After the U.S. Supreme Court’s decision in Garcetti several years ago, there was a lot of chatter about whether public employees still had substantive First Amendment free speech rights.
And for a short while, the trend did seem to indicate that speech that related to an employee’s “official job duties” was to be construed broadly and that courts viewed speech that related loosely to the job as not being protected.
A recent federal court case in Connecticut demonstrates, however, that those free speech rights may be broader than some had grown to expect.
The case, Burns v. Department of Public Service (download here), was released a few weeks back. In it, a detective claimed that he was being retaliated against after he raised some concerns about the collection of detective DNA samples by DPS for contamination elimination purposes. Among the issues he is alleged to have raised was a concern about a “lack of a policy” regarding such collections. He is also alleged to have discussed his concerns with his union.
The court then had to consider, among other issues, whether the speech raised an issue of “public concern” and whether the employee’s speech was pursuant to his official job duties. The court concluded that the issue was a matter of public concern and that it was not “pursuant to” his job duties. In doing so, the court took a fairly broad view of both elements and found that the employee could still pursue his First Amendment retaliation claim.
The court concluded that the employee’s comments about DNA collection were not simply about himself but also about others in the department. “[His] statements concerned not solely his own employment conditions, but employment conditions for a class of employees in his department (i.e., DPS detectives). Additionally, [his] conversations … included statements regarding a concern that the scope of people subject to DNA collection by DPS would expand.” Thus, the court concluded, that it raised an issue of “public concern” that was not merely specific to himself. (How it is really an issue to the “general public” does not get answered with any specificity.)
Moreover, the court concluded that the speech was not pursuant to his duties and claim that the employer failed “to identify any official duty of [the employee] pursuant to which he was acting.” That some of analysis takes a much narrower view of Second Circuit precedent which has held that the “pursuant to” clause is broad and looked and whether the concerns that he raised was also “part-and-parcel of his concerns about his ability to properly execute his duties.” Here the court said the concerns did not relate to his job duties.
Of course, as a reminder to readers, the court assumes certain facts as true for purposes of ruling on a motion for summary judgment, so the case merely proceeds now to a potential trial.
For employers, it’s worth continuing to follow the First Amendment retaliation cases for both public and private employers. The scope of free speech rights continues to evolve. When in doubt, consult your local counsel to see if the employee’s speech is something to be concerned about.
Burns v. Department of Public Safety