cases begin any discussion of employee right to free speech. One case set the standard for employee speech; the other limited the effect of the previous case’s long standing ruling.

In Pickering v. Board of Education, 391 U.S. 563 (1968), a high school teacher wrote a letter to the editor of a local newspaper criticizing the allocation of funds between academics and athletics at the local high school. The teacher was subsequently terminated by the school board for making inaccurate accusations against the school board. In a case where the teacher asserted a violation of her 1st and 14th Amendment rights, the U.S. Supreme Court held that an employee’s interest as a citizen in making public comment needs to be balanced against the employer’s competing interest “in promoting the efficiency of the public services it performs through its employees.”

This “balancing test” will weigh in favor of the employee when the speech is made as a citizen on a matter of public concern 3.

Absent this requirement of public concern or interest and the speech may be subject to discipline by the employer. This was the case in Garcetti v. Ceballos, 547 U.S. 410 (2006), in which the U.S. Supreme Court rejected any balancing inquiry when the employee speech is made as part of his employment.

The Garcetti case involved a supervising deputy district attorney in Los Angeles who, at the request of defense counsel, reviewed a warrant affidavit in which he found several misrepresentations. He brought this information to the attention of his superiors who ignored it and proceeded with the prosecution based on the faulty affidavit. Ceballos wrote a dismissal memorandum which he submitted to the court hearing the criminal case. The trial court rejected his challenge to the submitted evidence stemming from the faulty affidavit. He claimed subsequent retaliation by his employer in violation of his 1st and 14th Amendment rights.

The U.S. Supreme Court ruled for the employer by distinguishing the Pickering balancing criteria from that here where Ceballos’ speech was made pursuant to his official duties, in essence ruling it was speech made as part of his job and not made as a private citizen. The threshold inquiry after Garcetti is the extent to which an employee can be said to be speaking in connection with his/her employment.

Federal Circuit Courts Weigh In
The courts’ treatment of a public employee’s freedom of speech will depend on the nature of that speech and the overall aim of that speech. Two cases from the federal circuit courts involving police officer speech distinguish the differing treatment of employee speech.

The Third Circuit Court of Appeals in Foraker v. Chaffinch, 501 F.3d231 (3d Cir., 2007) ruled against police officers assigned to the firing range who complained to the state auditor regarding conditions at the firing range. In finding their job duties were to report through the chain of command on matters pertaining to range operations and conditions, the court held their speech was not protected. This was not a matter of public concern but was within the scope of their routine duties.

The Sixth Circuit Court of Appeals case of See v. City of Elyria, 502 F.3d 484 (6th Cir., 2007) involved a complaint made to the F.B.I. by an officer reporting misconduct within the police department. The complaint was held to be constitutionally protected speech since it involved a matter of public concern.

The distinguishing factor in these two cases comes down to a question of whether speech is made pursuant to an employee’s official duties. This is a factual issue which courts must consider prior to any ruling on the nature of the speech 4. A determination that the speech is made part of the official duty though can have the incongruous result of muting a First Amendment based retaliatory claim premised on the reporting of potential corrupt activities.

This was the case in Sigsworth v. City of Aurora, 487 F.3d 506 (7th Cir., 2007), wherein the plaintiff officer reported to superiors his suspicions that targets of a drug raid were tipped off beforehand. Though it declined the officer’s First Amendment claim, the court opined as a consolation that Garcetti was not a “categorical rule” depriving public employees of First Amendment protection and that state whistleblower protections might be more availing.

The legal landscape of public employee free-speech has been unsettling since Garcetti, and police officers have shouldered a good part of the fallout. The ruling in Garcetti  is not without its criticism, especially now several years removed from the decision when we can observe the aftermath in ensuing lower federal court decisions which have dismissed police officer complaints of retaliation based on their exercise of free speech.

The most ardent constitutionalist among us would agree that no right is absolute; restraint, within limits, is necessary for good social order. However, the limiting of employee speech in the name of unchallenged workplace authority is troublesome. Hence, the repeated concerns that the reach of Garcetti works to stifle the speech of those employees most accessible to view government misconduct.

Nevertheless, the rule of Garcetti  remains that an employee is protected only if the speech is unconnected to employment. The inquiry now is whether or not the employee made the speech as a private citizen or as a part of his official duties. What this has done to the concept of employees — especially police employees — reporting wrongdoing at work is to potentially mute those employees who have witnessed others before them disciplined for attempting good-faith efforts to report wrongdoing.

Criticism of the “blue wall of silence” and citizen mobilization for more transparency has hit a speed bump with the Garcetti decision. The police culture has not been one generally favorable to officers coming forward to report wrongdoing in the past 5. Whistle-blowing laws exist to protect from retaliation those employees who report abusive, fraudulent, and corrupt behavior within their workplace. These laws are ineffective if the employee is judged to be speaking in his/her official capacity and not on a matter of public concern. Police officers with legitimate complaints of wrongdoing must understand how the courts have been applying the rule in Garcetti. Officers often seek to go outside of the job to make their complaint on the belief that doing so internally nothing will be done. Every situation is unique and officers must weigh the issues carefully.

Where officers have been encountering post-Garcetti  problems is in instances when they have eschewed the internal complaint process and went to public forums, as in Officer Simonelli’s case, or to the media. Internal processes, whether they are internal affairs or a municipal integrity board, must be the preliminary avenues for complaint. An officer who speaks in public on an employment matter does so at his or her own risk. Garcetti  has foreclosed the cause of action based on retaliation as drafted within the context of a civil rights complaint.

While my sympathy — and that of the reader who first brought this to our attention — is with Officer Simonelli, the law will likely be unsympathetic to his cause. The speech will not be considered to be the subject matter of general public concern. The broad deference given to the commissioner in the management of the department will trump any claims based on free speech or whistleblower protection. Even New York State’s own whistleblower statute, recently strengthened this past August with legislation signed into law by the Governor, will provide little protection for the speech at issue. New York’s statute, like so many others, requires a report of illegal conduct and a prior good faith effort to inform the employer. Officer Simonelli’s comments do not seem to allege the type of behavior contemplated by the statute.

A better solution for all concerned would be to rescind the five-day suspension, consider the officer’s exemplary record, and provide a warning memorandum or some alternative to the loss of pay. An otherwise good police officer and military veteran deserves that accommodation.

1 See eg., Schweiker v. McClure, 456 U.S. 188, 102 S. Ct. 1665, 72 L. Ed. 2d 1 (1982) .
2 Ibid
3 See eg., Connick v. Myers, 461 U.S. 138 (1983) : “Employee speech has to be determined by the content, form and context of a given statement.” The threshold inquiry in Connick is whether the “employee speech touches on a matter of public concern” and provided the second part to the two-prong Pickering-Connick test.
4 See eg., Williams v. Riley, No. 07-60252, 5th Circuit Court of Appeals : “’when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes’...At issue then, is whether a genuine issue of material fact exists on Garcetti’s threshold inquiry – whether Plaintiff’s speech was pursuant to their official duties.”
5 For a discussion on this topic see, “ Whistleblowing and the Police ,” Roberta Ann Johnson, Rutgers University Journal of Law and Urban Policy, 1 Vol. 3


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