Labor & Employment Law Daily County HR director’s report of union official’s allegedly illegal recording was made as a citizen
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Tuesday, October 15, 2019

County HR director’s report of union official’s allegedly illegal recording was made as a citizen

By Wayne D. Garris Jr., J.D.

After the HR director’s complaint to the county’s District Attorney accusing a union leader of illegally recording their meeting, her supervisors began to mistreat her, finally firing her.

Affirming in part and reversing in part dismissal of a county HR director’s complaint, the Third Circuit held that the director did not have due process claim because as an exempt, at-will employee, she did not have a property interest in her employment. However, it reversed the dismissal of her First Amendment claim because her report to the county District Attorney that a union leader illegally recorded their meeting was protected speech. Even though the Director’s job allowed her access to high-ranking county officials, reporting crimes was not part of her primary duties; thus her criminal complaint was made as a citizen, not as a public employee (Javitz v. County of Luzerne, October 10, 2019, Restrepo, L.).

Wiretapping. The primary job duties of the Director of Human Resources for Luzerne County, Pennsylvania, were starting the hiring process for vacant positions, negotiating contracts, responding to employee complaints, responding to grievances, conducting investigations, and attending meetings. She suspected that an AFSCME union representative recorded a meeting, without her consent. The Director reported her suspicions to her supervisor, who accompanied the Director to meet with the District Attorney, and then the Office of the Attorney General. The Director alleged that the County Manager intervened and instructed the District Attorney to drop the matter.

Retaliation. After she made the report, the Director alleged that her supervisor cut her out of assignments and began giving work directly to her subordinates and relocated her office. Eventually the county terminated her and denied her request for a Loudermill hearing.

The Director filed a complaint alleging a Section 1983 claim for violation of her procedural due process rights under the 14th Amendment and for First Amendment retaliation. The district court granted summary judgment for the employer finding that the Director did not have a property interest in her employment and that her speech was that of a public employee, not a private citizen. The Director appealed.

Due process. The Director did not have property interest in her job, explained the appeals court. In Luzerne County, Career Service employees may only be fired for just cause, but Exempt Level Employees are employed at-will; however, the county charter did not establish whether the Director’s position was Career Service or Exempt Level. The Director’s offer letter indicated that her position is exempt and at-will. Based on these facts, the court stated, the Director was hired an Exempt Level Employee and did not have a property interest in her government employment, so she was not entitled to 14th Amendment due process protection.

First Amendment retaliation. The only issue in the Director’s First Amendment claim was whether she spoke as an individual or private citizen. Relying on three Supreme Court cases, Pickering v. Board of Education, Garcetti v. Ceballos, and Lane v. Franks, the Third Circuit concluded that the primary inquiry is whether a public employee’s speech was “informed by or the result of” her primary job duties. Because of who the Director spoke to, what she spoke about, and why she spoke, she was acting as citizen, not a public employee, and her speech was protected.

Who. The district court had found that the Director’s position as a public official allowed her direct access to the District Attorney, which a private citizen would not have. But the Third Circuit disagreed, reasoning that based on its precedent, the fact that she could easily meet with the District Attorney did not support a finding that she spoke as an employee because her speech was not “part of the work [she] was paid to perform on an ordinary basis.”

What. The Director reported a crime, which was outside the scope of her regular duties. The district court focused on the county’s Ethics Code, which encourages employees to disclose possible violations of law or county policy. This emphasis on the Ethics Code was misplaced, stressed the court, as it merely encourages all employees to report misconduct; absent some evidence that the Ethics Code created a formal job duty, it was not enough to establish that the Director was acting as an employee.

Why. In Pennsylvania, investigations of criminal conduct by public employees are a matter of public concern. Even though the Director’s report likely was of personal importance, the court pointed out that she believed she was the victim of a crime and followed up on the status of the investigation; therefore, she was speaking on a matter of public concern. And when the Director spoke with the District Attorney, she was speaking as a private citizen, not a public employee. Accordingly, the appeals court reversed the district court’s dismissal of her First Amendment claims.

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