The following article is in the current edition of the International Association of Chiefs’ of Police (IACP) magazine and addresses the issue of “whistle blowing” by law enforcement officers and when, and what, protections apply under the First Amendment. The case arose out of an incident with the Burbank Police Department and resulted in an in-depth review and analysis of the First Amendment and public sector employees.
The decision by the en banc panel of the Ninth Circuit U.S. Court of Appeals raises as many questions as it answers. As such, and as with all legal issues, we urge that you seek out and secure advice and guidance from your agency’s legal advisor.
As always, should you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 — 1400 or via email at mjm@jones-mayer.com.
Chiefs Counsel
Police “Whistleblowers” and the First Amendment
By Martin J. Mayer, General Counsel
California State Sheriffs’ Association and the California Police Chiefs Association,
Fullerton, California
On August 22, 2013, the Ninth Circuit U.S. Court of Appeals, in a unanimous en banc decision (11-0), held, in Dahlia v. Rodriguez, that officers may have First Amendment protection against employer retaliation when speaking out about alleged department misconduct and corruption.
The en banc panel overruled earlier decisions by a district court judge and a three-judge panel ruling that City of Burbank, California, detective Angelo Dahlia’s disclosure of officer misconduct was not protected by the First Amendment. The three judge panel held that “Dahlia’s disclosure to the Los Angeles Sheriff’s Department (LASD) of his fellow officers’ misconduct was not subject to First Amendment protection because he had a professional duty, as a matter of California case law, to report misconduct. The district court also held that Dahlia’s placement on administrative leave did not constitute an ‘adverse employment action.'”1
In reaching that conclusion, the district court had relied on the case of Huppert v. City of Pittsburg.2 However, the en bane court overruled Huppert in reaching this decision and held that (1) after Garcetti v. Ceballos, courts must make a “practical” inquiry when determining the scope of a government employee’s professional duties; (2) that Huppert erred in concluding that California broadly defines police officers’ duties as a matter of law for the purpose of First Amendment retaliation analysis; and (3) placement on administrative leave, even with pay, can constitute an adverse employment action.3
Public Employees and First Amendment Rights
The en bane court reviewed the rights of public employees pursuant to the First Amendment, which initially involved a two-step analysis. In the case of Pickering v. Board of Education,“the Supreme Court defined a balancing test for First Amendment retaliation cases involving public employees. The task for us is to seek ‘a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. “‘4
“In the classic whistleblower case the state has no legitimate interest in covering up corruption and physical abuse. As an inevitable result of the Court’s jurisprudence and sound public policy, the First Amendment generally protects public employee whistleblowers from employer retaliation.”5
The court noted that since the Pickering decision, “we have further refined the Court’s balancing test into a five-step inquiry. We ask: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.”6
In 1983, the U.S. Supreme Court decided the case of Connick v. Myers, which involved a deputy district attorney who was upset over her transfer and prepared a questionnaire that she distributed to the other assistant district attorneys in the office concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns. She was terminated for refusing the transfer and because her distribution of the questionnaire was considered an act of insubordination.
The district court and the court of appeals found that the questionnaire, not the refusal to accept the transfer, was the real reason for respondent’s termination. The court held that the questionnaire involved matters of public concern and that the state had not “clearly demonstrated” that the questionnaire interfered with the operation of the district attorney’s office. The U.S. Supreme Court reversed.
Citing Pickering, the Court stated that “in determining a public employee’s rights of free speech, the problem is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”7
“When a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior. Here, except for the question in respondent’s questionnaire regarding pressure upon employees to work in political campaigns, the questions posed do not fall under the rubric of matters of ‘public concern.'”8 As such, once it was decided that the speech did not involve matters of public concern, there was no need to engage in the balancing of interests.
The Court noted, however, that “(i)n Pickering, the Court held impermissible under the First Amendment the dismissal of a high school teacher for openly criticizing the Board of Education on its allocation of school funds between athletics and education and its methods of informing taxpayers about the need for additional revenue. Pickering’s subject was “a matter of legitimate public concern” upon which “free and open debate is vital to informed decision making by the electorate.”9
Facts in Dahlia
Following an armed robbery on December 28, 2007, Angelo Dahlia, a Burbank Police Detective, reported to Lieutenant Jon Murphy that he had observed other officers, including Lieutenant Omar Rodriguez, assaulting and beating the robbery suspects while interrogating them at the police department. “Murphy responded by telling Dahlia to ‘stop his sniveling.'”10
The physical beatings continued, and, at one point, “Chief of Police Stehr appeared at a briefing and, upon learning that not all of the robbery suspects were in custody, said, ‘Well then beat another one until they are all in custody.'”11 After witnessing the ongoing misconduct and abuse, Dahlia again reported his concerns to Lieutenant Murphy who responded negatively and did nothing to stop the beatings.
