A Ray of Sunshine in the Second Circuit’s Recent Opinions on Public Employee Free Speech Rights

The Second Circuit has recently handed down a number of decisions denying public employees’ First Amendment claims, right up until this past Wednesday. While the decisions have been reached on varying grounds, each one necessarily implicates the seminal Supreme Court decision in Garcetti v. Ceballos, which I’ve written about previously here and here.

The issue is essentially this: the First Amendment prevents governments (federal, local, state) from retaliating against anyone for exercising their right to free speech. In order to receive constitutional protection, one’s speech must be “on a matter of public concern.” So, threatening to kill the President or cursing out your local school board chair isn’t protected speech. Exposing governmental corruption to the New York Times is.

Public employees are employed by the government. The question then arises: when a governmental employee says something on a matter of public concern, can they be fired for it or would such a termination constitute unconstitutional interference with First Amendment rights? The answer, according to the Supreme Court in Garcetti, is essentially that a public employee can be retaliated against for exposing matters of public concern, so long as they were doing their job. So, a DA complaining about police misconduct, as in Garcetti, can get fired precisely because complaining about police misconduct is part of what we hire DA’s to do. But if the DA had complained to the New York Times (something decidedly not in his job description) or if his secretary had complained (since watching over cops isn’t really his job either), then that speech would be protected.

Moral of the story: if you see corruption, and you’re a government official, don’t do your job. Go blow the whistle somewhere else, outside your chain of command. Otherwise you can get fired and the constitution won’t protect you. This may not be the incentive scheme most of us would hope for, but unless the Court changes its mind in the near future, this is what we’re stuck with.

The Second Circuit applied this test just this past September, in Ross v. Breslin, holding that a payroll clerk for a school district was not constitutionally protected from retaliation when she complained about numerous pay irregularities (including a coworker forging a signature for money).

In October, in Nyenhuis v. Metro District Commission, the Second Circuit again granted summary judgment to the employer where the employee, a police officer, was alleging various forms of discrimination, primarily sex discrimination and harassment. The court held that such complaints were not “matters of public concern” but were rather issues of a “purely private” nature. Some of us (ahem) may disagree as to whether claims of discrimination against a public body are purely private matters, especially where, as here, the employee made multiple complaints about herself as well as another female officer.

Last month, the Second Circuit held in Olma v. Collins that members of the city council who voted on and prepared a City budget were immune from prosecution under the doctrine of “legislative immunity” which holds that legislators cannot be sued for actions taken in their role as legislators. After all, if we could sue congressmen every time we disagreed with their votes, congress would very quickly grind to a halt.

However, in the Olma case, the city council had, quite blatantly, written the plaintiff’s position out of the budget because the plaintiff had supported a Democratic candidate for County Executive, rather than the Republican who ended up winning the position. The city council cited decreased federal funding as the reason for eliminating his position, but produced no evidence of that fact whatsoever to the lower court. Normally, one cannot claim legislative immunity where one’s actions are not considered a “legitimate legislative action” but rather constitute more of an “administrative” or “personnel” action. Writing a civil servant’s position out of a budget because he supports the wrong political party certainly sounds like a “personnel” action to me, and hardly legitimate, but apparently the Second Circuit disagrees.

However, a beam of light appeared earlier this week, in Matthews v. City of New York. In that case, a New York City police officer had complained about the existence of quota systems at the NYPD — that is the system whereby officers are required to enforce a certain number of crimes in various categories, thus giving police officers incentives to find crimes where none may in fact exist. The practice is a rather open secret in New York, is certainly illegal, and is the subject of much heated debate.

The question is whether Officer Matthews’ complaints constituted part of his job. It certainly sounds like it would be under Garcetti. We presumably (and hopefully) require police officers to complain about such illegal conduct in police departments. But if it’s part of the his job, then wouldn’t it be legal, under Garcetti, to fire him?

Honestly, I don’t know how the Second Circuit made it’s decision (though I’d be the last to argue with the outcome). The decision was short and lacked much discussion of the facts or case law. The court’s decision was also quite narrow — it didn’t decide either way whether the officer was protected, it just stated that insufficient facts existed to make a decision. That’s exactly how I’d write a decision if I were just a little concerned about the possibility of Supreme Court review.

So far as I’m concerned, though, the Garcetti doctrine is at the very least overbroad, and at worst simply wrongly decided. Unless appeals courts, like the Second Circuit, are willing to risk being overruled, the Supreme Court won’t ever have the opportunity to change it’s mind and either overturn or narrow its holding. So, despite the spate of cases this term with which I disagree, I’m still going to tip my hat to the Second Circuit for risking review and allowing Officer Matthews to go forward with litigation. What he has to say is precisely what we need police officers to say — that quota systems in the NYPD create perverse incentives which lead to heavy handed policing, sometimes outright corruption, and certainly extreme harassment and racial profiling.

And this is precisely why the Garcetti doctrine should at least be narrowed. Officer Matthews’s job should require him to expose illegal police misconduct or policies. And the City of New York should absolutely not be allowed to terminate him for it. When the government terminates one of its employees for exposing its own corruption, ineptitude, or illegal practices, that termination should be considered a violation of the First Amendment.


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