WELA ALERT: NINTH CIRCUIT

Attorney Did Not Engage in Protected First Amendment Activity; Jury Verdict Reversed

The plaintiff worked for many years as a civil litigation attorney for the Maricopa County Attorney’s Office (MCAO), and later (briefly) as a direct employee of Maricopa County, defending the county and related entities in civil lawsuits, before again returning to her previous employment at the MCAO.  During her time as a direct employee of the county she received a call at her office from a newspaper reporter inquiring about a case she was handling for the Maricopa County Sheriff’s Department.  One of her comments to the reporter about the case was later published in an article in that newspaper.  This article suggested that the county substantially increased settlement offers to avoid having key county officials testify.

County officials requested that Brandon not be assigned further cases in which the county was a party and which involved risk management. Brandon was later terminated from employment with the MCAO.  She filed a lawsuit against the county and certain county officials alleging violation of the First Amendment and state-law based tortious interference with her employment contract.  A jury found for Brandon on her claim that she had been fired in retaliation for her exercise of First Amendment rights in speaking to the newspaper reporter, and against certain county officials.  The County appealed, and the Ninth Circuit reversed.

In reference to the First Amendment claim, the Ninth Circuit reiterated three guiding principles to decide whether an employee’s conduct is protected by the First Amendment:

“First, particularly in a highly hierarchical employment setting such as law enforcement, whether or not the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.”

 

“Second, the subject matter of the communication is also of course highly relevant to the ultimate determination whether the speech is protected by the First Amendment . . . . When an employee prepares a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence, the employee’s preparation of that report is typically within his job duties . . . . By contrast, if a public employee raises within the department broad concerns about corruption or systemic abuse, it is unlikely that such complaints can reasonably be classified as being within the job duties of an average public employee, except when the employee’s regular job duties involve investigating such conduct.”

 

“Third, we conclude that when a public employee speaks in direct contravention to his supervisor’s orders, that speech may often fall outside of the speaker’s professional duties.  Indeed, the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a ‘practical’ matter, within the employee’s job duties notwithstanding any suggestions to the contrary in the employee’s formal job description.”

The Ninth Circuit concluded that the scope of Plaintiff’s legally defined duty to her client included the substance of a media interview even thought it was not within the chain of command.  The Court noted that this would be a different case if plaintiff had alleged misconduct by the County, but the Court concluded that she did not.  “Taken together, the only possible outcome of the ‘practical inquiry’ required by Garcetti was that Brandon’s speech to the Arizona Republic fell under the broad set of official duties she owed Maricopa County as its attorney, and so was not constitutionally protected citizen speech.”

Brandon v. Maricopa County, et al.  849 F.3d 837 (9th Cir. 2/23/2017) (Bea, Ikuta, Rewstani (United States Court of International Trade)).