Another police officer squelched by Garcetti

Monday, March 21, 2011

A federal district court has dismissed the First Amendment free-speech claim of a now-retired Pennsylvania State Police officer who said his complaints about alleged corruption and wrongdoing by other officers led to his demotion.

James Fulmer lost his case because of the U.S. Supreme Court’s decision in Garcetti v. Ceballos (2006), in which the Court ruled that public employees have no First Amendment rights when it comes to job-duty speech.

Fulmer, who had worked with the department since 1983, became a lieutenant in 2002 and crime-section commander in 2004. The crime-section commander investigates complaints from the public alleging misconduct by state police officers. In that capacity, Fuller identified problems with a subordinate, Sgt. George Emigh, and several commanding officers, including Harvey Cole, the captain of the Pennsylvania State police, and Frank Monaco, a major and Fuller’s commanding officer.

Fulmer investigated a sexual-harassment complaint against Emigh made by a magistrate judge, as well as other alleged improprieties. When Fuller recommended discipline against Emigh, Cole and Monaco supported Emigh. Fulmer complained about Cole and Monaco’s conduct during his investigations, criticizing the superior officers in an internal investigation conducted by the PSP.

For these criticisms, Cole removed Fulmer from his position as crime-section commander and gave him a poor performance review in March 2007. Fulmer retired in August 2008, again criticizing his superiors in his farewell address. He alleged in a federal lawsuit that they retaliated against him for speaking critically of them and Emigh.

On March 16, 2011, U.S. District Judge David Stewart Cercone granted the defendants summary judgment in Fulmer v. Commonwealth of Pennsylvania. “The developed record demonstrates that plaintiff [Fulmer] only spoke pursuant to his official duties,” Cercone wrote. “In all instances, his statements, comments and written observations were given and divulged within the formal process involving PSP internal affairs.”

Cercone said Fulmer’s speech “emanated from his duties as Crime Section Commander.” The judge buttressed this finding by ruling that PSP officers had a duty to report misconduct by other officers. He further concluded that Fulmer was not speaking as a public citizen but as an officer who was supposed to report misconduct.

Cercone’s decision relies heavily on the fact that the context of Fulmer’s complaints was an internal investigation. This interpretation leaves many public employees alleging First Amendment retaliation claims with little recourse.

Consider that the U.S. Supreme Court has ruled that employees who allege retaliation under Title VII of the Civil Rights Act of 1964 (the main federal anti-discrimination law) do have a claim even though their statements were made during internal investigations. In Crawford v. Metropolitan Government of Nashville (2008), the Court wrote that “nothing in [Title VII] requires a freakish rule protecting an employee who reports discrimination on her own initiative but not [an employee] who reports the same discrimination in the same words when her boss asks a question.”

But public employees who make statements or critical comments during internal investigations have little or no First Amendment protection against retaliation because of Garcetti.

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