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					Making Garcetti’s “Practical Inquiry” into Public
Employee Free Speech Rights
By Douglas E. Gerhardt

Introduction                                                priety of an assistant district attorney’s comments
     Historicdogma1    de-                                  after being fired, the Court added a component to the
nied public employees                                       public employee free speech analysis. There, the Court
free speech rights at work.                                 held speech on matters of public concern is entitled to
Rooting out that dogma,                                     greater protection than when a public employee speaks
courts invalidated statutes                                 on matters of a private or work related nature.9 The
seeking to suppress public                                  Court found relevant the time, place and manner of the
employee free speech.2 It is                                speech.10 Connick involved a questionnaire distributed
now well-settled that public                                by a disgruntled assistant district attorney.11 The Court
employees do enjoy First                                    found parts of the questionnaire evaluation addressed
Amendment freedoms even                                     matters of public concern and, thus, were protected
at work.3 Yet, as clear as                                  speech even though much of the questionnaire did
the Supreme Court’s pro-                                    not.12
nouncement has been, guidance on the extent of those            Rankin et al. v. McPherson13 relied on Pickering and
public employee rights is more opaque.                      Connick when analyzing comments by a Texas law
    Garcetti v. Ceballos,4 the Court’s latest pronounce-    enforcement official about presidential policies. The
ment on public employee free speech rights, explained       remarks were made shortly after a Presidential assas-
the extent of such rights requires practical inquiry        sination attempt and suggested such an attempt ought
into the specific facts surrounding what was said and        to be successful.14 The Court determined the speech
the manner in which it was said.5 However, the Court        addressed a matter of public concern—the Presidential
stopped short of enunciating precise factors which          policies—and then went on to balance the speaker’s
control that inquiry. Recent New York Federal District      interests on speaking out on matters of public concern
Court and Second Circuit cases shed light on these          against government’s interest in promoting the ef-
factors and provide guidance to public employers            ficiency of public service.15 Considering the context of
and employees. This guidance ought to be taken into         the speech, including the time, place and manner of the
account when determining whether an employee has            utterance as well as the fact that it was on a matter of
properly exercised her/his free speech rights at work.      public concern, the Court sided with the employee and
                                                            found termination of the employee based on the speech
    This article provides a brief background on the         was not proper.
cases leading up to and including Garcetti. It then ex-
amines recent case law delineating factors endemic to
the “practical inquiry” now required under Garcetti.        Garcetti v. Ceballos
                                                                In Garcetti v. Ceballos,16 the Supreme Court built
                                                            on the framework established in Pickering and Connick
Prelude to Garcetti                                         and applied in Rankin to further articulate the nature
     In 1968, the Supreme Court defined public em-           of public employee speech deserving of constitutional
ployees’ free speech rights at work. Examining pub-         protection.17
lic school teachers’ statements to a local newspaper
regarding recent proposed tax increases, the Court              Richard Ceballos was a deputy district attorney in
concluded that while the free speech rights enjoyed         Los Angeles County DA Garcetti’s office.18 In February
by private citizens do not automatically flow to public      2000, at the request of a defense attorney, Mr. Ceballos
employment (here a school building), they are not           examined the validity of a search warrant and sup-
entirely devoid.6 The Court established that limiting       porting documentation in a pending case. He found
public employees’ free speech rights requires balanc-       the warrant “contained serious misrepresentations.”19
ing the speaker’s interest in free expression with the      Mr. Ceballos memorialized his concerns in a memo to
government’s interest in efficient operation of (in this     supervisors where he recommended the case be dis-
case) schools.7                                             missed.20 The case ended up proceeding to trial where
                                                            Mr. Ceballos was called as a defense witness and testi-
    The Court honed the Pickering analysis several          fied about his findings.21
years later in Connick v. Meyers.8 Analyzing the pro-

