Vol. 24 No. 26 – Limitations On Public Employee’s Freedom Of Speech


December 23, 2009

The “right” of public sector employees to speak out on work-related issues does not, necessarily, have the protection of the First Amendment.  Normally, one is permitted to express his or her opinion about government, its operations and its employees.  It is considered protected speech when it involves matters of “public concern” and is expressed by a member of the public.  However, if that individual is a public sector employee, and speaks out in that capacity, the situation is viewed differently.

For example, in the recent opinion entitled Kaye v Board of Trustees of the San Diego County Public Law Library (2009)179 Cal.App.4th 48,  the Fourth District Court of Appeal held that when an employee makes statements pursuant to official job duties, the employee is not speaking as a private citizen for First Amendment purposes.  Accordingly, if the employee makes negative statements constituting insubordination against his or her employer or management personnel pursuant to official job duties, neither the federal nor state constitutions will insulate the employee from discipline, including dismissal, for the employee’s speech.


In February 2006, a representative from the Administrative Office of the Courts (“AOC”) contacted the San Diego County Public Law Library (“Library”) requesting a panel member for a program designed to help self-represented litigants with appeals.  A Library staff member referred the AOC representative to Plaintiff, Michael Kaye.  Because Kaye’s supervisor, Joan Allen-Hart, was on sick leave that week, Kaye requested permission to participate in the program from the Library’s director, Robert Riger.  Riger approved Kaye’s request.

When Allen-Hart returned to work and learned of the invitation, she questioned its genesis and why the request had not been routed through either her or Riger first.  Allen-Hart directed an inquiry into the matter.  Angered by the inquiry, Kaye rescinded his acceptance to participate in the program.

Kaye thereafter sent Allen-Hart a lengthy email, which he copied to his coworkers, questioning Library management’s treatment of reference librarians, the assignment of Library personnel and criticizing recent schedule changes implemented by Allen-Hart.  Kaye further stated that Allen-Hart’s implementation of the schedule changes was “hypocritical,” and “smack[ed] of autocracy.”  Finally, Kaye asserted that the inquiry concerning the AOC program constituted a pretext to discipline him or harass him into an early retirement.

The day after Kaye sent the critical email, Kaye was placed on administrative leave pending an investigation of the email.  Approximately two weeks later, Library management sent Kaye another letter notifying him that he was subject to discharge for “insubordination and serious misconduct.”  In response, Kaye submitted a “post-termination administrative appeal” to the Library’s Board of Trustees.  After considering the matter in two separate sessions, the Board voted to discharge Kaye.

Kaye subsequently filed a complaint for wrongful termination asserting various causes of action, including that his discharge violated the free-speech clause set forth in article I, section 2, subdivision (a) of the California Constitution.  Kaye also asserted that his discharge violated the whistle-blower protections set forth in the California False Claims Act.  The trial court granted summary adjudication as to each of the state law causes of action.


The California Court of Appeal affirmed the trial court’s decision to grant summary adjudication in favor of the employer on each of Kaye’s state law causes of action.  Specifically, in response to Kaye’s contention that his email to Allen-Hart constituted protected speech under the California Constitution’s free-speech clause, the court applied the United States Supreme Court’s recent decision in the case entitled Garcetti v. Ceballos (2006) 547 U.S. 410.

In Garcetti, a deputy district attorney (Ceballos) claimed his employer retaliated against him for writing a memorandum questioning the truthfulness of an affidavitfiled by a deputy sheriff that was used to support a search warrant. Ceballos recommendeddismissal of the related criminal case.  Ceballos’s superiors disagreed with his conclusions and did not dismiss the case.  Ceballos then informed defense counsel that he believed the facts in the affidavit were untrue.  As a result, the defense called Ceballos as its witness and he testified on behalf of the defendant.  Ceballos claimed the District Attorney thereafter disciplined him in retaliation for exercising his First Amendment rights.

The employer asserted that the memorandum was not protected speech under the First Amendment to the United States Constitution because Ceballos wrote it as part of his employment duties as a deputy district attorney, and not as a private citizen.  The Supreme Court agreed and granted judgment in favor of the employer.

The Garcetti Court observed that Ceballos wrote the memorandum as part of his regular job duties.  Accordingly, Ceballos was speaking as a prosecutor fulfilling a responsibility to advise his supervisor about how to proceed with a pending case.  Based upon this analysis, the GarcettiCourt reasoned that restricting an employee’s speech, which owed its existence to a public employee’s professional responsibilities, did not infringe upon any liberties the employee might have enjoyed as a private citizen.  Rather, the employer’s decision reflected its exercise of control over what the employer itself had commissioned of its employees.  Consequently, theGarcetti Court held that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.

The Court of Appeal in Kaye adopted the reasoning of the Garcetti decision, and found that there was no reasoned distinction between the Federal Constitution’s free speech clause and the California Constitution’s free speech clause for purposes of its determination of Kaye’s appeal.  The Court further determined that Kaye’s speech consisted of an email made during the ordinary course of his duties as a public employee.  Accordingly, the Court of Appeal concluded that Kaye could not establish his discharge violated the California Constitution’s free speech clause.  The Court of Appeal further concluded that Kaye’s other causes of action did not have any merit.  As such, the Court of Appeal affirmed the trial court’s judgment in favor of the employer.


Attorneys Jim Touchstone and Kimberly Hall Barlow, partners with Jones & Mayer, recently defended a sheriff and a county, in the Federal District Court in Los Angeles, involving a First Amendment claim filed by a former lieutenant of the department who had served as chief of police services for a city which contracted with the sheriff.  

The lieutenant decided to oppose the incumbent sheriff in the next election.  He was not successful and, thereafter, was noticed for demotion for making numerous critical comments regarding his employer, its policies, other members of the department, and its command staff, during the course of his political campaign for sheriff.   Before the demotion became effective, the lieutenant retired.  He then sued his employer, alleging a claim of retaliation in violation of the First Amendment. 

 Following a two-week jury trial, the District Court rendered a complete defense verdict for the employer in the case.  Although the comments by the former lieutenant hadn’t been made as part of his employment duties, they were made as a candidate for office, the court ruled that he filled a “policy maker” role (in simple terms, one who is part of the management team and on whom the elected official is entitled to rely for support) and, therefore, in this case as well, his statements were not protected by the First Amendment.



The Kaye decision, in conjunction with the United States Supreme Court’s decision in Garcetti, provides that an employee may be subject to discipline, including termination, for negative speech about his or her employer if the speech is made pursuant to the employee’s official duties.  The determination of whether an employee’s speech is made pursuant to his or her official duties, and appropriate discipline based thereon, must be made on a case-by-case basis, following a thorough investigation of the underlying facts and circumstances surrounding the employee’s speech.

Prior to disciplining an employee for his or her speech activities, we strongly urge you to confer with your agency’s legal counsel in advance of making any such decisions.  Should you wish to discuss these issues in greater detail with counsel who have trial experience in litigating these issues on law enforcement’s behalf, please do not hesitate to contact Martin J. Mayer or Jim Touchstone at 714-446-1400, or via email at mjm@jones-mayer.com or jrt@jones-mayer.com, respectively.