Takeaway: A public employer may impose restraints on the job-related speech of its employees that would be unconstitutional if imposed on the public.
A public utility did not violate the First Amendment when it prohibited an employee suspected of misrepresenting the reason for his absence from speaking to witnesses while the situation was investigated, the 9th U.S. Circuit Court of Appeals recently ruled.
The plaintiff worked for the Springfield Utility Board (SUB) in Springfield, Oregon, as a safety and environmental coordinator. SUB policy stated that employees were expected to keep unscheduled absences and tardiness to a minimum. SUB further required that, except in an emergency or when there is an illness, requests for time off must be submitted to a supervisor in advance. SUB policy also warned that dishonesty of any type would generally result in immediate dismissal.
In August 2019, the plaintiff took unscheduled time off. He emailed SUB’s HR manager, claiming that he would be out all day working on his kids’ school/sport registrations to ensure they were ready for school the next week. Four minutes later, he emailed a co-worker, writing, “I’m looking at your boat slip right now, headed to the Pig N Pancake.” The plaintiff later attempted to delete this email.
After discovering that the plaintiff may have misrepresented the reason for his absence from work, SUB hired two attorneys: one to investigate the plaintiff’s suspected dishonesty related to his work attendance and the other to provide legal advice during that investigation.
In September 2019, SUB placed the plaintiff on paid administrative leave pending an investigation into whether he had been truthful about his unscheduled time off. The notice from SUB’s finance director prohibited the plaintiff from communicating in any way with any SUB employees, unless the plaintiff received prior written permission for such communications. It stated that any contact with SUB employees regarding the matter would constitute gross insubordination and be subject to disciplinary action, including immediate termination.
SUB’s attorney interviewed the plaintiff twice. At the beginning of the first interview, she instructed the plaintiff that, to protect the integrity of the investigation, he was restricted from discussing it with other current or former SUB employees. After that interview, the plaintiff’s attorney emailed SUB’s attorney to request that SUB remove the restriction because it prevented the plaintiff from gathering information for his defense. SUB declined the request.
During the plaintiff’s second interview, the attorney repeated her instruction not to speak with potential witnesses about the investigation. She told him not to communicate with potential witnesses about what they had discussed regarding the investigation or about the information he provided.
The attorney clarified that the restriction applied only during the pendency of the investigation, did not apply to the plaintiff’s discussions with his wife and did not prevent the plaintiff’s attorney from contacting witnesses on the plaintiff’s behalf. The plaintiff would have an opportunity to contact potential witnesses after the investigation. The attorney indicated that the restriction was to prevent the plaintiff from potentially interfering with witness statements.
In December 2019, SUB issued a notice of proposed termination to the plaintiff, which described its findings and the policies SUB determined that the plaintiff had violated. The notice informed the plaintiff of the date and time of his pre-termination meeting, which the plaintiff did not attend. SUB tendered a notice of termination to the plaintiff the day after his pre-termination meeting was scheduled, informing him of his right to seek review of the decision in a post-termination hearing. The plaintiff did not seek review of his firing in a post-termination hearing.
During the pendency of SUB’s investigation into his conduct, the plaintiff filed a lawsuit claiming that SUB, certain SUB employees and SUB’s retained counsel violated his First Amendment right to free speech by instructing him not to speak with other SUB employees during the pendency of the investigation. The district court granted summary judgment in favor of the defendants, and the plaintiff appealed.
On appeal, the 9th Circuit applied the two-step balancing test of Pickering v. Board of Education, which determines whether the employee spoke as a citizen on a matter of public concern and whether the employer had adequate justification for treating the employee differently from the general public.
The 9th Circuit found that the speech restriction did not involve a matter of public concern and was justified by the goal of preserving the integrity of the investigation. It thus affirmed the dismissal of the plaintiff’s claims at summary judgment.
Roberts v. Springfield Utility Board, 9th Cir., No. 21-36052 (May 12, 2023).
Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.
