A Cincinnati district chief who twice reported misconduct by other chief officers and thereafter was passed over for promotion, is appealing a ruling by a US District Court in favor of the city.
District Chief Raffel Prophett filed suit last year accusing City Manager Harry Black and the city of abuse of power, retaliation, violation of the 1st Amendment, and due process violations (both procedural and substantive). Chief Prophett, who served as a Lt. Colonel and Deputy Director of Plans and Civilian/Military Affairs for the U.S. Third Army, “deployed overseas in support of the Iraq and Afghanistan wars.” He claims City Manager Black labeled him as a trouble-maker and blocked his promotion to Assistant Chief in retaliation for his reporting misconduct.
Last month, United States District Judge Timothy S. Black rejected Chief Prophett’s claims, ruling in favor of the city and City Manager Black on all counts. While Judge Black’s decision on each of the counts is interesting, it would be impossible to discuss them all in a single post. We will focus on the judge’s analysis of the 1st Amendment issues. Quoting from the decision:
- Citizens entering public service must necessarily accept certain limitations on their freedom.
- However, the state may not abuse its position as an employer to stifle the First Amendment rights its employees would otherwise enjoy as citizens to comment on matters of public interest.
- The public has a strong interest in hearing from government employees, who are often in the best position to know what ails the agencies for which they.
- In Garcetti, the Supreme Court determined that the First Amendment protects a public employee’s right to speak “as citizens about matters of public concern” under certain circumstances: “[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.”
- In light of Garcetti and its progeny, the Sixth Circuit has held that a public employee asserting a claim of retaliation in violation of the First Amendment must show: (1) that her speech was made as a private citizen, rather than pursuant to her official duties; (2) that her speech involved a matter of public concern; and (3) that her interest as a citizen in speaking on the matter outweighed the state’s interest, as an employer, in ‘promoting the efficiency of the public services it performs through its employees.’
- Defendants argue Mr. Prophett was not speaking as a private citizen on either of the matters alleged in the Complaint.
- Defendants claim Mr. Prophett “was a public employee of the City of Cincinnati, and the speech at issue was made pursuant to his official duties.”
- When public employees make statements “pursuant to their official duties,” the employees are not speaking as private citizens for First Amendment purposes.
- The “critical question” under Garcetti is “whether the speech at issue is itself ordinarily within the scope of an employees’ duties, not whether it merely concerns those duties.”
- The Court finds that the facts alleged in the Complaint, taken as true, are sufficient to justify an inference that Mr. Prophett’s February 2015 communication to Mr. Black was made as a citizen concerned about the integrity of the Fire Department and the City.
- The Court reaches a different conclusion in regards to the second category of protected speech, Mr. Prophett’s July 2015 statement to his direct supervisor that Assistant Chief Kuhn was reported to have been on duty under the influence of alcohol.
- Having determined that the Complaint adequately alleges that Mr. Prophett’s February 2015 communication to Mr. Black was made as a citizen, the Court turns to the next step in the Garcetti inquiry, i.e., whether the statement was made on a matter of public concern.
- Speech touching on public concern includes speech on “any matter of political, social, or other concern to the community.”
- Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.
- Even construing the facts of the Complaint in favor of Mr. Prophett, the Court cannot find that his February 2015 communication to Mr. Black involved a matter of public concern. The Complaint merely alleges that Chief Jones accused Assistant Chief Demasi of unidentified “wrongdoing” and that Chief Braun was required—but failed—to investigate those allegations.
- The Complaint has simply failed to set forth facts from which the Court could conclude it was plausible that Mr. Prophett’s February 2015 communication to Mr. Black was made as a citizen on a matter of public concern.
I would imagine that Judge Black’s reasoning on both prongs of the Pickering/Garcetti test (private citizen and matter of public concern) will be a contested area on appeal.
Here is a copy of the decision:Raffel Prophett v Cincinnati