Principles for Public Safety Employment

ignores plaintiff’s initial report, subsequent repeated reports to the same supervisor does not convert those reports into protected speech. Importantly, the Court took notice that the City's Human Resource and Risk Services Administrative Policies and Procedures Manual required police officers to report safety concerns. The Court remarked that the City Manual provided “[e]mployees are…responsible for reporting accidents, faulty equipment, unsafe practices of fellow employees , and/or unsafe conditions of work areas to their supervisors.” Additionally, the Court pointed to a Department General Order that required employees to “[r]eport any safety hazard or malfunctioning equipment to the [their] supervisor immediately so that corrective action can be taken.” The U.S. Supreme Court, in Lane v. Franks , 234 held that truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. The Court did not address whether testimony in the course of ordinary duties, such as testimony frequently given by public safety officers, is speech as a citizen; in fact, three justices wrote separately to underscore the fact that the majority opinion did not reach this question. Further, the other elements of First Amendment retaliation are still required in the case of testimony by a public employee outside the scope of his ordinary job duties. The U.S. Supreme Court continued the trend to limit the “official duties” test in the 2014 case Lane v. Franks. 235 In that case, a program director at a community college who, unlike a peace officer, did not have testimony as one of his ordinary job responsibilities discovered that an elected official was on the payroll of his program but did not actually report to work. The program director terminated the elected official’s employment and testified against her in a criminal grand jury and two subsequent criminal trials. The program director was laid off and sued for a violation of the First Amendment. The Supreme Court held that a public employee may not be fired or otherwise be made to suffer adverse employment consequences for providing truthful testimony even where the testimony concerns information acquired by virtue of his public employment. Three Justices filed a concurring opinion specifically stating 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. Although First Amendment issues most often arise in the context of retaliation claims related to employee discipline, agencies should also be careful not to impose rules or orders that would constitute unconstitutional “prior restraints.” In Moonin v. Tice , 236 the department ordered officers in the K9 drug interdiction unit not to have any direct communications about the K9 program with anyone outside the department. An officer sued, alleging this prohibition violated the First Amendment. The department argued that the order was justified because 1) it protected sensitive law enforcement information relating to drug interdiction; 2) the Department had a right to control official communications about the K9 program; and 3) it would allow the department to operate effectively without disruption by non-law enforcement groups. The Ninth Circuit held that “even crediting the departmental interests as enunciated, they cannot, individually or taken together, support the sweeping policy[.]” The Ninth Circuit explained that this expansive ban on all outside communications did “not bear a close and rational relationship to the department’s legitimate interests,” since the policy made “no distinction between speech

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