Seventh Circuit Reinforces Governmental Employers’ Power to Sanction Employees for Speech

May 29, 2018

Governmental employers need to balance their interests in providing services and managing employees with their duty to respect the Constitutional rights of their employees. What happens when an employee, after refusing to say what his governmental employer wants him to say, is fired? Does such retribution run afoul of the First Amendment?

Lorenzo Davis worked for Chicago’s Independent Police Review Authority as a supervisor where he collected and reviewed evidence and submitted draft reports regarding investigations of police officers’ possible misbehavior. Davis alleged he was fired because he refused to change the conclusion of some of his reports to look more kindly on the officers involved. Davis said his supervisor directed Davis to change “sustained” findings, which meant punishment for the officer, to lesser findings where the officer would avoid punishment. Davis claimed his firing violated his First and Fourteenth Amendment rights, the Illinois Whistleblower Act, and common law retaliatory discharge. The Seventh Circuit reviewed only Davis’s First Amendment Free Speech claim.

For a public employee to show their speech is protected under the First Amendment, the employee must show (1) the speech was made as a private citizen, (2) the speech addressed a matter of public concern, and (3) the employee’s interest in the speech was not outweighed by the state’s interests as an employer in promoting effective and efficient public service. The court did not need to analyze beyond the first requirement as Davis’s speech, or lack thereof, was as a public employee.

The court sided with the City. Davis’s duties included drafting reports and revising them per his supervisor’s direction. His refusal was pursuant to his job duties. Therefore, his speech fell outside the protections of the First Amendment.

However, it is important to note that Davis may have other, non-Constitutional, grounds for relief in his state claims. The Illinois Whistleblower Act and common law retaliatory discharge claims may still proceed in state court.

In his concurring opinion, Judge Hamilton thought it important to note that speech regarding the altering of reports regarding police officers’ behavior is a matter of public concern. He pointed to a decision out of the Second Circuit, Jackler v. Byrne, 658 F.3d 225 (2011), where a police officer’s First Amendment claim was allowed to proceed where he claimed he was fired for refusing to falsify reports for internal investigations into excessive force complaints. Judge Hamilton noted the difference between Jackler and Davis is that Officer Jackler claimed he was required to make false statements of fact in a report whereas Davis’s claim was that his supervisor had a different interpretation of the facts.

So, governmental employers can discipline their employees for speech-related reasons without running afoul of the First Amendment if that speech fits within the duties of the employee. However, there may be state law claims to navigate so proceed with caution.

For the full opinion, see Davis v. City of Chi., No. 16-1430 (7th Cir. May 8, 2018).

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