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Are public employees protected against discharge and retaliation for things they say as a citizen?


February 20, 2013 by Tom Roberts, Esq.

Are public employees protected against discharge and retaliation for things they say as a citizen?

Public employees do not shed constitutional protections when they enter the work place.    In the absence of proof that the public employee knowingly or recklessly made false statements, a public or government employee has a right to speak as a citizen on issues of public importance without being retaliated against or dismissed from his position.  In 1968, the US Supreme Court in Pickering stated that the scope of a government employee’s First Amendment rights depends on the “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”. Pickering v Board of Education, 391 U.S. 563, 568 (1968).  This balancing has come to be known as the “Pickering Test.”

In the employment context, “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Garcetti v. Ceballos, 547 U.S. 410, 419, 126 S. Ct. 1951, 1958, 164 L. Ed. 2d 689 (2006).

To reiterate, the protected speech must be spoken as a citizen and not as an employee.

For a public employee to state a claim for retaliation under the First Amendment (1) the employee must speak as a citizen on a matter of public concern, (2) the employee’s interest in speaking on the matter must outweigh the government’s interest in providing effective and efficient services to the public, (3) the employee must be “adversely affected” by the alleged retaliation in a manner that “tended to chill his . . . First Amendment rights” and (4) the speech must be a “substantial factor in the decision to take the allegedly [adverse] retaliatory action.” Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 351-52 (4th Cir. 2000).

Ascertaining whether a matter is of public concern requires examination of the “content, form, and context” of the statement. Connick v. Myers, 461 U.S. 138, 147-48, 75 L. Ed. 2d 708, 103 S. Ct. 1684 (1983); Goldstein, 218 F.3d at 352.

Alleged threats against the President of the United States made in roll call at a law enforcement agency, indisputably do constitute matters of public concern. See id. at 353 (statements regarding public safety are “quintessential matters of public concern”); Robinson v. Balog, 160 F.3d 183, 188 (4th Cir. 1998) (speech seeking to bring to light “actual or potential wrongdoing or breach of public trust” is speech on a matter of public concern);

Because the officer’s speech involves a matter of public concern, the court turns to the question of whether his interest in making those statements outweighed the police department’s interest in managing the internal affairs of the office.

The Police Department will undoubtedly claim that it was justified in terminating the officer to protect the office’s efficiency from the disruption caused by the officer’s public disclosure. Undoubtedly, disclosure of alleged threats to the president may impinge upon the harmony among co-workers or interfere with the operation of a police department.

An employer wishing to defend against specific allegations of impermissible retaliation must present evidence that the speech triggering his actions actually interfered with the functioning of his office, and may not merely assert a “generalized and unsubstantiated” interest against disruptions. Goldstein, 218 F.3d at 356;  Robinson, 160 F.3d at 189.

The government’s interest in efficiency generally bears more weight than an employee’s interest in commenting on matters of public concern only when the employee-speaker is an agency-head or is in a policy making position. See McVey v. Stacy, 157 F.3d 271, 278-79 (4th Cir. 1998). The officer of low ranking without policy making authority speech is not such speech weighing in favor of the government’s interest in efficiency.

It is essential to protect the rights of persons having special knowledge or expertise to speak on an issue of public concern.

An official who terminates an individual in retaliation for his speech protected by the First Amendment will not be able to hide behind “qualified privilege” rules created by the courts.  “[By 1990], the law was clearly established that the First Amendment prohibits state action that imposes content-based restrictions on speech…” Collinson v. Gott, 895 F.2d 994, 1011 (4th Cir. 1990)(per curiam)(Opinion of Butzner, J., dissenting and concurring.)  See also Better Gov’t Bureau v. McGraw, 904 F. Supp. 540, 551 (S.D.W.Va. 1995), rev’d and remanded on other grounds, sub. nom. In Re Allen, 106 F.3d 582 (4th Cir. 1997)(holding that a reasonable person would have known that “government officials are prohibited from interfering with, or retaliating against, a citizens’ exercise of his First Amendment rights.”).


Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
105 S. 1st Street
Richmond, Virginia 23219
(804) 783-2000
(804) 783-2105 Fax

This firm has argued these issues in a number of cases including the following:

 Cutts v. Peed, 17 Fed. Appx. 132, 135 (4th Cir. Va. 2001)

Usher v. Spotsylvania (1998)(involving the termination of a fireman for publishing matters of public safety and concern on a website).

The County of Spotsylvania and D. Wayne Usher issued a joint statement stating only that :

“The County of Spotsylvania and D. Wayne Usher have resolved their dispute and are joined in their commitment to free speech and to the protections afforded by the First Amendment to the United States Constitution and are joined in their commitment to the health and safety of the community. The County of Spotsylvania and D. Wayne Usher hope that the issues raised by the dispute will continue to receive the attention of the public and that together the community will work to meet the demands that continued growth and prosperity place upon the government and the volunteers who serve the citizens of Spotsylvania.”


The facts and circumstances of each case are unique and therefore the fact that a law firm has obtained significant verdicts and results in other cases in no way guarantees that other cases will have similar results.


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