Principles for Public Safety Employment

Huppert incorrectly analyzed the scope of a peace officer’s “official duties” by automatically including reporting illegal conduct within the definition, and that the Huppert decision did not engage in a close evaluation of the specific facts of the case to determine an employee’s “official duties.” The Dahlia opinion provided some guidelines for interpreting an employee’s “official duties” in cases alleging First Amendment retaliation. First, “whether the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.” Second, the Court noted that the subject matter of the speech at issue is highly relevant. “When an employee prepares a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence, the employee’s preparation of that report is typically within his job duties.” On the other hand, “if a public employee raises within the department broad concerns about corruption or systemic abuse, it is unlikely that such complaints can reasonably be classified as being within the job duties of an average public employee,’ unless the “employee works for Internal Affairs or another such watchdog unit.” Third, the Court stated, “[W]e conclude that when a public employee speaks in direct contravention to his supervisor’s orders, that speech may often fall outside of the speaker’s professional duties. Indeed, the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a ‘practical’ matter, within the employee’s job duties notwithstanding any suggestions to the contrary in the employee’s formal job description.” The Ninth Circuit applied Dahlia’s newly announced framework for analyzing officer speech in Hagen v. City of Eugene . 233 In Hagen , the plaintiff was a police officer assigned to the K-9 team. He reported departmental safety concerns pertaining to misfires and erroneous explosive detonations of the SWAT team. From 2005 until April of 2008, Hagen directed his complaints to his sergeant supervisor and other departmental sergeants. Hagen identified specific incidents with regard to his safety concerns. In May of 2008, his supervisor informed Hagen that he would be transferred out of the K-9 unit because he was “the spokesman for the majority of the complaints.” Although this initial transfer was rescinded, Hagen began to receive negative performance reviews, and Hagen brought suit alleging retaliation for exercise of his First Amendment rights. The Ninth Circuit held Hagen’s speech concerned his employment and safety issues which officers were required to report as part of the tasks they were paid to perform. The Court further found that Hagen's concerns were directed only to his coworkers and to his superior officers. The Court concluded that Hagen’s speech was in line with a “routine report, pursuant to normal departmental procedures about a particular incident or occurrence,” which under the framework set forth in Dahlia , classified Hagen’s speech as being within his job duties as a public employee. The Court also referred to Dahlia in holding that, where a plaintiff’s supervisor

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