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Third Circuit Clarifies When Public Employees Speak as Private Citizens

First Amendment Violation Concept. Taped mouth with red "x."
By Joseph Fawbush, Esq. on October 15, 2019 1:26 PM

It is not always clear when public employees are acting in an official capacity and when they are acting as private citizens. The issue can be important when determining whether public employees have a legitimate cause of action to file a lawsuit for a violation of their constitutional right of free speech. If they are acting in an official capacity, they do not have a First Amendment right and employers can retaliate against them. If they are acting as private citizens when speaking or reporting alleged misconduct, however, government employers cannot retaliate against them.

The Third Circuit recently issued an opinion on this situation. The issue arose when the director of human resources for Luzerne County, Pennsylvania, reported allegations of wiretapping to the district attorney's office. The employee, Donna Davis-Javitz, alleged a meeting involving a labor dispute was recorded without her knowledge and consent, which is a crime in Pennsylvania. Javitz accused the county of retaliating against her after reporting, ultimately resulting in her termination without explanation.

She sued for, among other things, a violation of her First Amendment rights under 42 U.S.C. 1983. The district court dismissed the claim in summary judgment, holding that she was acting within the scope of her position and so her conduct was not protected. On October 10, the Third Circuit disagreed.

Public Employees Speaking as Citizens

The Supreme Court has tackled this issue before. Most recently in Lane v. Franks, when the Supreme Court held that the standard is “whether the speech at issue is itself ordinarily within the scope of an employee's duties."

The district court, in issuing the summary judgment, highlighted that Javitz would never have had the kind of access she did to the district attorney's office had she not been the director of human resources. Further, the County Ethics Code encouraged she report misconduct or ethical violations. Therefore, reporting the illegal conduct was within the scope of her employment, the district court judge reasoned.

The Third Circuit panel was not convinced. Whether Javitz had access she wouldn't have otherwise had is not relevant to whether she was speaking as a citizen or a public employee. Further, a general code of conduct is not enough to put that within the scope of duties she was regularly tasked with performing. Almost every business and government entity has an ethics code and requests employees report criminal and ethical violations.

Rather, the panel held that Javitz was speaking on a matter of public importance since she was reporting on an alleged felony. The Third Circuit has previously written that internal investigation into criminal actions of public employees is squarely within the public speech protected under the constitution.

It is a decision in line with precedent, and further clarifies when a government employee may have a cause of action against their employer for violating a constitutional right.

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