Employee’s affidavit revealing confidential information was not protected speech

By Joy Waltemath

By Lorene D. Park, J.D.

Given that an employee worked closely with the police chief and maintained the department’s confidential records, the city’s interest as a public employer outweighed her First Amendment interest in providing an affidavit in an officer’s lawsuit, revealing confidential information. Affirming summary judgment against her Section 1983 retaliation claims, the Tenth Circuit noted the importance of loyalty and confidence in the law enforcement setting and found it significant that the employee was unaware of any actual wrongdoing by the city at the time she signed the affidavit, which revealed no city misconduct. Chief Judge Tymkovich also wrote a concurring opinion rejecting the employee’s assertion that her affidavit involved a “per se” public concern. To the contrary, even assuming a per se rule was recognized, the context and form of her affidavit excluded it from automatic protection (Helget v. City of Hays, Kansas, January 4, 2017, Tymkovich, T.).

Employee provides affidavit to fired officer. The employee worked for the city for ten years as an administrative secretary in the police department. She worked closely with the police chief and assistant chief, and maintained the department’s confidential records and files. She also acted as the department’s purchasing agent. In early December 2010, when she presented a list of officers for whom new ballistic vests would be purchased, the assistant chief had her remove the name of one officer. In January 2011, that officer was fired for an incident that had occurred in late December. Though he was accused of unprofessional conduct, he filed suit claiming he was wrongfully discharged for union activity. In the officer’s case, the employee agreed to provide an affidavit stating she was instructed to remove him from the ballistic vest order before the incident that the department held out as the reason for his termination.

Employee is fired. On May 1, 2012, before city officials learned of her affidavit, the police chief and assistant chief met with her to discuss her job performance. She was counseled for excessive personal internet use and her demeanor. On May 10, the chief learned about her affidavit and city officials exchanged emails discussing whether they could discipline or terminate her over it. The chief testified that he no longer trusted her with confidential information and that was why, on May 14, he recommended to the city manager that the employee be fired. The list of reasons for termination included: (1) lack of communication and interaction with command staff; (2) negative interactions with staff; (3) violations of the city’s personal-internet-use policy; and (4) disclosing confidential information in the officer’s litigation. She was fired two days later.

Summary judgment against First Amendment claims. The employee filed suit against the city, city manager, and police chief under Section 1983, alleging that they violated her First Amendment rights by retaliating against her for exercising her right to testify truthfully and for speaking out on a matter of public concern in providing the affidavit. Granting summary judgment for the defendants, the district court concluded that the city’s interest as a public employer outweighed the employee’s interest in her speech regarding a former employee’s litigation. The court also granted qualified immunity to the individual defendants.

City’s interest outweighed speech interest. The Tenth Circuit relied on the Garcetti/Pickering test, which considers whether: (1) the speech was pursuant to official duties; (2) was on a matter of public concern; (3) the government’s interests outweighed the plaintiff’s free speech interests; (4) the speech was a motivating factor in the termination; and (5) the defendant would have reached the same employment decision absent the protected conduct. Here, the parties agreed that the employee’s speech was not in response to her official duties and the district court found in the city’s favor on the second and third questions, which ended its analysis.

Affirming, the appeals court explained that it has long recognized that loyalty and confidence among employees is especially important in law enforcement. The employee worked closely with the chief and assistant chief, handling confidential information. Thus, protecting the department’s confidences was crucial to her job performance and any diminution in trust by the chief or assistant chief because she failed to maintain confidences could have affected her working relationship with her direct supervisors. The chief testified that after she disclosed confidential information in her affidavit, he no longer trusted her with confidential information. In the appellate court’s view, absent trust and loyalty, if the chief and assistant chief had been compelled to continue working with the employee, the strained relationship would have certainly interfered with the regular operation of the department. And if the chief refused to convey confidential information to her, it would impede her ability to perform her essential duties. Thus, the city’s interests as a public employer were strong here.

On the other hand, the employee’s interest was not as significant as claimed. While she claimed her interest was significant because her statements disclosed city misconduct, she admitted that, at the time she signed the affidavit, she did not know why department officials had removed the officer from the ballistic vest order. Also, a plain reading of her affidavit did not reveal any improprieties by the city; she simply attested that the officer was generally known to be active in the union and that she was told to remove his name from the ordering list in early December 2010. Moreover, the manner in which she aired her discourse about the officer’s termination minimized her interest. She did not raise the issue with superiors despite several opportunities.

Considering the circumstances as a whole, the appeals court agreed with the district court that the city’s strong interests as a public employer outweighed the employee’s interests in supplying the affidavit. She therefore could not satisfy the Garcetti/Pickering test.

Concurring opinion. Chief Judge Tymkovich wrote a separate opinion asserting that he would reject an additional argument raised by the employee: that her voluntary affidavit in the officer’s litigation was a per se matter of public concern because of its form and context. Circuit courts are unsettled on whether trial testimony is per se a matter of public concern. Regardless, the employee’s speech was in the form of an affidavit and was one step removed from the adversarial process that ensures reliability. Moreover, her speech was completely voluntary. She had not been subpoenaed and she was not faced with a Catch-22 situation. Thus, even if the court recognized a per se rule, the affidavit in this case was not of the form and context that would necessarily compel per se protection.

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