Employment Law Daily First Amendment may protect officer from retaliation for aiding FBI investigation
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Friday, July 8, 2016

First Amendment may protect officer from retaliation for aiding FBI investigation

By Dave Strausfeld, J.D. The First Amendment might protect a police sergeant from retaliation for aiding an FBI investigation into corruption by police department and town officials, held the Fifth Circuit, reversing a summary judgment ruling. His involvement in the FBI investigation did not appear to be within the ordinary perimeters of his job duties, especially since he was forbidden to disclose it to anyone in the police department, so he appeared to be communicating with the FBI in his capacity as a "citizen." But on a separate issue, he did not state a False Claims Act whistleblower retaliation claim against individual town officials because a 2009 amendment did not expand the FCA to provide individual liability (Howell v. Town of Ball, July 1, 2016, Jolly, E.). Assisted FBI by wearing a wire. In 2008, a police sergeant in a small Louisiana town contacted the FBI to report that local officials had submitted fraudulent applications to obtain federal disaster recovery funds from FEMA. The sergeant agreed to wear a wire and secretly record conversations with the mayor and other municipal employees, including at least one fellow officer. The federal investigation eventually led to criminal indictments against the mayor and the police chief. When a new police chief was appointed, he became suspicious of the sergeant and allegedly would ask him whether he was "wearing a wire"—even once insisting he unbutton his shirt to confirm that he was not. Later, the sergeant confronted the new chief at his home on one occasion after hearing rumors he was being investigated for purportedly stealing a USB flash drive from a coworker’s foot locker. After a "heated discussion" between them, the police chief recommended to the Board of Aldermen that the sergeant be terminated for insubordinate conduct. The Board held a hearing and voted unanimously to end the sergeant’s employment. "Citizen" speech? On the sergeant’s claim that he was retaliated against for his communications with the FBI, the parties disagreed about whether he was speaking as a "citizen"; only citizen speech is protected by the First Amendment. He emphasized that, under the Supreme Court’s recent clarification of its Garcetti decision in Lane v. Franks, the relevant question was whether the speech at issue was "ordinarily" within the scope of his job duties. As he saw it, his ordinary professional obligations as a police officer did not include secretly participating in an external agency’s investigation into municipal corruption. Because he spoke to the FBI as a citizen, his speech could qualify for First Amendment protection, he argued. Confidential nature was key factor. Agreeing, the Fifth Circuit underscored that the sergeant’s statements to the FBI were made "without the knowledge or permission of anyone else" in the police department. Indeed, he was forbidden from telling anyone at the department that he was aiding the FBI by recording conversations, since doing so would have compromised the investigation. The confidential nature of his "speech alone suggests that it was not part of his ‘ordinary’ professional duties," the appeals court explained. While it may be true that police officers have a general duty to "detect and prevent crime," as the defendants maintained, the sergeant "has shown that his involvement in the FBI investigation was not within the ordinary perimeters of his job duties, and thus that his involvement in the FBI investigation was a protected First Amendment right." Immunity questions. Nonetheless, the appeals court next explained, the individual defendants were entitled to qualified immunity because the sergeant’s First Amendment claim was not "clearly established" at the time of his discharge. Back in 2011 when he was fired, "Garcettis distinction between speech made pursuant to official duties and speech made as a private citizen was relatively new," and there was no circuit guidance on how Garcetti might apply to a police officer’s statements to an outside law enforcement agency. But the sergeant could proceed with his First Amendment retaliation claim against the town itself, because qualified immunity is not available to a municipality. And under the Supreme Court’s Monell decision, there was a basis for imposing liability on the town, as a reasonable jury could infer that the Board of Aldermen, acting as the official policymaker, "reflexively" approved the sergeant’s discharge with awareness of the alleged retaliatory motive behind it. False Claims Act. On a separate issue in the case, the appeals court held that the sergeant could not bring FCA whistleblower retaliation claims against individual defendants such as the mayor or police chief. It has long been held that only an "employer" is subject to suit under the FCA, as the sergeant recognized. But he pointed to a 2009 amendment that removed any express reference to retaliatory acts committed by an "employer," asserting that Congress now intended to permit FCA whistleblower retaliation claims to be brought against individuals. The appeals court was not convinced, finding no authority to support his reading of the 2009 amendment. "More importantly," viewing the amendment as a whole, it was clear to the court that the reference to an "employer" was deleted "to account for the broadening of the class of FCA plaintiffs to include ‘contractors’ and ‘agents,’ not to provide liability for individual, non-employer defendants."

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