Public Officials May Lack Immunity in Free Speech Cases

Public Sector.BlogRebecca Ricciuti was a patrol officer who became concerned about excessive overtime payments to employees working for the town of Madison, Connecticut. She let members of the public know about what she viewed as excessive overtime payments by developing and then disclosing what the court called a “matrix,” showing how police supervisors were profiting from overtime that she believed was unnecessary to the safe operation of the department. She was discharged as a result. She filed suit, and the court found that she was acting as a private citizen exercising her First Amendment rights, because her speech was not made pursuant to her official duties as a patrol officer, even though she learned about the overtime payments as a result of her job. Ricciuti v. Gyzenis (2d. Cir. 2016)

The next issue to be decided was whether the police officials who terminated her had immunity because they were following a reasonable interpretation of the law. The court did not believe so. As the decision stated, “[N]o reasonable officer faced with Ricciuti’s version of the facts could have concluded that Ricciuti’s speech was made ‘pursuant to’ her official duties as a patrol officer under the meaning of Garcetti merely because her speech owes its existence to her job.” The court also found that at the time of her termination, “[T]he law on this issue was clearly established,” despite the fact that there were not many cases interpreting Garcetti.

Garcetti v. Ceballos (2006) was the Supreme Court case that held that a district attorney who testified for the defense could not argue that his speech was protected under the First Amendment, because the speech he engaged in was part and parcel of his position as a district attorney. As such, he was sworn to represent his client, the County of Los Angeles.

This decision helps to set the boundaries around when an employee’s speech is and is not protected, as well as the standards of knowledge for public officials, and when they may be held liable.