Legal Alerts Sep 17, 2018

City Can’t Restrain Employee’s Critical Comments

Ninth Circuit Holds It Is OK to Speak on Matters of Public Concern as a Private Citizen

A city employee’s comments at a public event were not protected under the First Amendment because she spoke as a public employee, not a private citizen, a federal appeals court held in Barone v. City of Springfield. However, the Ninth Circuit U.S. Court of Appeals concluded that the City’s subsequent attempt to prohibit the employee from making any negative comments about the City, even as a private citizen, was an unconstitutional prior restraint.
While the court’s decision was not surprising in light of prior decisions, the case serves as an important reminder to public employers about employees’ rights to speak publicly as private citizens — even when the speech is critical of the employer. Public employers should carefully consider the First Amendment implications before requiring employees to agree to any restrictions on their speech when acting in their private capacity. 
A community service officer for the City of Springfield’s Police Department in Oregon alleged that the City retaliated against her after she responded at a public event to a citizen inquiry about racial profiling by the Department. When asked if she was aware of increasing racial profiling complaints, the employee responded that she “had heard such complaints.”
After she made the comment, the employee was suspended from work due to her conduct related to two investigations performed earlier that year. Before the employee could return to work, the City required that she sign a “Last Chance Agreement,” which prohibited her from making any negative comments about the Department, the City or their employees. She refused to sign the agreement and the City terminated her employment. The employee then sued the City for First Amendment retaliation and imposing unlawful prior restraint.
Case law mandates that, to prove retaliation, the employee needed to demonstrate that she spoke on a matter of public concern, as a private citizen and that the relevant speech was a substantial or motivating factor in the City’s decision to terminate her employment. The court held that, because the employee was speaking at the event as part of her community outreach duties, was paid by the City to attend the event and appeared at the event in uniform, she was clearly speaking as a public employee and not a private citizen. Given that the employee was on-duty at the time she spoke,  the court  affirmed the lower court’s ruling that the employee had failed to prove First Amendment retaliation.
However, the court agreed with the employee that, because the City’s proposed agreement restricted the employee’s speech as a private citizen on issues of public concern without providing proper justification, it was an unconstitutional prior restraint. In reaching this decision, the court applied the Pickering test, based on a 1968 ruling that asks whether the restriction affects the employee’s speech as a citizen on a matter of public concern and whether the government entity has an adequate justification for treating the employee differently from any other member of the public. An adequate justification may be found when the restriction is narrowly tailored to prevent disruption of government operations. In this case, the court noted that the City’s agreement prohibited the employee from speaking negatively about any aspect of the City’s services, even those unrelated to her job, and the City failed to justify such a broad prohibition. For those reasons, the court held that the agreement was a prior restraint that violated the First Amendment.
For more information about these this decision and how it may impact your agency, contact the authors of this Legal Alert listed at the right in the firm’s Municipal Law or Labor & Employment practice groups or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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