EMPLOYER ALERT
A Legal Update for Local Governments in Pennsylvania
May 10, 2009
COMPLAINTS OF POLICE OFFICER
NOT PROTECTED BY THE FIRST AMENDMENT
By: Christopher P. Gerber, Esquire
A police officer who voices complaints about a fellow officer’s alleged misconduct through the chain of command may not seek refuge in the First Amendment in an employment discrimination lawsuit.
On March 19, 2009, the United States District Court for the Eastern District of Pennsylvania in Jonathan Knight v. Borough of Chalfont, et al., 2009 WL 704140 (E.D.Pa.) made it clear that a police officer’s complaints to his superiors regarding a fellow officer's alleged misconduct does not constitute “citizen speech” that would warrant protection against retaliatory dismissal under the First Amendment.
In that case, the Borough Council terminated Knight from his position of patrol officer on grounds that he intentionally leaked confidential information about an undercover narcotics investigation to a drug dealer who was under surveillance by the Bensalem Township Special Drug Task Force. Pursuant to the police association’s collective bargaining agreement with the Borough, Knight appealed the termination. Following several days of hearings, the arbitrator upheld the decision of the Borough, finding that Knight had violated department policy by disclosing confidential information to the drug dealer.
Knight never filed an appeal of the arbitrator’s decision. However, he filed a federal Section 1983 civil rights lawsuit in the United States District Court for the Eastern District of Pennsylvania claiming that the Council’s true motive to fire him was in retaliation for his alleged complaints about fellow officers. Knight claimed, for example, that he reported to the police chief that a fellow officer interfered with Bensalem’s narcotics investigation and harassed patrons of the drug dealer’s local car wash (ironically, the same drug dealer to whom Knight leaked confidential information).
The Court's analysis of Knight's First Amendment retaliation claim was governed by the Supreme Court's decision in Garcetti v. Ceballos and related Third Circuit decisions. The Garcetti court held 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.” Following Garcetti, the Third Circuit has held that “[a] public employee's statement is protected activity when (1) in making it, the employee spoke as a citizen, (2) the statement involved a matter of public concern, and (3) the government employer did not have ‘an adequate justification for treating the employee differently from any other member of the general public’ as a result of the statement he made ....” Reilly v. City of Atlantic City, 532 F.3d 216, 228 (3d Cir.2008) (quoting Hill v. Borough of Kutztown, 455 F.3d 225, 241-42 (3d Cir.2006)).
Based upon the holding in Garcetti and its progeny, the Knight Court recognized that, before it must consider whether the officer’s complaints constitute a matter of public concern, the threshold question is whether the reports of alleged misconduct by a fellow police officer were made as a private citizen or pursuant to his official duties as a police officer. Since the Court held that Knight’s complaints through the chain of command fell within the scope of his duties, no further inquiry was warranted under the First Amendment.
The Knight case should provide municipalities, their officials and employees with an effective shield against retaliation lawsuits filed by police officers who claim that they were unfairly discharged in violation of the First Amendment. As a caveat, the Pennsylvania Whistleblower Law provides broader protections to police officers and other government employees who claim that they suffered unlawful termination on the basis of their complaints about government “waste and wrongdoing.” In short, municipal officials may not defend such claims on grounds that the employee’s complaint arose in the course of his employment.
Since disciplinary action against police officers and other government employees in Pennsylvania can result in costly and disruptive litigation, it is recommended that legal advice from experienced labor counsel be sought before the action is taken. The attorneys at Siana, Bellwoar & McAndrew, LLP are uniquely positioned to advise local governments in this area of the law in light of their experience as municipal solicitors as well as litigators who have an established record of successfully defending retaliation lawsuits.
SIANA, BELLWOAR & MCANDREW, LLP
941 Pottstown Pike, Suite 200
Chester Springs, PA 19425
(610) 321-5500
cpgerber@sianalaw.com
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