10                                                NYSBA/MLRC Municipal Lawyer | Spring 2010 | Vol. 24 | No. 2
     Following the trial, Mr. Ceballos experienced what    of the speech—whether it was part of official duties
he alleged were retaliatory actions by his employer,       and whether it was on a matter of public concern. The
including reassignment to a different position, transfer   Court (purposely) does not provide “a comprehensive
to a different courthouse and denial of promotion. He      framework for defining the scope of an employee’s
filed a grievance (denied) claiming retaliation.22 Mr.      duties”31 or define what constitutes a matter of public
Ceballos sued claiming his employer’s actions violated     concern. This, the Court held, is a “practical inquiry.”32
his First Amendment rights because they were retali-       Recent cases in the Second Circuit have made that in-
ation for his search warrant memo. The trial court         quiry and in so doing provide instructive guidance on
dismissed the case finding the memo was written as          the scope of public employee free speech rights.
part of Mr. Ceballos job duties and was, therefore, not
protected speech.23 The Ninth Circuit Court of Appeals
                                                           “Practical Inquiry” after Garcetti
reversed concluding the memo was protected speech.24
                                                           Sousa v. Roque33
    The United States Supreme Court reversed the
Ninth Circuit. Relying on prior precedent, the Court            Mr. Sousa was a Connecticut Department of
acknowledged public employees enjoy liberties while        Environmental Protection employee who, after a fight
working in government but accept limitations to en-        with a fellow worker, was suspended for three days.34
sure the smooth operation of government.25 Determin-       Following the altercation, Mr. Sousa made numerous
ing whether speech is permissible requires analyzing       complaints focusing on the discipline he received due
whether an employee spoke as a citizen or in his/her       to the incident and more generally, workplace harass-
official capacity. The Court made clear, “when public       ment.35 Complaints were general in nature and also
employees make statements pursuant to their official        related to “mobbing”—the practice of abusive behav-
duties, the employees are not speaking as citizens for     iors being inflicted over time.36 He complained for
First Amendment purposes.”26 The decision further          himself and for others in the Department. Complaints
delineates speech on matters of public concern. When       were filed with the Department and the state attorney
an employee speaks on a matter of public concern, the      general.
Pickering balancing of interests (the speaker’s versus         Also following the altercation, Mr. Sousa was
government’s) must occur.27 Speech not on a matter of      asked to take a fitness for work exam, ended up being
public concern is accorded no such protection.             out on leave for a period of time and ultimately, after
    Applying these principles, the Court found Mr.         not coming back to work, was terminated.37 Mr. Sousa
Ceballos spoke in his official capacity. Critical to its    sued claiming the negative work actions and termina-
conclusion was the fact that Mr. Ceballos’ “expressions    tion were retaliatory in response to his speaking out re-
were made pursuant to his [job] duties”—to advise his      garding harassment.38 The trial court found Sousa had
supervisor how to proceed with a case.28 The Court         not engaged in speech on a matter of public concern
stated:                                                    and, therefore, his retaliation claim was not permit-
                                                           ted.39 The Second Circuit reversed.
        [r]estricting speech that owes its
        existence to a public employee’s                        The court closely examined whether Mr. Sousa’s
        professional responsibilities does not             speech addressed a matter of public concern.40 It held
        infringe any liberties the employee                matters of public concern are those which “relate to
        might have enjoyed as a private                    any matter of political, social or other concern to the
        citizen. It simply reflects the exercise            community.”41 The content, form, and context are criti-
        of employer control over what the                  cal, as is motive, but the latter is not dispositive.42 Ac-
        employer itself has commissioned or                cording to the court, “it does not follow that a person
        created.29                                         motivated by a personal grievance cannot be speaking
                                                           on a matter of public concern.”43
The Court also held the fact that Mr. Ceballos
spoke from inside his office, through a memo, was                Here, that appears to be the case. The Second
instructive, but not dispositive.30                        Circuit ruled the lower court erred in finding no First
                                                           Amendment protection for speech calculated to redress
      The Garcetti decision hones analysis of government   personal grievances in the employment context.44 The
employee free speech and to an extent narrows it. If an    fact that Mr. Sousa’s speech arose through a grievance
employee speaks as part of her/his official job duties,     does not remove it from the ambit of public concern.45
the speech is not protected. If the employee speaks on     Rather, the context of the entire record must be consid-
a matter which is not of public concern, the speech will   ered.46 It remanded the case back to district court for
not receive protection. Where Pickering and Connick        further proceedings.47 Critically, Mr. Sousa’s motiva-
focused on balancing interests, and certainly that is      tion was not dispositive of the nature of his speech.
still required, Garcetti focuses on the manner and scope

