From Ancel Glink's sister labor & employment law blog, The Workplace Report With Ancel Glink
Original post authored by Margaret Kostopulos
Although it seems backwards at times, public employers generally know by now that they can’t take action against an employee who speaks critically about the agency or circumstances within the agency if they are speaking as a private citizen about a situation that is of general concern to the public. In other words, public employees lose their protection under the First Amendment when they speak about matters that are related to their job. That’s pretty clear, but sometimes it’s not so easy to discern if the speech is related to the employee’s job.
Take the case of Kristofek v. Village of Orland Hills as an example. Kristofek was a part time police officer for the Village and a full time police officer for the Village of Lemont. Among his part time officer duties, he was responsible for issuing traffic violations. During the course of his duties, he stopped a driver and ultimately placed him under arrest for driving without insurance and driving with suspended plates. The driver apparently used his one phone call wisely because it wasn’t long before the mayor and the police chief started getting calls from politically influential people requesting that the citations be dismissed and the driver released from custody, which is just what happened.
A few months later Kristofek watched an online training in his capacity with the Lamont police department about instances of official misconduct, causing him to become concerned that the Orland Hills chief was guilty of such when the chief voided the tickets and released the driver involved in his Kristofek’s arrest. He first brought his concerns to one of his superiors, who shared it with another ranking officer and ultimately the issue was brought to the police chief. When no action was taken in the department, Kristofek contacted the FBI. You can probably guess what happened next – Officer Kristofek was fired.
Kristofek sued for violation of his First Amendment right to protected speech. The Village obtained a dismissal of the suit in the lower court on the argument that Kristofek was speaking on matters related to his official duties and therefore did not have First Amendment protection. The 7th Circuit Court of Appeals reversed and has sent the case back for a trial. In reversing the lower court finding, the court of appeals found that while Kristofek’s statements of concern about political corruption concerned his job and certainly the information about which he spoke was acquired as a result of his work, Kristofek’s statements were not related to his official duties and therefore were made by him as a private citizen. Additionally, the court noted that the police chief failed to show that Kristofek’s statements caused disruption in the department, which may have superseded Kristofek’s rights as a private citizen had evidence of such existed.
It is truly a fine line in this case in what capacity Kristofek spoke about corruption. What is clear is the special attention the 7th circuit gave to employee statements related to agency wrongdoing. It noted that public employees are often in the best position to witness wrongdoing in a public agency and First Amendment protections should extend to those situations.
Public employers must carefully analyze the situation before taking action against an employee over what they have to say about the employer’s operations. If statements are made by an employee directly relating to their job duties, it’s probably not protected speech. Furthermore, gripes and grievances are not generally of a public concern. But public employers should tread lightly when an employee raises questions of wrongdoing that might be of concern to the public.