“In April 2008 officers learned that BPD’s Internal Affairs (IA) unit was planning to investigate the unlawful physical abuse and the other illegal procedures relating to the Porto’s robbery investigation. Around the same time, Rodriguez began going out of his way to monitor Dahlia and ultimately threatened him not to say anything to IA.”12
After Dahlia was interviewed by IA, he was confronted by Lieutenant Rodriguez and Sergeant Edgar Penaranda, who demanded to know what he said to the IA investigator. Dahlia, fearing for his safety, denied saying anything. Subsequently, he was interviewed two more times and, each time, was confronted and/or threatened by Rodriguez and others.
In January 2009, rumors circulated more widely that the FBI had been contacted about commencing an investigation. At some point, Murphy told Dahlia, “It’s on. The Feds aredoing an investigation and heads are going to roll. Don’t say anything.” Penaranda told Dahlia, “It’s gonna be bad. You can’t say anything.” Rodriguez also approached Dahlia and told him “not to talk to the feds.”
On April 2, 2009, Rodriguez called Dahlia into his office, told Dahlia to sit down, and closed the door and the blinds. Rodriguez then retrieved his gun from its holster, looked at Dahlia, and placed the gun in a drawer. [Rodriguez then threatened Dalia and said he could create a case resulting in Dahlia’s going to jail.] Dahlia reported this incident to the Burbank Police Officers’ Association president, who reported it to the Burbank City Manager.
On May 11, 2009, LASD interviewed Dahlia about the Porto’s robbery investigation. During the interview, Dahlia disclosed the defendants’ misconduct, threats, intimidation and harassment. Four days later, Dahlia was placed on administrative leave pending discipline.13
In November 2009, Dahlia filed his § 1983 complaint alleging the following seven claims:
1. Retaliation against a public employee for speech disclosing police misconduct, in violation of the First Amendment;
2. Retaliation against a public employee for disclosing information to a government or law enforcement agency, in violation of California Labor Code section 1102.5;
3. Retaliation against a public employee for making an oral or written complaint to a governmental agency, in violation of California Labor Code section 6310;
4. Retaliation against a public employee for disclosing an abuse of authority or a substantial and specific danger to public health or safety, in violation of California Government Code section 53298;
5. A violation of the Bane Act, California Civil Code section 52.1(b), which prohibits interference with the exercise of constitutional rights;
6. Intentional infliction of emotional distress; and
7. Negligent infliction of emotional distress.
Motions were made for summary judgment by the city and individual defendants based on Huppert. “(T)he district court determined that Dahlia’s § 1983 claim was barred because (1) he spoke pursuant to his official duties and thus was not constitutionally protected, and (2) placement on paid administrative leave is not an adverse employment action. The district court accordingly dismissed Dahlia’s § 1983 claim with prejudice, and declined to exercise supplemental jurisdiction over Dahlia’s state law claims.”14
As the en bane court noted, “a panel of this court reluctantly affirmed on the ground that it was bound by Huppert v. City of Pittsburg to conclude that Dahlia spoke pursuant to his official duties.” Additionally, the panel stated that ‘the result that reports of police misconduct are not protected by the First Amendment is dangerous.’ Contrary to the district court, the panel found that placement on administrative leave and the resulting consequences, ‘if proven, . . . may very well constitute an adverse employment action.”‘15 Following the decision by the three-judge panel, the Ninth Circuit then granted rehearing en banc.
The En Banc Court’s Analysis
“It is well settled that the state may not abuse its position as employer to stifle ‘the First Amendment rights [its employees] would otherwise enjoy as citizens to comment on matters of public interest.”‘ Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) (alteration in original) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). Moreover, the public has a strong interest in hearing from public employees, especially because “[g]overnment employees are often in the best position to know what ails the agencies for which they work.”Waters v. Churchill, 511 U.S. 661, 674 (1994). “It may often be the case that, unless public employees are willing to blow the whistle, government corruption and abuse would persist undetected and undeterred.”16
In Garcetti v. Ceballos, Ceballos, a deputy district attorney, reported to his superiors, as part of his job as a calendar deputy, that a police affidavit contained “serious misrepresentations” and, as such, the case should not be prosecuted. His superiors disagreed, and following “a heated meeting attended by Ceballos,” they decided to proceed with the prosecution. At a hearing on a defense motion to challenge the warrant, Ceballos recounted his observations about the affidavit, but the trial court rejected the challenge. Ceballos was subsequently disciplined for his actions, and he sued for violations of his First Amendment rights.17
“In Garcetti, the Supreme Court narrowed the First Amendment protections for public employees. The Court added an additional requirement to the Pickering balancing test, holding that the First Amendment does not protect employee speech when that speech is ‘pursuant to . . . official duties.”‘18 The Court held that “[t]he controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy.”19
“Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance.”
