Government employees do not lose their rights to free speech upon entering the public workplace. But as the Massachusetts Appeals Court recently confirmed, the First Amendment does not protect a government employee for statements made pursuant to his or her official duties.
For several years, Jude Cristo worked as Human Resources Director/Payroll Director in the Worcester County Sheriff’s Department. In 2010, Cristo complained to the acting sheriff and deputy superintendent about certain activities of two of his co-workers – one who was spending work hours off-site campaigning for sheriff but still marking himself as present in the office, another who was assisting in the first co-worker’s campaign while at work but falsifying his time records. In November 2010, the defendant, Lewis Evangelidis (not the first co-worker), was elected as Sheriff of Worcester County. In January 2011, two days after his inauguration, Sheriff Evangelidis terminated the plaintiff. The plaintiff’s position, Evangelidis explained, was being abolished, and Cristo lacked the financial experience necessary to perform the duties of the new position of Director of Administration and Finance/CFO.
Claiming he was terminated because of his internal complaints about co-workers, Cristo brought an action against Evangelidis for retaliation in violation of his First Amendment rights under 42 U.S.C § 1983. Evangelidis moved for summary judgment on the grounds of qualified immunity. The Superior Court Judge denied the defendant’s motion, noting that the plaintiff’s speech was on a matter of “public concern” and, therefore, protected under the First Amendment. On appeal, the Appeals Court reversed.
Relying on the Supreme Court decision of Garcetti v. Ceballos, 547 U.S. 410 (2006), the Appeals Court reaffirmed that, in order to enjoy First Amendment protection, the speech of a government employee must not only be on a matter of “public concern,” but the employee must also be speaking “as a citizen.” While the question of whether Cristo’s speech was on a matter of “public concern” was “easily answered in the affirmative,” the Appeals Court concluded that his complaints about co-workers were made within the scope of his official duties, and not as a citizen. To reach this conclusion, the Appeals Court examined the context in which Cristo’s speech occurred. Five factors appeared determinative:
- First, Cristo learned about the matters he reported in the course of performing his official duties.
- Second, the matters about which he reported were directly related to those duties.
- Third, Cristo aired his complaints while on duty.
- Fourth, he did not share the contents of his complaints with anyone but his immediate supervisors.
- And, finally, Cristo made use of no forum outside the workplace to communicate his complaints.
Because the plaintiff’s claim was based exclusively on the First Amendment of the United States Constitution, and not on the free speech protections in Part 1, Article XVI of the Massachusetts Declaration of Rights, the Appeals Court declined to express an opinion on whether the workplace speech of a public employee is better protected under State law than it is under Federal law.
No doubt, future plaintiffs will test this theory.