Ex-police officer’s free-speech claim falls victim to Garcetti

Sunday, June 7, 2009


Another public employee’s free-speech claim has failed in the federal courts because of the U.S. Supreme Court decision holding that public employees have no free-speech protections for official, job-duty speech.


This case involved Kevin Oras, a former Jersey City police officer who in 2003 was assigned as the commanding officer of the police department’s Support Services Division. Oras became concerned that there was possible wrongdoing in the department’s bidding process for the acquisition of a Motorola police-radio system.


Oras’ job required him to sign vouchers for the purchase of various goods and services in the department. He questioned several people in the department about the new radio system. After investigating, Oras concluded that there was fraud, waste and abuse involved in the acquisition and reported his concerns to his superiors in internal memoranda in 2004. Later that year the department transferred him out of SSD. Oras continued to investigate the matter, however. In February 2005, the department reviewed Oras’ investigation of the communications system and later demoted him.


In November 2005, Oras retired from the department and filed a federal lawsuit contending that department officials retaliated against him for his investigation. But in April 2008, U.S. District Judge Susan D. Wigenton granted the defendants summary judgment, finding that Oras’s communications were official, job-duty speech within the meaning of the Supreme Court’s 2006 decision in Garcetti v. Ceballos.


In Garcetti, the high court wrote that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”


Wigenton reasoned that Oras’s retaliation claim failed under Garcetti because he made his critical statements in his capacity and pursuant to his duties as the commander of SSD.


Oras appealed to the 3rd U.S. Circuit Court of Appeals. On April 1, 2009, a three-judge panel of the 3rd Circuit unanimously affirmed the lower court in Oras v. City of Jersey City.


“The uncontroverted facts establish that Oras’ speech related to his investigation of the System and, thus, fell under his official duties,” Judge A. Wallace Tashima wrote for the panel. “Further, Oras admits that his investigation into the System was made in his capacity as a police officer.”


Tashima added that Oras’ “alleged protected speech includes only official memoranda, department incident reports, official discussions with fellow city employees, and witness interviews conducted at the Department during business hours.”


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