Sunday, January 19, 2014
The United States Supreme Court has granted certiorari in Lane v. Franks, a case involving a public employee's First Amendment rights in the context of retaliation and raising questions about the interpretation of Garcetti v. Ceballos.
The Eleventh Circuit affirmed a summary judgment in favor of the employer, Central Alabama Community College in a brief opinion on its summary calendar, without oral argument, and designated the opinion "do not publish." But the Eleventh Circuit opinion nevertheless provides some very compelling facts.
Edward Lane was a probationary employee of the community college's program for at-risk youth, CITY. When he assumed his duties, he found that then-state representative Suzanne Schmitz was listed on CITY's payroll but was not reporting for work and had not otherwise performed tangible work for the program. He was warned by the college officials not to terminate the state representative, but he did so anyway. She filed a lawsuit challenging her termination, but more importantly, she was also being investigated by the FBI for fraud. Lane testified before a federal grand jury and -- pursuant to a subpoena -- testified at Schmitz's subsequent federal criminal trials in 2008 and 2009 for mail fraud and fraud involving a program receiving federal funds.
As an aside, a different Eleventh Circuit panel in 2011 reversed Schmitz's convictions for fraud regarding receiving federal funds because of prosecutorial misconduct, but affirmed her convictions for mail fraud. She is no longer in prison.
Meanwhile, Edward Lane, like all 29 probationary employees of CITY, was laid off in 2009 due to "budget cuts." However, Franks, as college president, then rescinded all the layoffs except two, including Lane.
Lane sued alleging a First Amendment violation. The district judge determined that Lane's speech was made pursuant to his official duties as CITY's Director, not as a citizen on a matter of public concern. The Eleventh Circuit had no trouble stating it reached the same conclusion.
Although the Eleventh Circuit was seemingly not troubled, interpretations of Garcetti have caused some consternation in the circuits. Recall the arguable circuit split between Bowie v. Maddox, from the DC Circuit (foreclosing the employee's claim) and Jackler v. Byrne, in the Second Circuit, allowing the employee's claim. The Court denied certiorari to these cases two years ago.
Stephen Bergstein, over at "Wait A Second!" has an excellent discussion of the legal landscape, including other cases that stress the employee's right to testify at trial, and the importance of the Court's grant of certiorari.
Certainly Lane v. Franks raises vexing issues of the First Amendment rights of employees after Garcetti and possible First Amendment protections for "whistleblowers." It is difficult to believe that misconduct by a state representative is not a "matter of public concern" although Lane obviously came by his knowledge in the course of his employment.