Ninth Circuit Decision in Ellins v. City of Sierra Madre Extends First Amendment Protection to Labor Union Representative Expressing Collective Concerns on Matters of Public Concern
In Garcetti v Ceballos, 547 US 410 (2006), the United States Supreme Court issued an important decision limiting the Free Speech rights of public employees. The case concerned a deputy district attorney who objected to misstatements made in an affidavit for a critical search warrant in a criminal prosecution. After raising his concerns with his supervisors, a deputy district attorney disclosed his concerns to a criminal defendant’s attorneys and ultimately wound up testifying in court under subpoena. In response, his supervisors retaliated against him by reassigning him undesirable duties, denying him promotion and transferring him to an undesirable office.
In Garcetti, the Supreme Court held that the deputy district attorney’s statements were not protected under the First Amendment. The Court held that public employees have no First Amendment protection for statements they make as public employees “pursuant to their official duties.” Rather, the Court decided, the First Amendment protects public employees who speak “as citizens on a matter of public concern.” The Court concluded that the deputy district attorney in Garcetti spoke as an employee pursuant to his official duties.
The Garcetti decision has caused a spate of court decisions trying to clarify when a public employee speaks “pursuant to their official duties” and when such employees speak as “citizens on a matter of public concern.”In Ellins v City of Sierra Madre, 710 F3d 1049 (2013), the Ninth Circuit issued a significant decision clarifying how Garcetti applies in the labor law context. In Ellins, the President of a police officer’s labor union led a vote of “no confidence” against the City’s Chief of Police. The plaintiff, Ellins, issued two press releases critical of the Chief’s leadership of the police department. One of the press releases announced a vote of no confidence taken by the union. According to Ellins, the vote of no confidence was taken due to the Police Chief’s lack of leadership, wasting of citizen’s tax dollars, hypocrisy, extensive paranoia, and damaging inability to perform her job. Ellins claimed that the Police Chief retaliated against him by delaying approval of his application for an advanced certification which led to a delay in Ellins receiving a 5% salary increase for a period of three months.
At the trial, the district court judge granted summary judgment against the plaintiff, finding that Ellins statements were made as an employee pursuant to official duties and that Ellins suffered no adverse action. The Ninth Circuit reversed the trial court and made three rulings of significance. First, the Ninth Circuit rejected the defendant’s argument that Ellins statements were mere “personnel grievances” unprotected under the First Amendment. The Ninth Circuit joined several other circuits holding that “collective personnel grievances raised by unions may be matters of public concern” because they are expressions of the concerns of the whole union in the operation of the police department, not simply expressions of individual employees personal grievances.
Second, the Ninth Circuit held that a jury could find that Ellins spoke in his role as union president rather than as a police officer. The Ninth Circuit pointed to evidence that the City did not pay Ellins to work as a union representative and that his official police duties did not include performing duties for the labor union. From this evidence, the court found, a jury could reasonably conclude that he spoke as a citizen on a matter of public concern.
Third, the Ninth Circuit held that, for purposes of a retaliation claim, an employer action reasonably likely to deter an employee from exercising their First Amendment rights is an “adverse action” under the law. The court held that a jury could reasonably find that a delay in receiving a salary increase would deter an employee for exercising their First Amendment right to speak.
The decision in Ellins extends the protection of the First Amendment to union representatives expressing the collective members concerns on matters of public concern and carves out an important exception to the Garcetti rule.