Foraker v. Chaffinch

POLLAK, District Judge,

concurring:

I join the opinion and judgment of the court.

The opinion explains with precision that the free speech aspect (as distinct from the Petition Clause aspect) of this case dealing with the rights of public employees is squarely governed by the Supreme Court’s recent decision in Garcetti v. Ceballos, — U.S. -, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006): “The result required by Garcetti illustrates how that opinion narrowed the Court’s jurisprudence in the area of employee speech. Although under Garcetti an employee’s right to protest matters of public concern is not automatically forfeited by his choice of a workplace forum, that right is limited.” As the court further observes, under Garcetti “the ‘controlling factor’ in removing speech from the First Amendment [is] that the expressions were made pursuant to employment duties.” In *250the case at bar, it is not surprising that reports made by Corporal B. Kurt Price and Corporal Wayne Warren within the chain of command of the Delaware State Police were regarded as “made pursuant to employment duties.” Less clear is that the statements Price and Warren made to the State Auditor-statements ordered to be made to a high state official beyond the chain of state police command — were part of their employment duties. As the court notes, “giving statements to the State Auditor was not part of [appellants’] everyday duties.” But, given the statements Price and Warren had made to their senior officers, it was not clear error for the District Court to find that the directive to Price and Warren to aid the State Auditor’s inquiry broadened the scope of their employment duties. See Gustafson v. Jones, 290 F.3d 895, 906 (7th Cir.2002).

It may be expected that Garcetti will, to some extent, inhibit federal judicial micromanaging of public employment practices. It also may be expected that Garcetti will, to some extent, inhibit dissemination of information of arguable public interest about the operations of government agencies. How the balance will be struck may be expected to depend, to some extent, on the nuanced judgments of public employees and their superiors, and also of courts, on the scope of a public employee’s employment duties. Compare Garcetti 126 S.Ct. at 1961-62, with id. at 1963 (Stevens, J., dissenting), and id. at 1965, 1968 (Souter, J., dissenting).