Labor & Employment Law Daily Investigator’s refusal to alter findings of police misconduct was not protected speech
Thursday, May 10, 2018

Investigator’s refusal to alter findings of police misconduct was not protected speech

By Lisa Milam-Perez, J.D.

A supervisor for the City of Chicago’s Independent Police Review Authority (IPRA) was unable to revive his First Amendment claim alleging he was discharged for refusing to change his findings in several investigations into police misconduct at the behest of his superiors. Refusing to alter his investigatory reports was not constitutionally protected speech, the Seventh Circuit held. The employee “may have had good reasons to refuse to revise his reports,” the appeals court said. “But good intentions alone do not grant First Amendment protection to speech by public employees” (Davis v. City of Chicago, May 8, 2018, Kanne, M.).

Findings of misconduct “sustained.” As a supervisor in the IPRA, the employee collected and reviewed evidence regarding complaints of police misconduct. Upon completing the investigations, he submitted draft reports, with findings of “sustained,” “not sustained,” “exonerated,” or “unfounded,” along with disciplinary recommendations, to the IPRA’s chief administrator, who in turn would submit those report to the police department. The employee alleged that after a new chief administrator came in, he was ordered to change “sustained” findings of misconduct and to alter his reports so they would reflect more favorably on the officers accused of wrongdoing. He refused. Then he was threatened with termination if he did not revise the disciplinary recommendations, but he still wouldn’t budge.

Thereafter, the chief administrator implemented a new policy which required the administrator’s approval for all “sustained” findings. Another new policy provided that investigators would be disciplined for insubordination if they refused to make a change to a report as recommended by the chief administrator.

Discharge, lawsuit. The employee was fired when he again refused to alter a “sustained” finding. He filed suit alleging violations of his First and Fourteenth Amendment rights. He also alleged a violations of the Illinois Whistleblower Act and common-law retaliatory discharge. A federal district court in Illinois dismissed his constitutional claims and refused to exercise jurisdiction over his state-law claims. At issue here was his appeal of the dismissal of his First Amendment claim.

Pursuant to official duties. This one was fairly straightforward, according to the appeals court: The employee’s speech was pursuant to his job duties and therefore was not constitutionally protected. It was his duty to revise reports as his IPRA superiors directed. The city’s municipal code expressly empowered the chief administrator—and not “a mid-level supervisor”—to make disciplinary recommendations, and revising his reports in accordance with the directive of his superiors was made part and parcel of his job duties when the new administrator implemented the policy change. As such, he “spoke” as a public employee, not a private citizen, and his refusal to change the report was not afforded First Amendment protection.

The employee argued that his official duties “could not have included drafting inaccurate and misleading reports to absolve officers of misconduct.” However, while an employee may have good reasons for refusing a superior’s order, it didn’t necessarily follow that he had a constitutional cause of action when he does so, the appeals court said. The court also rebuffed his attempt to distinguish, for First Amendment purposes, between making an affirmative statement and refusing to make one, finding this distinction “meaningless.”

Concurrence. Judge Hamilton concurred but felt it important to stress two critical points—especially in the context here, where investigations into police actions are at issue. First, the speech in question is speech as a matter of public concern, as it addresses the results of official investigations into fatal police shootings and allegations of misconduct. The analytical focus was on the plaintiff’s role as a public employee, which meant that when he was speaking on this matter of public concern, he was not doing so as a private citizen, which is why the speech was not protected. (The district court had mixed up the analysis a bit here.)

A second point of emphasis: The employee did not allege he was fired “for refusing to lie about matters of fact,” Hamilton noted, which would have been more troublesome. Rather, he was discharged for “refusing to accept his boss’s different evaluations of facts.” This critical difference set the case at hand apart from a Second Circuit decision, cited here, in which a police officer was unlawfully discharged “for having refused to make false statements of fact in an investigation of a civilian’s complaint that another officer had used excessive force.”

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