NYSBA/MLRC Municipal Lawyer | Spring 2010 | Vol. 24 | No. 2                                                        11
Weintraub v. BOE of New York City 48                        so virtually ensured his speech would be afforded no
     Six months after Sousa, the Second Circuit again       constitutional protection.63
scrutinized speech born of an employee grievance.
The court grappled with the threshold issue not pres-       Conclusion
ent in Sousa—whether speech was made as part of an
                                                                Garcetti and its progeny do not eliminate the com-
employee’s official duties.
                                                            plexity of fact patterns the Supreme Court openly rec-
    Mr. Weintraub was a fifth grade teacher in New           ognized are prevalent in First Amendment free speech
York City public schools. Two months after starting         cases. However, this body of law offers instructive
work, he referred a student for discipline after the        guidance. Just as Garcetti narrowed the inquiry relat-
student threw a book at Mr. Weintraub.49 The stu-           ing to public employee free speech rights, the circuit
dent was returned to Mr. Weintraub’s class and soon         cases following it develop an analytical framework for
thereafter, threw another book.50 Mr. Weintraub again       breaking down those facts.
sent the student to the assistant principal and again
                                                                 Sousa, Weintraub and other precedent describe fac-
the student was returned.51 Mr. Weintraub was upset
                                                            tors to determine whether government speech is pro-
by the administrative response and felt if the student
                                                            tected. Job descriptions,64 to whom speech is directed,
could do this he could put others at risk as well.52 He
                                                            whether speech is a result of special knowledge gained
demanded action and threatened to file a grievance.53
                                                            as part of employment, whether speech occurred at
    Mr. Weintraub alleged that due to his complaints,       work or concerned the employee’s job and whether
including the grievance, he was retaliated against.         the speech is the kind of activity engaged in by citi-
Specifically, Mr. Weintraub claims he received un-           zens who do not work for the government all become
founded negative classroom evaluations, poor                relevant to the ‘practical inquiry’ into a government
performance reviews and disciplinary reports, was           employee’s speech.65 No single one of these, nor is the
wrongfully accused of sexually abusing a student            fact that speech occurred at work or was made pursu-
and abandoning his class and had criminal charges           ant to a grievance, is dispositive. The rule of Connick
filed against him.54 Eventually Mr. Weintraub was            remains—the totality of circumstances surrounding the
terminated.55                                               utterance must be considered.

    Mr. Weintraub sued claiming retaliation and a                Government employers are well advised to coun-
First Amendment right to filing the grievance. This          sel employees that, while they have free speech rights
was claimed as protected speech having not been             at work, these are limited. Further, such rights ought to
made as part of his duties or on a matter of private        be exercised carefully and consistent with internal job
concern.56 He argued there is no affirmative duty to         descriptions, policies and local laws. Such advice will
file a grievance and, therefore, doing so could not be       assist public employees and employers to understand
deemed part of his official duties.                          the nature of speech protected and prohibited as a
                                                            public employee.
    The court rejected that argument. The court rea-
soned “if [we] determine[] that [Weintraub] either did      Endnotes
not speak as a citizen or did not speak on a matter of      1.    Connick v. Meyers, 461 U.S. 138, 143 (1983) citing McAuliffe v.
public concern, [he] has no First Amendment cause                 Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517, 517 (1892)
of action based on his…employer’s reaction to the                 and Adler v. Board of Education, 342 U.S. 485 (1952); Garner v. Los
                                                                  Angeles Bd. of Public Works, 341 U.S. 716 (1951); Public Workers v.
speech.”57 Engaging Garcetti’s practical inquiry, the
                                                                  Mitchell, 330 U.S. 75 (1947); United States v. Wurzbach, 280 U.S.
court examined the public employee’s professional                 396 (1930); Ex parte Curtis, 106 U.S. 371 (1882).
responsibilities.58 It found duties are not limited to      2.    Id. at 144.
tasks specifically designated59 and concluded speech
                                                            3.    See generally, Pickering v. Board of Ed. of Township High School
may be pursuant to a public employee’s job duties                 District, 391 U.S. 563 (1968) and Connick v. Meyers, 461 U.S. 138,
even though it is not defined in a job description or a            143 (1983).
response to an employer request.60                          4.    Garcetti v. Ceballos, 547 U.S. 410 (2006).
     Mr. Weintraub’s grievance was “part-and-parcel of      5.    Id. at 424.
his concerns about his ability to properly execute his      6.    Pickering v. Board of Ed. of Township High School District, 391 U.S.
duties…namely to maintain classroom discipline.”61                563 (1968).
The court noted the grievance process is one unique         7.    Id. at 572.
to public employees—there is no citizen analogue.62         8.    Connick v. Meyers, 461 U.S. 138 (1983).
Though not dispositive, considerable weight was ac-         9.    Id.
corded to the fact that Mr. Weintraub chose a griev-        10.   Id. at 148.
ance rather than a channel available to the citizenry—a     11.   Id.
letter to the editor or to the inspector general. Doing

