In Brandon v. Maricopa County, published February 23, 2017, the 9th Circuit Court of Appeals reversed a judgment, based on jury verdict, in favor of an attorney formerly employed by the defendant county. While the attorney was a county employee, a newspaper reporter called her on her office line and asked her to comment about the county's settlement of a lawsuit in which she was the attorney of record. The reporter suggested the county had made an overly generous settlement offer to prevent the depositions of county officials. The attorney responded, "I don't know why they did what they did, and I'm sure they had their reasons." Her employment was later terminated. The attorney sued the county and county officials for employment retaliation in violation of her 1st Amendment rights. A jury found in favor of the attorney, and awarded her nominal damages. The defendants appealed, arguing that as a matter of law the attorney was acting pursuant to her official duties when she spoke to the reporter, and her speech was therefore not constitutionally protected.
The 9th Circuit agreed with the defendants. Speech made by public employees in their official capacity is not insulated from employer discipline by the 1st Amendment but speech made in their private capacity as a citizen is. The scope and content of the employee's job responsibilities is a question of fact. But a practical inquiry is required. Here, under that practical inquiry, the attorney had a broad fiduciary duty to her client, the county, that included speaking to the press as a lawyer representing the county. She did not accuse the county of any corruption or serious misconduct. And she did not violate any official policy by speaking to the press on the matter. The only possible outcome of this practical inquiry was that the attorney's speech fell under the broad set of official duties she owed the county as its attorney, and so was not constitutionally protected citizen speech.
Comments