The Court concluded that “The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee’s professional duties for First Amendment purposes.”20
“Three years after Garcetti, a panel of this court decided Huppert v. City of Pittsburg, another § 1983 First Amendment retaliation case. The Huppert majority affirmed the grant of summary judgment to the defendant, holding that California police officers acted pursuant to their official duties when they investigated and reported on corruption within the police department by (1) assisting the District Attorney as ordered, (2) defying the police chief’s orders and continuing an investigation at the behest of an immediate supervisor, (3) cooperating with the FBI, and (4) testifying before a grand jury.”2l
The Huppert majority “relied on a 1939 California court of appeal decision to conclude, as a matter of law, that an officer acted pursuant to his official duties in cooperating with the FBI and testifying before a grand jury, [relying on Christal v. Police Comm ‘n of City of San
Francisco].”22
The full statement in Christal follows:
The duties of police officers are many and varied. Such officers are the guardians of the peace and security of the community, and the efficiency of our whole system, designed for the purpose of maintaining law and order, depends upon the extent to which such officers perform their duties and are faithful to the trust reposed in them. Among the duties of police officers are those of preventing the commission of crime, of assisting in its detection, and of disclosing all information known to them which may lead to the apprehension and punishment of those who have transgressed our laws. When police officers acquire knowledge of facts which will tend to incriminate any person, it is their duty to disclose such facts to their superiors and to testify freely concerning such facts when called upon to do so before any duly constituted court or grand jury. It is for the performance of these duties that police officers are commissioned and paid by the community.23
However, the en banc panel stated that “In relying on Christar s sweeping description of a California police officer’s professional duties, the Huppert majority failed to heed Garcetti’s mandate that ‘the proper inquiry [to determine the scope of an employee’s professional duties] is a practical one.’ The Court’s stated reason for requiring such an inquiry is precisely because `employers [cannot] restrict employees’ rights by creating excessively broad job descriptions.'”
As such, “we overrule Huppert to the extent that it improperly relied on a generic job description and failed to conduct the ‘practical,’ fact-specific inquiry required by Garcetti. In so holding, we reject the defendants’ argument that California police officers are unique for the purposes of First Amendment retaliation claims.” (Emphasis Added)24
The en bane panel further noted that
because of the fact-intensive nature of the inquiry [regarding the employee’s duties], no single formulation of factors can encompass the full set of inquiries relevant to determining the scope of a plaintiff’s job duties. However, we find that existing case law and common sense dictate a few guiding principles relevant to the case before us.
First, particularly in a highly hierarchical employment setting such as law enforcement, whether or not the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.25
As such, the en bane panel stated that “when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job. . . .”26 However, if “a public employee takes his job concerns to
persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen. “27
“Second, the subject matter of the communication is also of course highly relevant to the ultimate determination whether the speech is protected by the First Amendment.” For example, “when an employee prepares a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence, the employee’s preparation of that report is typically within his job duties.”
“Third, we conclude that when a public employee speaks in direct contravention to his supervisor’s orders, that speech may often fall outside of the speaker’s professional duties. Indeed, the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a ‘practical’ matter, within the employee’s job duties notwithstanding any suggestions to the contrary in the employee’s formal job description.”
“(W)e think that it is relevant to the resolution of Dahlia’s case that Dahlia disclosed misconduct to LASD in contravention of the numerous threats and admonitions from his superiors not to reveal the misconduct to anyone. Even assuming arguendo that Dahlia might normally be required to disclose misconduct pursuant to his job duties, here he defied, rather than followed, his supervisors’ orders. As part of a ‘practical’ inquiry, a trier of fact must consider what Dahlia was actually told to do.”
“Because the district court granted a Rule 12(b)(6) motion to dismiss, our task is not to resolve any factual dispute, but merely to determine whether Dahlia’s allegations support a reasonable inference that he acted outside of his professional duties in each instance.”