12                                               NYSBA/MLRC Municipal Lawyer | Spring 2010 | Vol. 24 | No. 2
12.   Id. at 149 (“One question in Myers’ questionnaire, however,           43.   Id. at 174 (emphasis in original).
      does touch upon a matter of public concern. Question 11               44.   Id. at 175.
      inquires if assistant district attorneys “ever feel pressured
      to work in political campaigns on behalf of office supported           45.   Id.
      candidates.”).                                                        46.   Id. at 175 citing Connick v. Meyers, 461 U.S. at 147-48.
13.   483 U.S. 378 (1987).                                                  47.   Id.
14.   Id. at 386.                                                           48.   Weintraub v. NYC Board of Education et al., 593 F.3d 196 (2d Cir.,
15.   Id. at 389.                                                                 2010) (hereinafter Weintraub II).
16.   547 U.S. 410 (2006).                                                  49.   Weintrab v. NYC Board of Edcuation, 423 F.Supp.2d 38 (E.D.N.Y.,
                                                                                  2006) (hereinafter Weintraub I).
17.   Due to the “practical” nature of the inquiry insisted upon by
      the Court, this article details salient facts of the cases at issue   50.   Weintraub II at 198-199.
      in order to provide context and frame of reference for the            51.   Id. at 199.
                                                                            52.   Id.
18.   Garcetti v. Ceballos at 413. (All factual references are to the
      official Supreme Court decision cite.).                                53.   Id.

19.   Id. at 414.                                                           54.   Weintraub II at 199.

20.   Id.                                                                   55.   Id.

21.   Id. (The trial court rejected Mr. Ceballos’ findings.).                56.   Id.

22.   Id. at 415.                                                           57.   Id. at 201 citing Sousa v. Roque, 578 F.3d 164, 170, quoting
                                                                                  Garcetti, 547 U.S. at 418.
23.   Id.
                                                                            58.   Id.
24.   Garcetti v. Ceballos, 361 F.3d 1168, 1173 (9th Cir., 2009). The
      appellate court found Mr. Ceballos’ memo contained evidence           59.   Id. at 202 citing Phillips v. City of Dawsonville, 499 F.3d 1239, 1242
      of government misconduct and, as such, addressed a matter of                (11th Cir., 2007).
      public concern.                                                       60.   Id. at 203. The court notes this holding is consistent with five
25.   Id. at 418.                                                                 other circuits citing, Williams v. Dallas Indep. SD, 480 F.3d 689
                                                                                  (5th Cir., 2007); Renken v. Gregory, 541 F.3d 769 (7th Cir., 2008);
26.   Id. at 421.                                                                 Phillips v. City of Dawsonville, 499 F.3d 1239 (11th Cir., 2007);
27.   Id. at 423.                                                                 Brammer–Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192 (10th
                                                                                  Cir., 2007); Freitag v. Ayers, 468 F.3d 528 (9th Cir., 2006).
28.   Id. at 421.
                                                                            61.   Id.
29.   Id.
                                                                            62.   Id. at 203.
30.   Id. at 420.
                                                                            63.   Id. at 204.
31.   Id. at 424.
                                                                            64.   The Garcetti Court made clear Job Descriptions alone are
32.   Id.                                                                         not enough and these often bear little resemblance to the
33.   Sousa v. Roque, 578 F.3d 164 (2d Cir. (2009).                               actual duties performed. Garcetti v. Ceballos at 424 (rebuking
                                                                                  contentions contained in Justice Souter’s dissent.).
34.   Id. at 166.
                                                                            65.   Kelly v. Huntington Union Free School Dist., 675 F.Supp.2d 283
35.   Id. at 167.
                                                                                  (E.D.N.Y. Dec 23, 2009).
36.   Id.
37.   Id. at 168.                                                               Douglas E. Gerhardt is a partner at Harris Beach
38.   Id.                                                                   PLLC, a law firm with ten offices statewide. He serves
39.   Id. at 170.                                                           as general, special, labor and employment counsel to
40.   This was the only matter brought to the court on appeal. The          school districts and municipalities throughout New
      District Court determined Mr. Sousa was not acting in his             York State. He also addresses unique government
      official capacity when he brought the harassment complaints            compliance and investigation issues for public and
      forward. Significantly, the holding allows the inference that a
      public employee raising issues of harassment in the workplace
                                                                            private sector clients. Mr. Gerhardt practices from the
      is not speaking in her/his official capacity.                          firm’s Albany, Saratoga Springs and White Plains of-
41.   Id. at 170 citing Connick v. Meyers, 461 U.S. 138 at 146 (1983).      fices. Mr. Gerhardt is an Adjunct Professor at Union
                                                                            College’s Graduate College, the College of St. Rose
42.   Id. at 171 citing Cioffi v. Averill Park CSD Board of Edcuation, 444
      F.3d 158 at 166 (2d Cir. 2006) and Reuland v. Hynes, 460 F.3d 409     and Albany Law School. He is a graduate of the Uni-
      (2d Cir. 2006).                                                       versity of Rochester and Albany Law School.

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