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Tuesday, October 25, 2011

Free speech and whistle blowing


Free speech and whistle blowing
Brochu v City of Riviera Beach, 304 F.3d. 1144

The Brochu case interweaves allegations of the suppression of free speech, whistle blowing and retaliation into its fabric.

Steven Lobeck, a City of Riviera Beach police officer, sued the City police department for alleged reverse race discrimination in imposing discipline.

Subsequently, Edward Brochu, another City of Riviera Beach police officer sued the City alleging it had violated Title VII by retaliating against him because he testified against the City in the Lobeck litigation. As an example of such retaliation, Brochu alleged that he was transferred to a less desirable assignment, with significant changes in job duties and responsibilities.

Brochu also sued the City pursuant to 42 USC 1983, claiming that the City had violated his First Amendment rights to free speech because:

1.It had engaged in a pattern and practice of retaliating against employees who exercise their First Amendment rights; 

2.He had responded to a request to participate in an investigation into the City police department by the FBI; 

3.He had actively participated in the election campaigns of various reform candidates for the city council who had made campaign promises to clean up problems in the police department during his "off-hours;" and, 

4.He had met with others to discuss the problems in the police department and to formulate potential solutions.

Brochu alleged that his participation in "these anti-corruption activities" resulted in his being placed on administrative leave and his being subjected to conditions that were so intolerable that he had to resign from his position under circumstances that amounted to constructive discharge.

The jury awarded Brochu $2,000,finding that the City had retaliated against him for engaging in conduct protected by Title VII. Further, the jury awarded him an additional $450,000.00 on his First Amendment claim, finding that protected speech activity was a substantial and motivating factor for the City's decision to place him on administrative leave, an action that amounted to a constructive discharge.

The Circuit Court vacated the jury's determination, holding that Brochu did not prove his 42 USC 1983 claim because he was put on administrative leave for a valid reason that had nothing to do with any speech protected by the First Amendment.

Citing Rankin v McPherson, 483 US 378, the Circuit Court said that "[a]lthough it is well-established that an employer may not discharge a public employee in retaliation for the employee's exercise of his right to freedom of speech, that right is not absolute.

In such a type of case, said the court, "[t]he 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," quoting from Pickering v Board of Education, 391 US 563.

In the words of the Circuit Court:

We have no problem concluding that, under the case law, "speech activity concerning corruption and mismanagement of [a] Police Department and/or . . .support [of] candidates for the City Council" might be a matter of public concern. In this case, however, Brochu was not not merely "commenting upon matters of public concern," i.e., the alleged ineptitude of his superiors and/or the alleged corruption in the police department, nor was he merely publicly campaigning in favor of candidates he felt would support a reform agenda. Rather, he was a major player in the creation and dissemination of a virtually secret plan to overthrow the existing police administration and put himself and his friends in charge.

This, said the court, "was not the sort of public speech activity engaged in by an employee as a citizen who is protected by the First Amendment. This was back-room maneuvering by an employee as an employee which, even if tangentially related to the political process in Riviera Beach and even if motivated by a sincere desire to reform the police department, is not the sort of public discourse which the First Amendment was intended to protect."

The Circuit Court observed that if creating and disseminating such an overthrow plan somehow constituted protected speech, the issue was whether a First Amendment right to participate in that activity was outweighed by the employer's interests under the facts of this case. The court's conclusion:

A Pickering balancing analysis weighing Brochu's interest in engaging in protected activities against his employer's interest in "promoting the efficiency of the public services it performs through its employees" demonstrates that the City would have been entitled to judgment as a matter of law.

Why? Because, the court explained, "[a] police officer is considered "part of a quasi-military organization [and] [i]n a law enforcement agency, there is a heightened need for order, loyalty, morale and harmony, which affords a police department more latitude in responding to the speech of its officers than other government employers."

The Circuit Court concluded that "the secret plan created by Brochu was simply not protected speech activity [but] even if it were, its potential to cause havoc in the police department would ... definitively tip the Pickering balance in favor of the City."

The Circuit Court held that Riviera Beach was entitled to judgment as a matter of law and it was reversible error for the district court not to have granted that motion.

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