Employment Law Daily Officer spoke as private citizen when reporting official misconduct to FBI
Monday, August 15, 2016

Officer spoke as private citizen when reporting official misconduct to FBI

By Lorene D. Park, J.D. Reversing summary judgment against a fired police officer’s First Amendment retaliation claim against the police chief who fired him after learning that he had reported to the FBI what he believed to be official misconduct (voiding traffic violations due to political favoritism), the Seventh Circuit found that the officer spoke as a citizen because the speech was outside the scope of his official duties and involved a strong matter of public concern. Summary judgment was affirmed, though, as to the Monell claim against the Village because the chief did not have the requisite final policymaking authority (Kristofek v. Village of Orland Hills, August 11, 2016, Williams, A.). Traffic citations voided. In September 2010, the employee was a part-time probationary officer for the Village of Orland Hills, Illinois. He also worked part-time as an officer in the town of Lemont. In November, he ran the license plate of a car driven by a young black man and discovered that the registration was suspended for lack of insurance. He initiated a traffic stop and, when the driver could not provide proof of insurance, he was cited and arrested for that and for driving with suspended license plates. After a flurry of phone calls from the driver’s mother to local politicians (one of whom was a personal friend), the chief of police released the driver and voided the citations. He explained that this was done to protect the officers and the Village from a potential lawsuit but the employee alleged that the deputy chief told him the incident was not the employee’s fault and "was above and beyond you and me." Fired after reporting possible misconduct. In February 2011, the employee left a handgun in the back seat of the squad car he turned in. He offered to resign, but the chief refused saying, "You’re a good police officer Dave and we will learn from this experience." The chief’s opinion changed, however. In April, after attending training on official police misconduct, the employee grew concerned that the voided citations constituted misconduct. He reported his concerns to two other officers, who had escorted the driver to jail, but they refused to help report the matter. He then contacted the FBI. After the chief found out, the employee was fired. The termination notice stated that he was being fired because he "contacted several members of this agency, telling them that the Chief of Police was a criminal and was going to be indicted" and "accused the Village of being corrupt." The February handgun incident was not referenced. Prior proceedings. The employee sued the chief and the Village, claiming his discharge violated the First Amendment and Illinois state law. The district court dismissed his First Amendment claim and remanded the rest to state court. In a prior appeal, the Seventh Circuit reversed, finding the employee adequately pled that his speech related to a matter of public concern (despite his apparent self-interested motivation in avoiding potential punishment), and that the chief possessed enough authority over hiring and firing to state (albeit barely) a Monell claim. On remand, the district court granted summary judgment against the claim against the chief, finding that: the employee had not spoken on a matter of public concern; the police department’s interests in promoting efficient and effective public service outweighed his interest in expressing his speech; his speech was made with a reckless disregard for the truth; and his speech did not cause his termination because the chief was not aware he had contacted the FBI when the employee was fired. In addition, the chief was protected by qualified immunity. The court also tossed the Monell claim against the Village, finding that no constitutional rights were violated and that the chief did not have policymaking authority over firing. Speech as private citizen. On appeal, the Seventh Circuit reversed as to the First Amendment retaliation claim against the chief. Under the Supreme Court decisions in Garcetti and Lane v. Franks, he was speaking as a private citizen because the statements were not made pursuant to his official duties and fell outside the ordinary scope of his duties. His job involved traffic enforcement and placing calls for public service and officer back-up—he was not responsible for pursuing or voiding citations or for determining when arrestees could be released. The fact that his speech bore "some relation to the subject matter of his job" did not change that analysis. Public concern. Moreover, his statements that the driver’s citations were voided and he was released solely due to political favoritism clearly involved a matter of public concern. It did not matter that he was motivated, at least in part, by self-interest because the record indicated that self-preservation was not the "sole motivating force." He went beyond just reporting it within the department to avoid punishment, he sought to alert outside law enforcement. And significantly, there was no evidence that a reporter or anyone else was inquiring into the matter, which might have led the employee to think that punishment was eminent. Pickering balancing. The appeals court also found that Pickering balancing favored the employee because his free-speech interests outweighed the department’s interests, taking into account such factors as the time, place, and manner of the speech; the context of the dispute; whether the speech impeded his ability to do his job; whether the speech would create problems in maintaining discipline or harmony; and whether the employment relationship required loyalty and confidence. The court noted that concern over official misconduct in the highest ranks of the department was a matter of strong public concern and the concern was communicated discreetly. Claim against chief revived. There were also factual disputes on the causal link between the employee’s speech and his termination. While the chief may not have known the employee consulted an attorney and was considering reaching out to an outside law enforcement agency, there was evidence that he asked the other officers if they would be willing to report what they knew and it was undisputed that they informed the chief of the substance of their communications. Thus, the evidence suggested that the employee’s communication with the FBI was a motivating factor in his discharge. There was also evidence suggesting the chief communicated his termination decision to the employee only after the employee referenced his FBI communications. Finally, the chief was not entitled to qualified immunity because the employee adequately demonstrated the chief fired him in retaliation for protected speech and it was clearly established at that time that the First Amendment prohibited retaliating against a public employee for speaking to colleagues and the FBI about public corruption. Monell claim against the Village fails. On the other hand, summary judgment was affirmed with respect to the claim against the Village because the chief did not have "final policymaking authority" as to hiring and firing. The chief lacked independent authority to fire officers; his power was subject to the Village Administrator’s consent.

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