Supreme Court Weighs Case on Public-Employee Testimony

By Mark Walsh — April 28, 2014 6 min read
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The U.S. Supreme Court on Monday stepped back into the complex area of First Amendment free speech rights of government employees. Its vehicle for doing so was a case from Alabama whose facts and allegations could have come out of a state version of the political drama “House of Cards.”

In Lane v. Franks (Case No. 13-483), the justices are considering whether the head of a community college’s program for at-risk youth had any First Amendment protection for testimony he gave about a state lawmaker who held a no-show job with the program.

The employee, Edward R. Lane, was fired by the president of the community college after he testified at a criminal trial against the legislator. This was just before the at-risk program was due to request more funding from the state legislature.

Lane was hired in 2006 by Central Alabama Community College as acting director of the Community Intensive Training for Youth program. Upon looking over the books, Lane found a state legislator on the program’s payroll, but he didn’t find her showing up for work very often.

When Lane confronted the lawmaker, state Sen. Suzanne Schmitz, she allegedly told him she got the job through the influence of a top state teachers’ union official, court papers say. One of Lane’s supervisors at the community college warned him he better tread carefully lest he provoke retaliation from Schmitz or the legislature.

Unbowed, Lane told Schmitz to start reporting for work “from 8:00 to 4:30 on a day-to-day basis.” The senator responded in a letter that she would prefer to continue serving the at-risk youth program “in the same manner as I have in the past.”

Lane then fired the state senator from the no-show job. Schmitz vowed retaliation, telling another program employee that if Lane ever sought funding from the legislature, she would tell him, “You’re fired.”

However, Schmitz’s no-show job, for which she collected more than $177,000 over several years, drew the attention of federal prosecutors. Lane was subpoenaed to testify about what he knew, and a grand jury indicted Schmitz on multiple counts of mail fraud and fraud in connection with a program receiving federal funds.

Lane also testified under subpoena at Schmitz’s two criminal trials. After the first one ended in a mistrial, Schmitz was convicted in her second trial of mail fraud and other charges.

In 2009, just after Lane had testified at the first trial, the then-president of the community college, Steve Franks, fired Lane, ostensibly for financial reasons. Lane filed a lawsuit alleging that Franks either collaborated with Schmitz or was pressured by her to terminate Lane in retaliation for his testimony.

Two lower federal courts ruled against Lane, holding that his testimony was speech as an employee, not as a citizen speaking on a matter of public concern, which would draw First Amendment protection under the Supreme Court’s precedents.

School Precedents Cited

The National Education Association and other public-employee unions filed a friend-of-the-court brief on Lane’s side, saying that the case could affect the freedom of teachers and other education professionals to speak openly about controversial issues.

“NEA and its members further believe that when public sector employees give sworn testimony, such testimony is necessarily a matter of public concern and may not be the basis for any adverse employment action against the employee,” the brief says.

At oral arguments on Monday, the justices heard from no fewer than four advocates, each with slightly different perspectives on First Amendment protection for government employees’ speech in the context of testimony.

Lane’s lawyer, Tejinder Singh, argued that while Lane testified about things he learned while on his job, such testimony itself was not part of his job responsibilities. Thus, it does not fall under one of the Supreme Court’s recent precedents in this area, Garcetti v. Ceballos.

In Garcetti, the high court held in 2006 that public employees do not speak as citizens when they speak pursuant to their job duties.

“I think the fact of a subpoena is strong evidence that when an employee testifies he is not doing so because it’s his job to do so,” Singh said.

Mark T. Waggoner, a lawyer representing Franks, said that Lane’s testimony “was inseparable from his job duties, and we do believe that when he testified, that it was pursuant to his official duties,” and thus not protected by the First Amendment.

Waggoner asked the court to also uphold the separate rulings of the lower courts that Franks was immune from Lane’s suit because it wasn’t clearly established that the speech in question was protected speech.

Somewhere in the middle were lawyers representing the Obama administration and the state of Alabama.

Ian G. Gershengorn, the deputy U.S. solicitor general, said, “In our view, when government employees testify, they sometimes speak as citizens and they sometimes speak as employees.” Lane spoke as a citizen in this case, but there might be times when testimony by a government employee could still subject him to employer discipline.

“There may be lack of candor, there may be belligerency and things like that that the government has to be able to react to,” Gershengorn said.

Alabama Attorney General Luther J. Strange 3rd told the justices that Lane was testifying as a citizen but that Franks merited immunity from personal liability because it wasn’t clearly established that Lane’s speech was protected.

“The situation at the heart of this case was one of the most egregious public corruption situations in Alabama’s history,” Strange said. “It led to a total rewrite of our public corruption laws and our ethics laws.”

The state depends on people like Lane " to feel free to testify as citizens on matters of public concern.”

The justices and the advocates tossed around some of the other key precedents in public-employee speech, especially Pickering v. Board of Education, a 1968 ruling which established the multi-part legal test for evaluating whether such speech was protected under the First Amendment.

“If the court says that [Lane’s] speech is protected, would there be any need to go on these facts into a Pickering balance?” Justice Ruth Bader Ginsburg wondered.

Under the Pickering test, which arose out of a case involving a high school teacher’s letter to a newspaper complaining about the school budget, a public employee’s speech is protected if it is on a matter of public concern and if the employee’s interest outweighs the public employer’s interest in an efficient workplace.

The Justice Department’s brief and Singh’s oral argument said that Lane’s speech would be protected under the Pickering test, though Singh said the justices could send the case back for the lower courts to fully apply the test.

“We don’t believe that in the summary judgment record there is any evidence that my client’s speech was at all disruptive, and that’s why the United States has argued that if you perform the balancing test here yourself you can find in our favor,” Singh said.

Waggoner appeared to suggest that a public employee such as Lane might have more protection writing a letter to the newspaper describing the legislator’s no-show job at his agency that he would from testifiying about it under subpoena.

“I think the under the citizen-analogue analysis, there is a pretty limited range of speech that would not be protected,” Waggoner said, appearing to perplex the justices. But the exception to speech protection “would apply here, where Mr. Lane testified pursuant to his official duties and relayed information that he only had because of his interactions with Miss Schmitz,” he said.

By the end, it appeared that the justices were inclined to side with Lane on the merits, but with Franks on the question of qualified immunity. Justice Elena Kagan summed up what some of the court’s precedents meant.

“We’ve said several times things like this: Government employees are often in the best position to know what ails the agencies for which they work,” Kagan said. “In other words, expecting that people will know things because they work in a place and that they can take what they know as a result of working in a place and go out and be a citizen.”

A version of this news article first appeared in The School Law Blog.