Saturday, February 23, 2013

When is Speech Not Protected by the First Amendment?


A recent decision of the US Court of Appeals for the 7th Circuit explains the circumstances under which a public employee who speaks out about a matter of public concern can be protected by the First Amendment.

Julie McArdle was the principal of a middle school in Peoria, Illinois.  Her predecessor was promoted to Academic Officer and was McArdle’s supervisor. 

Shortly after assuming her position, McArdle began to discover irregularities in how Davis had handled financial matters.  She questioned Davis about her use of school funds and a school credit card for personal expenses, but Davis's responses were evasive. Soon thereafter, Davis began to discredit McArdle in her reports to the superintendent and to other parents, and in her dealings with the Parent-Teacher Organization.  Davis then alleged that parents were complaining about McArdle’s performance, and put McArdle on a “performance improvement period.” 

McArdle then filed a police report about Davis’s theft of school funds. She also wrote to the school superintendent about Davis’s improper actions.

Thereafter, the school board advised McArdle that her contract would not be renewed at the end of the school year.  

When she was fired, McArdle brought suit, alleging that she was fired in retaliation for having exercised her First Amendment right to speak out about a matter of public concern.  

The flaw in McArdle’s claim was that in order for a public employee’s speech to be constitutionally protected, she must have spoken in her capacity as a private citizen, and not pursuant to her official duties. McArdle argued that according to her position description, she did not have responsibility for reviewing or evaluating the use of the Student Activities Fund.  She claimed, therefore, that she was acting as a private citizen when she discovered and reported Davis’ alleged criminal behavior in regards to the Student Activities Fund.

In granting summary judgment for Davis, the District Court did not accept McArdle’s theory:

it does appear that McArdle’s formal and practical responsibilities as principal included oversight of the Student Activities Fund and would include reporting any discovered misconduct associated with the it.  Thus, no reasonable jury could conclude that McArdle was acting as a private citizen when she discovered Davis’ alleged criminal activity and reported this activity to District supervisors.

McArdle v. Peoria School District, Central District of Illinois, June 7, 2011.   

On appeal, the US Court of Appeals for the Seventh Circuit affirmed the decision:

“[W]hen 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.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). The Supreme Court has noted that protection of a government employee’s exposure of misconduct involving his workplace is more properly provided by whistleblower protection laws and labor codes. Id. at 425.

McArdle v. Peoria School District, ____ F3d ___ (2013). 

Meanwhile, Davis was fired and was prosecuted for eight counts of felony theft and eight counts of felony official misconduct related to her use of the Student Activities Fund and other miscellaneous personnel issues while serving as principal.  She pled guilty to a misdemeanor and was sentenced to two years’ probation and repayment of $15,000. She appealed her termination, and in Nov. 2012 a hearing officer ruled that she was improperly fired. The school district is appealing the decision.

Federal employees and many state employees are covered by Whistleblower Protection statutes. In this case, McArdle did have a separate claim against the school district under the Illinois Whistleblower Act. A Federal employee who is the victim of an adverse personnel action after making allegations of fraud, waste or abuse has the right to file a complaint with the US Office of Special Counsel and may appeal to the Merit Systems Protection Board.

The attorneys of Kalijarvi, Chuzi, Newman and Fitch are highly experienced in handling whistleblower complaints.  Please call us if you believe you have been retaliated against as a whistleblower, or if you would like to learn more about your rights.

- this blog post was prepared by partner Elizabeth L. Newman.  You can reach her at enewman@kcnlaw.com.