In Roberts v. Springfield Utility Board, published May 12, 2023, the 9th Circuit Court of Appeals affirmed summary judgment in favor of the defendant agency. The agency investigated the plaintiff, an employee, for allegedly misrepresenting his reason for taking time off. It put the plaintiff on paid administrative leave during the investigation. The notice of administrative leave stated plaintiff was prohibited from communicating with other employees during the investigation (without prior written permission) and that any contact with other employees regarding the matter would be subject to disciplinary action. When the agency's attorney conducting the investigation interviewed the plaintiff, the attorney instructed the plaintiff that, to protect the integrity of the investigation, he was restricted from discussing it with other employees while it was ongoing. During the investigation, the plaintiff sued the agency under 42 U.S.C. section 1983, alleging that the instructions violated his 1st Amendment right to free speech. The district court granted the agency's motion for summary judgment. The district court assumed the instructions limited the plaintiff's right to speak on matters of public concern, but concluded that the restriction was permissible because it served a legitimate interest in preventing interference with the investigation.
The appellate court ruled that the restrictions were constitutionally permissible. It applied the two-step balancing test derived from Pickering v. Board of Education (1968) and its progeny. The first step is determining whether the employee spoke as a citizen on a matter of public concern. Where, as here, a public employer instructs an employee not to communicate with potential witnesses regarding a workplace misconduct investigation during the pendency of that investigation, the impacted speech generally is not on a matter of public concern under Pickering. The communication restriction here affected the plaintiff's personal ability to discuss only the investigation into his own alleged violation of agency personnel policies governing time off and employee dishonesty. Further, his attorney was not restricted form contacting any agency employees about the plaintiff's alleged actions during the investigation. Any speech impacted concerned a quintessential individual personnel dispute that is of no relevance to the public's evaluation of the agency's performance. The instructions did not affect the plaintiff's right to speak with other employees about the agency's performance--only about the ongoing investigation into his own alleged misconduct. Because the instructions did not restrict speech on a matter of public concern, the plaintiff did not state a 1st Amendment cause of action.
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