In Kaye v. Board of Trustees of the San Diego County Public Law Library, (— Cal.Rptr.3d —, Cal.App. 4 Dist., November 10, 2009), a California Court of Appeal considered whether the discharge of a public employee who sent a scathing e-mail criticizing his superiors violated the employee’s free speech rights. The Court of Appeal held the employee’s e-mail was not protected speech and employer’s discharge of the employee did not violate his rights under California’s free speech clause.
Facts
The San Diego County Public Law Library (“Library”) employed Michael Kaye (“Kaye”) as a reference librarian. The Administrative Office of the Courts (“AOC”) contacted the Library to ask if it could provide someone to attend an AOC conference and participate in a panel for a program aimed at helping self-represented litigants with appeals. The AOC asked Kaye, who taught a course for self-represented litigants involved in the appellate process, to be a member of the panel. Because Kaye’s supervisor, Joan Allen-Hart (“Hart”) was absent from work, Kaye sought and received permission from the Library’s director, Robert Riger (“Riger”), to participate in the program. Hart later questioned why the invitation had not been routed through her or Riger first and asked the Library’s financial officer to inquire into the matter. Kaye became upset by the inquiry and rescinded his acceptance.
Kaye sent an e-mail to Hart, which he copied to his coworkers, that criticized the governance of the reference department and Hart’s handling of schedule changes. Kaye described Hart’s implementation of the changes as a “hypocritical,” “hand-down-the-law approach” that “smacks of autocracy.” Kaye also criticized his assignment to a committee and stated the assignment “represents an administrative determination to deliberately squander law library funds and human resources on a relatively useless outside extravagance.” He claimed the inquiry about the AOC invitation was an attempt to discipline or harass him so that he would retire early. Kaye accused Hart and Riger of creating a hostile and insulting work environment. He also speculated Hart and Riger instituted the inquiry out of spite and jealousy. Kaye questioned Riger’s eligibility to have expenses for the conference reimbursed by AOC and “opined that, if Riger attempted to submit an expense report application to the AOC, the application would be a false claim under the California False Claims Act.”
The next day, Library placed Kaye on administrative leave. The Library later terminated Kaye for “serious misconduct.” Kaye submitted a grievance to Library’s Board of Trustees (“Board”), who later voted to discharge Kaye effective the day of its vote. Kaye filed a lawsuit against the Library, the Board, Riger, and Hart (collectively, “Library”). The trial granted summary judgment in favor of the Library.
Decision
The Court of Appeal affirmed the judgment of the trial court and rejected Kaye’s contention that the e-mail to Hart was protected speech. The United States Supreme Court recently addressed the free speech rights of a public employee. In Garcetti v. Ceballos (2006) 547 U.S. 410, a deputy district attorney sent a memo to his employer that questioned the veracity of an affidavit used to support a search warrant. The attorney claimed his employer retaliated against him for writing the memo and violated his right to free speech because the memo was protected under the First Amendment to the United States Constitution. The Supreme Court found the memo was not protected speech because the attorney wrote the memo as part of his employment duties.
The Supreme Court noted that the dilemma in a free speech case involving a public employee is “balancing the interests of a public employee as a citizen to comment on matters of public concern against the interests of a public employer ‘in promoting the efficiency of the public services it performs through its employees.’” A court must make two inquiries when analyzing a public employee’s speech, the first of which is “whether the employee spoke as a citizen on a matter of public concern.” If the employee did not speak on a matter of public concern, “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” If the employee did speak on a matter of public concern, a court must determine “whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public.” If a public employee makes statements as part of fulfilling his or her official duties, the employee is not speaking as a citizen for purposes of the First Amendment, and the First Amendment does not insulate the employee’s communications from employer discipline.
Kaye conceded that his cause of action for discharge in violation of his free speech rights fails if the holding of Garcetti applies. Kaye argued, however, Garcetti does not apply to cases alleging violations of California’s free speech clause. The Court of Appeal rejected Kaye’s argument.
California Constitution, article I, section 2, subdivision (a) provides, “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” Although the free speech clause of the California Constitution is “worded more expansively and has been interpreted as being more protective than the First Amendment in some respects,” the Court of Appeal found that this does not mean California free speech clause “is broader in all applications.” When a California court interprets a provision of the California Constitution that is similar to a provision of the United States Constitution, the California court will not depart from a construction given by the United States Supreme Court unless the court is given cogent reasons to depart from that construction.
Reasons for a California court to depart from United States Supreme Court precedent include (1) where there is something in the language or history of the California provision which suggests that the issue should be resolved differently than under the federal Constitution; (2) where the United States Supreme Court decision limits rights that were established by earlier California precedent; (3) where “there are vigorous ‘dissenting opinions [or] incisive academic criticism of those decisions’”; or (4) where “following the federal rule would ‘overturn established California doctrine affording greater rights.’” The Court of Appeal found that none of these enumerated reasons to support a departure from Garcetti. Because there is no reason for a departure from Garcetti, the Court of Appeal held that the Garcetti holding applies in this case. Kaye made his statement as part of his employment duties. Kaye could not establish that his e-mail was protected speech and, therefore, could not establish a claim under the California’s free speech clause.
The Court of Appeal also held that Kaye could not establish that his discharge violated the whistleblower protections of the California False Claims Act (“CFCA”). As a general rule, “to constitute protected activity under the CFCA, the employee’s conduct must be in furtherance of a false claims action. Here, Kaye’s remarks in his e-mail about Riger’s conference attendance were not in furtherance of a false claims action. The purpose of Kaye’s e-mail was to complain about the Library’s inquiry into his invitation to speak at the AOC conference, not to report or initiate an investigation into a false claim. Furthermore, Kaye’s remarks were merely insinuations based on speculation and inaccurate assumptions and “did not reflect reasonably based suspicions of an imminent false claim.”
What This Means To You
As a result of this case, public employers still retain the ability to discipline employees for inappropriate use of internal e-mail and other IT resources. However, because this area is complex and varies with the facts of each situation, you should consult with counsel before starting discipline in these "expression" cases.
Questions
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Bruce A. Scheidt, Laura Izon Powell, David W. Tyra, Diana D. Halpenny or Mona G. Ebrahimi | 916.321.4500