A recent federal appeals court decision shows the impact of a U.S. Supreme Court decision from last year on First Amendment protections for government employees who face adverse job actions based on their speech in the workplace.
Under high court precedents, a public employee is protected when he or she speaks as a citizen on a matter of public concern, if the employee’s interest in commenting outweighs the interest of the government agency as the employer.
But in the May 2006 decision in Garcetti v. Ceballos, the justices ruled 5-4 that when public employees speak “pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
That ruling has affected a lawsuit brought by Barbara P. Casey, who served as the superintendent of the 2,200-student West Las Vegas, N.M., school district from January 2002 to April 2003.
Ms. Casey sued the West Las Vegas school district for damages after the school board demoted her and voted not to renew her contract when she reported alleged irregularities in the district’s Head Start program, other administrative operations, and the board’s compliance with New Mexico’s open-meetings law.
Ms. Casey told the board president that as many as half the district’s families with children enrolled in Head Start—the federal preschool program for disadvantaged children—came from families that appeared to have incomes too high to qualify for participation.
When the board president rebuffed her, Ms. Casey sent her concerns to federal Head Start officials, who ordered the district to reimburse more than $500,000 in federal aid.
After she advised the board that it was violating the open-meetings law, and seeing no change, she filed a complaint with New Mexico’s attorney general, who wrote to the board president about the allegations. The attorney general later determined that the board had violated the law and ordered corrective action.
Ms. Casey sued, alleging retaliation for exercising her First Amendment rights.
A federal district judge in Albuquerque refused to dismiss the case, and the district appealed to the U.S. Court of Appeals for the 10th Circuit, in Denver.
Before the appeals court heard arguments in the case, the Supreme Court issued its Garcetti decision. Applying the high court precedent in a Jan. 24 decision, a three-judge 10th Circuit court panel held unanimously that Ms. Casey was “acting pursuant to her official duties” in reporting problems with the Head Start program.
“[I]t is undisputed that Ms. Casey was designated by the board as the CEO and person primarily responsible for the sound administration of the district’s Head Start program,” including overseeing compliance with federal regulations, Judge Neil M. Gorsuch wrote.
The panel also concluded that Ms. Casey’s speech about problems in other administrative operations was also part of her job—and ineligible for free-speech protection.
But the panel came to a different conclusion about Ms. Casey’s allegations with respect to the board’s violations of the state open-meetings law.
“Neither the board nor any other legal authority ever assigned Ms. Casey responsibility for the board’s meeting practices,” Judge Gorsuch wrote. “Accordingly, we conclude that Ms. Casey’s conduct fell sufficiently outside the scope of her office to survive even the force of the Supreme Court’s decision in Garcetti.”
The court ruled that Ms. Casey could pursue her claim of retaliation in the district court, based on her reporting of the open-meetings-law violations.
For more stories on this topic see Law and Courts.
