Employment Law Daily Last chance agreement barring negative comments by officer was unconstitutional prior restraint
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Friday, September 7, 2018

Last chance agreement barring negative comments by officer was unconstitutional prior restraint

By Joy P. Waltemath, J.D.

Because a community service officer was speaking pursuant to her official duties when she responded to a citizen question at a community event about perceived racial profiling by the city police department, the Ninth Circuit held her speech did not enjoy First Amendment protection. It accordingly affirmed summary judgment in the police department’s favor on her Section 1983 First Amendment retaliation claim. But the last chance agreement that the officer was required to sign before returning to work, which restricted her from saying or writing anything negative about the police department, the city, or its employees, was an unconstitutional prior restraint on her speech as a private citizen on matters of public concern—an overbroad restriction that the city could not justify by conjectural “workplace disruption.” Left to be determined by the district court on remand, however, was whether the city manager had delegated final policymaking authority over employee discipline to the police chief—in which case Monell municipal liability would attach to the city for the police chief’s First Amendment violation in requiring her to sign the LCA (Barone v. City of Springfield, September 5, 2018, Smith, M. Jr.).

CSO’s role. The community services officer (CSO) was a victim advocate and a police department liaison to the city’s minority communities; the Latino community complained to her about racial profiling by the department throughout her tenure, which began in 2003. She conveyed those concerns to department leadership. In 2014 she was investigated for two incidents, one involving a tour during which students took photographs in restricted areas, and the other involving a message she left with dispatchers about a potential crime.

Last chance agreement. In early 2015, the CSO spoke at a department-sponsored city event, in uniform, for which she was paid, where an audience member asked her whether she was aware of increased racial profiling complaints; she said she had heard such complaints. The next week she was suspended due to alleged untruthfulness in connection with the investigations of the two incidents, and she remained on administrative leave for several months until she was suspended for four weeks without pay based on those investigations. In order to return to work, she was presented with a mandatory LCA; she refused to sign it “because it prohibited her from reporting on racial profiling and discrimination.”

The police chief then provided her with an amended agreement, which barred the CSO from saying or writing anything negative about the department, the city, or their employees—although she could report complaints involving discrimination or profiling by the department. The amended LCA also said she would remain subject to a generally applicable order that barred her from publicly criticizing or ridiculing the department and barred her from releasing confidential information. She refused to sign this agreement as well and was fired. She eventually sued for First Amendment retaliation under § 1983 and prior restraint, but the district court granted summary judgment to her employer.

First Amendment retaliation. On appeal, the officer first asserted that the department retaliated against her after she responded at a public event to a citizen inquiry about racial profiling by the police department. Agreeing with the district court, the Ninth Circuit noted that her claim failed because she spoke as a public employee, so her speech was not protected by the First Amendment. Responding to a citizen inquiry about racial profiling by the department was clearly a matter of public concern, but the event also clearly fell within her job duties. She was speaking at a “community event” with “the general public” where she was describing the department’s services and discussing issues relevant to the Hispanic community.

Speech in her official capacity. This meeting was part of the department’s “outreach to multicultural communities.” The CSO was speaking as a representative of the department discussing her work with the department, and she responded to an inquiry about racial profiling complaints, a type of complaint she regularly received in her capacity as a CSO. She had special access to the event because of her position, highlighted by the event’s title: “Come Meet Thelma Barone from the Springfield Police Department.” Not only did her speech fall within the “tasks [she] was paid to perform,” but she spoke while wearing her uniform, while on the clock, and in a location she had access to by virtue of her position as CSO, the appeals court stressed, affirming the district court.

Prior restraint. But the Ninth Circuit reversed on the LCA that the CSO was required to sign before returning to work, finding it was an unconstitutional prior restraint. While the Pickering test is most often applied in the retaliation context, it is also used it to evaluate prospective restrictions on government employee speech. Pickering requires a two-step approach for evaluating the competing interests involved in government restrictions on employee speech: first, whether the restriction affects a government employee’s speech “as a citizen on a matter of public concern,” and if it does, “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.”

Last chance agreement’s restrictions. The amended LCA barred the officer from saying or writing anything negative or disparaging about the department, the city or its employees—except for reporting police “discrimination or profiling.” This clearly restrained the CSO’s speech as a private citizen (as well as speech respecting her official duties) on matters of public concern. The amended LCA did not need to reference citizen speech in order to be understood to forbid citizen speech, reasoned the Ninth Circuit. Although the city asserted several justifications for the restrictions, most were what the appeals court characterized as restatements of general principles about the interest of government employers in regulating the speech of their employees.

Not narrowly tailored. General principles, detached from any evidence in the record, were not enough justify the restrictions. The LCA contained no limiting language restricting its bar on negative speech to certain subject matters. Concerns about potential disruptive speech by the CSO in the future also failed. The employer needed evidence of past disruption or evidence that the anticipated harm is “real, not merely conjectural,” and here the restriction was not limited to employment-related speech, let alone speech that reasonably could cause a disruption at the department, reasoned the appeals court.

Nor was the restriction narrowly tailored to speech that implicated the department’s justifications, since the LCA’s language made no distinction between speech that reasonably could be expected to disrupt the department’s operations and speech that would not cause a disruption. As a result, the Ninth Circuit concluded that the LCA’s prospective restriction violated the First Amendment.

Monell liability. A city or other local government entity may be liable in a § 1983 action under Monell v. Department of Social Services, a 1978 U.S. Supreme Court decision, if the plaintiff proves that the municipality caused the plaintiff’s injury. There are three ways to do this: (1) a municipal employee committed the constitutional violation pursuant to an official policy; (2) the employee acted pursuant to a longstanding practice or custom; and (3) the employee functioned as a final policymaker. According to the Ninth Circuit, the issue here was whether the police chief acted as a final policymaker in the area of employee discipline for the department, which here was a matter of state law.

Did city manager delegate his authority to chief? The appeals court concluded that the city manager possessed final policymaking authority, and there was a triable issue of material fact as to whether the city manager delegated his final policymaking authority over employee discipline in the police department to the chief. If that authority had been delegated, the city would be liable under Monell, so this issue was reversed and remanded and, on remand, the district court additionally could consider whether Monell liability can be established through the existence of a longstanding practice or custom.

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