Tenth Circuit: County Employee’s Testimony Not Protected by First Amendment

The First Amendment protects a government employee’s speech made as a citizen on a matter of public concern if the employee’s right to speak outweighs the government’s interest as an employer in an efficient workplace. The Tenth Circuit Court of Appeals recently analyzed this concept in the case of Butler v. Board of County Commissioners for San Miguel County (10th Cir. 2019).

Jerud Butler was a supervisor for the San Miguel County, Colorado, Road and Bridge Department. Facts of the case include the following:

  • On September 1, 2016, the County promoted Butler to district supervisor. On September 7, Butler testified in a child-custody hearing in Montrose County involving his sister-in-law and her ex-husband, who was also an employee of the San Miguel County Road and Bridge Department.
  • Butler was asked to testify as a character witness on behalf of his sister-in-law. He would have been required to testify under subpoena had he not agreed to testify.
  • At the hearing, Butler was asked about the hours of operation for the San Miguel County Road and Bridge Department. He responded truthfully to the question based upon his own personal knowledge.
  • At the hearing, Butler neither stated nor implied that he was testifying on behalf of the County.
  • Almost two weeks later, San Miguel County’s Road and Bridge Director and the County’s Human Resources Director conducted an investigation into Butler’s testimony at the hearing. Following the investigation, Horner and Howard gave Butler a written reprimand and demotion.

The sole question became whether a public employee testifying truthfully at a hearing was a matter of public concern regardless of the reason for the hearing, an approach that the Third and Fifth Circuits follow. The Tenth Circuit looked at case law, including Garcetti v. Ceballos (U.S. 2006), a U.S. Supreme Court case. Garcetti declined to treat public employees differently from other citizens, an approach the Tenth Circuit decided to follow. As a result, it found that when Butler testified as a character witness for his sister-in-law in a child custody proceeding, he testified in a purely personal dispute that, while having great significance for the parties involved, was not of interest to the community. Therefore, the speech was not a matter of public concern, so free-speech protections did not apply.

The extent to which a public-sector employer should rely on this case is limited. Many cases do involve matters of public concern, and a child-custody case with different facts could qualify. If this is an issue of concern for you, please do call. We can help.