police-cap.jpgThe U.S. Court of Appeals for the Ninth Circuit has just issued a decision that expansively describes public employee protected free speech in the context of labor-management relations.  On March 22, 2013, in Ellins v. Sierra Madre, the Ninth Circuit determined that a city police officer who served as union president could state a First Amendment retaliation claim based on his union-related speech.  The speech at issue included his successfully leading a vote of “no confidence” against his Police Chief, and his union’s issuing press releases about the vote and that criticized the Chief’s management style.  The police officer, John Ellins, argued that a subsequent delay in his receiving authorization for a 5% pay increase amounted to retaliation for his engaging in these speech activities.  The trial court had found that Ellins could not make out a First Amendment retaliation claim, and granted motions for summary judgment for the City and Police Chief.  On appeal, however, the Ninth Circuit reversed.  Its opinion touched on many issues that arise in public employee First Amendment cases, and interpreted them in the specific context of employee union-related speech.

For an employee to win a First Amendment retaliation case against his or her government employer, the employee must prove among other things (1) that his or her speech was not on a trivial or mundane workplace issue but instead dealt with a matter of “public concern,” and (2) that the employee spoke as a private citizen, i.e., outside of his or her “official duties.”

In discussing that there was enough evidence for plaintiff’s case to go to a jury, the Court made a number of important points.

First, the Court described that Ellins’s evidence, if the jury believed it, would show that he had spoken on a matter of “public concern.”  The U.S. Supreme Court has previously described public concern as “any matter of political, social, or other concern to the community.”  Applying this standard, the Ninth Circuit has previously described that “individual personnel disputes and grievances” that “would be of no relevance to the public’s evaluation of the performance of governmental agencies” does not constitute a matter of public concern.  In Ellins, however, the Court attributed substantial importance to whether the speech was made by a lone employee (or small group) or instead was speech on behalf of the union.  The Court suggested that the record showed that the speech at issue was not an “individual personnel grievance” but essentially “collective” grievances raised by the union.  In the Court’s view, the fact Ellins spoke for his union could effectively convert his speech into protected speech even if it would not have that protection if spoken by a lone employee.

Second, the Court held that Ellins’s speech was outside of his “official duties.”  Management lawyers have taken the position in these types of cases that a public employee’s speech as a representative of his or her union constitutes speech not as a private citizen but as a government employee, so that it is speech pursuant to “official duties” – duties on behalf of the union, and as part and parcel of the employees’ work for the employer.  As speech pursuant to “official duties” it lacks First Amendment protection vis-à-vis the public employer.  The Court in Ellins rejected this argument, indicating that here, the employee speech as a union President was at odds with management and thus not pursuant to “official duties.”  The opinion described: “Given the inherent institutional conflict of interest between an employer and its employees’ union, we conclude that a police officer does not act in furtherance of his public duties when speaking as a representative of the police union.”

Next, the Court went on to find for the plaintiff on a number of other issues that arise often in employee First Amendment cases.  It determined that the delay in payment of the 5% increase was an “adverse action” against Ellins; that there was enough evidence to go to a jury on whether Ellins’s speech as the Association President was a “substantial or motivating” factor for the adverse action, and that there was enough evidence to go to a jury on whether the Department had “adequate justification” for further evaluating the certificate before signing.  The Court also found that the Chief did not have qualified immunity (a protection from individual liability for constitutional rights not “clearly established”).   

In a silver lining for management, the Court found that the trial court had properly granted the motion for summary judgment by the City.  To prove the liability of the City itself, the plaintiff had to show under the landmark case Monell v. Department of Social Services that one of the following circumstances existed: “the plaintiff was injured pursuant to an expressly adopted official policy, a long-standing practice or custom, or the decision of a ‘final policymaker.’”  The Ninth Circuit in Ellins found that the evidence in the record showed none of these circumstances.

The Ellins case has a concurring opinion by Judge Rawlinson, who opined that the Court was making a decision that was correct on the facts, but that the Court’s opinion did not need to elaborate.  Judge Rawlinson described: “I write separately to clarify that this case was decided on summary judgment and no definitive rulings on the factual issues should have been made by the district court or should be made by us.”  Among other things, Judge Rawlinson was skeptical that the Court could opine conclusively on whether Ellins had spoken pursuant to “official duties.”  His concurring opinion expressed that the matter should be resolved by the trial court on remand based on more complete evidence.

The “take-away” for management:  The Court’s reasoning in Ellins presents a number of theories that make it more likely that public employees serving in their capacity as union officials can state First Amendment retaliation claims against management for speech made in the labor-relations context.  Based on the reasoning in Ellins, union-related “speech” by employees such as “no confidence” votes, union statements about department-wide operations, and other matters, can potentially result in constitutional claims.  It is important to note, however, that the Court’s holding only stated that issues of fact existed to be tried by a jury.  The Court did not conclusively determine the facts in Ellins.

Another pending Free Speech case: Followers of public sector free speech cases will note that there is another significant Ninth Circuit case pending decision in this area.  In Dahlia v. Rodriguez, an “en banc” panel of 11 judges will determine the scope of “official duties” in the law enforcement context.  The Dahlia court is reconsidering the established rule that because peace officers in California have broad job duties to report illegal conduct by anyone, even persons in their own agency, this necessarily brings much whistleblowing activity by officers within the scope of “official duties,” so that the whistleblowing lacks First Amendment protection.  LCW has previously blogged about the Dahlia case, and its rehearing en banc.

The en banc Court heard oral argument on March 20, 2013, only a few days before the Ellins opinion issued.  Questioning by the judges was sharply against a broad interpretation of “official duties” in law enforcement, indicating the Court will likely issue a rule more accommodating to First Amendment claims of law enforcement.  Chief Judge Alex Kozinski, who led the questioning initially on March 20, appeared to favor retaining existing precedent, but refining it to take into account in some way whether the officer’s whistleblowing activity was directed to a law enforcement agency that actually had a duty to investigate the alleged misconduct.

We will keep you advised of the Ninth Circuit’s decision in Dahlia when it issues.  We will also advise whether the Ninth Circuit decides to rehear any aspect of the Ellins case and its holdings on union-related speech.

(As a point of disclosure, our firm is proud to have prepared an amicus curiae brief in support of rehearing en banc of Ellins, on behalf of the League of California Cities.)