School clerk not protected in reporting improper payments
A former school district payroll employee had no free-speech right to report what she deemed financial malfeasance, a federal appeals court has ruled. The decision shows the power of the Supreme Court’s decision in Garcetti v. Ceballos (2006) for public employers, who often can convince courts that employees have engaged in unprotected job-duty speech rather than protected speech as private citizens.
Rita A. Ross worked as a payroll clerk-typist for the Katonah-Lewisboro Union Free School District in South Salem, N.Y. Between 2003 and 2006, she informed District Superintendent Robert Lichtenfeld of several improprieties, including the forging of a supervisor’s signature by a courier to obtain additional pay, the giving of bonuses without school board approval and other payments. In 2005 she also complained that Lichtenfield had spent $500 of district funds to buy chocolates for a gift.
In October 2005, the school district hired Renee Gargano, a deputy superintendent from a nearby school district, as a consultant to help resolve personnel problems. Ross met with Gargano and reported to her about improper payments. Gargano remembered that Ross used to work in her school district. Investigation revealed that Ross had failed to disclose this previous employment (and subsequent termination) on her job application.
Ross was suspended with pay in May 2006. In July 2006 she wrote a letter on her personal stationary to individual school board members outlining her concerns about improper payments. She wrote: “Although I am an employee of the School District, I am writing to you … President of the Board of Education, on a personal note out of complete frustration with the District’s administration.”
After the board received the letter, it met in executive session with Lichtenfeld, who recommended that Ross be fired. In December 2006 the board voted unanimously to do so.
Ross sued in federal court, contending that she was terminated in retaliation for her protected speech about improper financial payments. In 2010, a federal district court allowed much of Ross’ claims to move forward, reasoning that there was evidence that she had engaged in protected private-citizen speech rather than unprotected public-employee speech.
The school defendants appealed, arguing that under Garcetti Ross spoke only in connection with her official duties and thus enjoyed no free-speech protection. Under Garcetti, public employees have no free-speech rights when they engage in official employee job-duty speech, rather than as private citizens.
On Sept. 10, a three-judge panel of the 2nd U.S Circuit Court of Appeals determined in Ross v. Breslin that Garcetti foreclosed all of Ross’ free-speech claims.
The panel noted that Ross’ claims covered three areas: (1) her reports to Lichtenfeld, (2) her statements to Gargano, and (3) her letter to the school board. The district court had determined that her statements to Lichtenfeld and her letter to the board were protected private-citizen speech because she had made them outside the chain of command and spoke on important public matters. But the 2nd Circuit panel reversed that ruling because of Garcetti.
“Her reports to Lichtenfeld were part and parcel of her official responsibilities,” the panel wrote, noting that in a deposition Ross testified that reporting financial irregularities was part of her job.
Addressing her chain-of-command argument, the appeals court panel noted that just because an employee takes a complaint outside the chain of command, employee speech is not transformed into citizen speech.
“An employee’s characterization of her own speech is not dispositive,” the panel added.
The panel concluded: “In this case, the speech that prompted Ross’s retaliation claim owed its existence to her job duties and was made in furtherance of those duties.”
It is one of many similar conclusions by courts since the 2006 Garcetti decision.