In 2006, Edward Lane took a probationary position as a program director for at-risk youth at Central Alabama Community College. Upon auditing the program's finances, Lane found that an Alabama State Representative, Suzanne Schmitz, was listed on the payroll, but had not been reporting to work. Lane shared his findings with the College's president and its attorney. Lane was subsequently warned that terminating Schmitz could have negative repercussions for the College and for Lane personally. Nevertheless, when Schmitz continued to refuse to report to work, Lane terminated her employment. Schmitz allegedly commented to another program employee that she would "get back" at Lane for terminating her and that, if he requested money from the State legislature, she would respond "you're fired."
The FBI subsequently investigated Schmitz's employment with the College. In November, 2006, Lane testified before a federal grand jury about his reasons for terminating Schmitz. The grand jury indicted Schmitz. Lane testified at two subsequent criminal trials involving Schmitz. During his trial testimony, Lane described the events that led to Schmitz's termination.
After Lane testified at the two trials, Steve Franks, President of the College, laid off 29 probationary employees, including Lane. All but two of the lay-offs were rescinded, but Lane's was not. Later that year, the College eliminated the at-risk youth program and all remaining employees were terminated. Lane sued Franks for violation of the First Amendment on the grounds that Franks fired him because of Lane's testimony against Schmitz.
The District Court granted Franks's motion for summary judgment finding that Franks was entitled to qualified immunity because he could not have known that the First Amendment protected Lane's court testimony. The District Court considered Lane's testimony to be part of his official duties because he learned the information he testified about while working as the College. The Eleventh Circuit similarly held that Lane's testimony was pursuant to his official duties and thus not entitled to First Amendment protection.
The Supreme Court granted review to decide whether a public employee may be fired (or otherwise suffer adverse employment consequences) for providing truthful testimony outside the course of the employee's ordinary job responsibilities.
The Court stated that there is considerable value in encouraging speech by public employees as they are often in the best position to know the problems within a government agency. However, the Court also recognized the agency's countervailing interest to have significant control over its employee's words and actions. Finally, the Court also recognized that when a public employee makes statements pursuant to the employee's official duties, the employee is not speaking as a citizen for First Amendment purposes.
In this case, it was undisputed that Lane's ordinary job responsibilities did not include testifying in court proceedings. Therefore, the Supreme Court was faced with the question of whether the First Amendment protects truthful sworn testimony, compelled by subpoena, that is outside the scope of the employee's ordinary job responsibilities. The Court held that it does.
The Court stated that the mere fact that a citizen's speech concerns information acquired by virtue of his public employment does not automatically transform that speech into speech as an employee which is not protected by the First Amendment. The Court further noted that the critical question is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties. In addition, sworn testimony in a judicial proceeding "is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the court and society at large, to tell the truth." The Court concluded: "That independent obligation renders sworn testimony speech as a citizen and sets it apart from speech made purely in the capacity of an employee." Thus, speech by a public employee rendered as sworn testimony does not lose its First Amendment protection just because it relates to the employee's discharge of "official duties."
A concurring opinion by three Justices stated that the decision did not address the "quite different question" of whether a public employee speaks "as a citizen" when he testifies in the course of his ordinary job responsibilities, such as police officers, crime scene technicians and laboratory analysts. In addition, the concurring opinion stated other employees may be called to testify as the designated representative of their employer. According to the Court, these issues are left to be decided.
The Court also had little trouble finding that Lane's testimony regarding corruption in a public program was of significant public concern and thus deserving of First Amendment protection. The Court similarly had little trouble finding that Lane's testimony did not impair the agency's ability to run efficiently and effectively as there was no evidence that Lane's testimony was false or erroneous or that he unnecessarily disclosed any sensitive, confidential, or privileged information.
Finally, the Court addressed whether, even though Lane's speech was protected, Franks nevertheless was protected by the doctrine of qualified immunity from having to pay damages. Qualified immunity protects government officials from individual liability if the constitutional right they violated was not "clearly established" at the time. The Court found that, because the state of the law in the Eleventh Circuit was not clear at the time Franks made the decision to fire Lane, he was entitled to qualified immunity. The Court held, however, that Lane's separate non-damages claim against another administrator could proceed, and remanded the issue for further proceedings.
The Court's decision does not represent a drastic change for California public agencies. The Ninth Circuit, which covers California, had already held that a public employee's sworn testimony concerning the employee's job duties can be protected, as can deposition testimony.
Agencies should also take note of the concurring opinion which left open the question of whether the "official duties" rule would continue to apply to a public employee who testifies as part of his or her ordinary job responsibilities, such as a police officer.
The decision also appears to continue a trend to limit the "official duties" test articulated in the Surpreme Court's Garcetti v. Ceballos decision in 2006. In our April 2013 Client Update we reported on the Ellins v. City of Sierra Madre decision in which the Ninth Circuit narrowed the scope of the "official duties" test by clarifying that an employee acting in the capacity of a union member is usually speaking as a private citizen, and is thus protected by the First Amendment. Agencies should take special care to confer with legal counsel before taking adverse action against an employee due to the employee's speech.
Lane v. Franks (2014) 134 S.Ct. 2369.