FIRST AMENDMENT RIGHTS OF STATE EMPLOYEES PROTECTED AGAINST RETALIATION

by | Aug 11, 2014

FIRST AMENDMENT RIGHTS OF STATE EMPLOYEES PROTECTED AGAINST RETALIATION

Edward Lane, the director or a state program for underprivileged youth, conducted an audit of his organization because of financial issues.  While investigating, he found an employee on the payroll who was not reporting to her office.  He was warned by his boss and attorney not to go after the employee because there would be problems. Instead, he confronted her for not showing up and she refused to work in the office.  She was fired, and due to questionable circumstances, subsequently investigated by the FBI.  Lane was subpoenaed to testify twice regarding the reasons he fired her.  After she was convicted, Lane reported back to his office.  Because there were still ongoing financial issues, Lane recommended that his boss conduct layoffs.  Lane’s boss then terminated 29 probationary employees, including Lane.  27 of those layoffs were rescinded, but not Lane’s.  Lane’s boss stated it was because he was in a different category of employees as the director of the program then the other employees. Lane sued his boss for violating the First Amendment by firing him in retaliation for his subpoenaed testimony.
The District Court held, and the Eleventh Circuit confirmed, that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes. Because Lane had learned about the information through CITY employment, the courts found that his speech was part of his official job duties and not as a citizen. The Eleventh Circuit added that although Lane was subpoenaed to testify, his speech was not protected under the First Amendment because the speech owes its existence to the employee’s professional responsibilities and is a product that the employer himself commissioned or created.
The United States Supreme Court disagreed, and ruled that Lane was entitled to First Amendment protection because his sworn testimony was clearly a matter of public concern and outside the scope of his ordinary job duties.  The Court used a balancing test: 1) If the speech is in the course of the employee’s ordinary job duties, then the employee is not speaking as a citizen for First Amendment purposes;  2) But if the employee spoke as a citizen on a matter of public concern, the inquiry turns to whether the government entity had an adequate justification for treating the employee differently from any other member of the general public.
On this first point, the Court ruled that anyone who testifies in court bears an obligation to tell the truth, and therefore testimony speech as a citizen is fundamentally different from speech made purely in the capacity of an employee.  On the second point, Lane’s testimony was found to “obviously [involve] a matter of significant public concern” due to the corruption in a public program and misuse of state funds. The Court also found there was no evidence put on by the employer that Lane’s testimony was false or erroneous, or that Lane unnecessarily disclosed any sensitive, confidential, or privileged information when testifying.  Therefore, under the circumstances, Lane’s speech was entitled to protection under the First Amendment.
To read the decision, click here.

Papers used by a Sacramento Wage Claim Lawyer

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