“Ultimately, Dahlia disclosed the defendants’ misconduct, threats, and harassment to LASD when interviewed about the Porto’s robbery investigation. In doing so, Dahlia clearly spoke outside the chain of command and, indeed, to an outside agency altogether. Whether Dahlia ultimately acted pursuant to his job duties when he disclosed misconduct to LASD may well turn on whether discovery reveals that Dahlia’s supervisors instructed him to meet with and disclose information to LASD or in fact Dahlia did so of his own volition. Construing the complaint in Dahlia’s favor, his disclosure to LASD is protected by the First Amendment.”28
The en bane panel also concluded that that, “under some circumstances, placement on administrative leave can constitute an adverse employment action.” One factor to be considered is “whether the action is ‘reasonably likely to deter employees from engaging in protected activity.’”
Although the court notes that it has not previously held that placing one on administrative leave with pay is an adverse employment action, “Dahlia’s assertions—that administrative leave prevented him from taking the sergeant’s exam, required him to forfeit on-call and holiday pay, and prevented him from furthering his investigative experience—if proved, would constitute an adverse employment action.”
The court concluded by stating that “we overrule Huppert v. City of Pittsburg and hold that Dahlia has sufficiently stated a claim pursuant to 42 U.S.C. § 1983, namely that he was retaliated against for his protected speech. We remand to the district court for further proceedings consistent with this opinion.”29
Conclusion
The court remanded the matter back to the district court for further proceedings, which will include a trial to determine, among other things, the scope of Dahlia’s job responsibilities. For example, the court stated that “whether Dahlia ultimately acted pursuant to his job duties when he disclosed misconduct to LASD may well turn on whether discovery reveals that Dahlia’s supervisors instructed him to meet with and disclose information to LASD or in fact Dahlia did so of his own volition.”
It is also possible that the City of Burbank will petition the U.S. Supreme Court for review, and, if it is accepted by the Court, this decision will be held in abeyance. Outside counsel for the city was reported as stating that such an appeal is possible.
Assuming, however, that the reasoning of the en bane panel is not modified or changed, agencies must recognize that the First Amendment protections, generally afforded “whistleblowers,” will be applied to law enforcement officers depending on facts and circumstances. One concern raised by law enforcement administrators is whether a “whistleblower” is protected under the First Amendment for expressing his or her opinion regarding misconduct, whether or not it is accurate.
Another concern, raised by labor attorneys, is the impact of an internal policy mandating that all complaints of alleged officer misconduct must be reported through the chain of command and not shared with outside persons or the media. Such a policy would, ostensibly, exist to allow the agency to investigate such claims of misconduct and discipline those involved, if the complaints are sustained.
It would seem axiomatic that law enforcement officers should report abuses by other officers and it should not be subject to debate. The only issue appears to be whether or not it is considered a job duty and whether or not the First Amendment protects those reporting such misconduct from internal adverse employment action if those reports are made outside the chain of command. That, apparently, will be determined on a case-by-case basis.
The First Amendment is a complex area of law; it is even more so when it involves public sector
employees. As such, it is imperative that law enforcement management seek out advice and
guidance from legal counsel on such matters.
Notes:
1 Dahlia v. Rodriguez, D.C. No. 2:09-cv-08453-MMM-JEM (9th Cir. 2013).
2Huppert v. City of Pittsburg, 574 F.3d 696 (9th Cir. 2009).
3Garcetti v. Ceballos, 547 U.S. 410 (2006).
4Dahlia, citing, Pickering v. Board of Education, 391 U.S. 563, 568 (1968); and
Connick v.Myers, 461 U.S. 138, 142 (1983).
5 Dahlia (2013).
6 Id.
7Connick v. Myers, 461 U.S. at 142.
8 Id.
9 Id. at 145, citing Pickering, 391 U. S. at 571-572.
10 Dahlia(2013).
11 Id.
12 Id.
13 Id.
14 Id.
15 Id.
16 Id.
17 Garcetti, 547 U.S. at 421.
18 Dahlia (2013)
19 Garcetti,547 U.S. at 421.
20 Id.at 421-422.
21Dahlia (2013).
22 Id.
23Christal v. Police Comm ‘n of City of San Francisco, 92 P.2d 416 (Cal. Dist. Ct. App. 1939).
24 Dahlia (2013).
25.Id.
26Dahlia, quoting Davis v. McKinney, 518 F.3d 304,313 (5th Cir. 2008).
27 Dahlia, quoting Davis, at 313 (citing Freitag, 468 F.3d 528).
28 Dahlia (2013).
29 Id.
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