Las Vegas POA

Reporting Corruption Not Protected By First Amendment

Written on 12/10/2020
Will Aitchison

Detective John Butcher of Saginaw County, Michigan seized $22,583 in cash from Pierre Najjar during a narcotics investigation. When Najjar agreed to pay the Sheriff’s Department the money seized from him in lieu of entering formal civil forfeiture proceedings, Butcher delivered the money to Garrett DeWyse, the Department’s property and evidence room manager.

A few weeks later, Butcher asked DeWyse to release $2,000 of the funds to pay for confidential informants and controlled substance buys. Believing the request was improper, DeWyse refused. Lieutenant Randy Pfau ordered DeWyse to release the money and so he did. Throughout the following year, Butcher returned to the property room to make similar withdrawals from the Najjar funds until they were depleted. For each disbursal, both DeWyse and Butcher signed a chit sheet documenting the date and amount withdrawn. As the funds became depleted, Pfau, Butcher, DeWyse, and Koren Reaman, the Finance Director in the Controller’s Office, met to discuss Butcher’s use of the funds.

Sometime later, Sheriff William Federspiel began to compile information for an annual report to the State of Michigan related to the Department’s 2015 civil forfeiture activities. The Department’s Undersheriff, who ordinarily would have prepared the report, was out sick. In the Undersheriff’s absence, Federspiel asked DeWyse to gather some information related to the prior year’s forfeitures and communicate with the Controller’s Office as needed.

While compiling information for the report, DeWyse came to believe the Najjar funds had been mishandled. From his own research, DeWyse understood that civil forfeiture funds must be deposited with the treasurer or the general municipality. The Najjar funds, in his opinion, were off the books, meaning they would not be accounted for in the annual report. DeWyse became afraid that being a part of this process would reflect poorly on him as the report would not balance out the forfeiture data. He also came to believe that Butcher’s actions were illegal.

DeWyse arranged a meeting with the Finance Director. During the meeting, DeWyse disclosed that the Najjar funds had been completely withdrawn. The Department then demoted DeWyse from his role in the property room. DeWyse eventually left the Department for a position with a different police agency. He then filed a First Amendment retaliation claim against the County.

The question for the federal Sixth Circuit Court of Appeals was whether DeWyse’s statements to the Finance Director were made in the course of his job as a deputy sheriff. If they were, the dictates of the Supreme Court’s decision in Garcetti v. Ceballos would render the statements unprotected by the First Amendment. As the Court noted, “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.

“Relevant factors include the speech’s impetus, its setting, its audience, and its general subject matter. Starting with the impetus for DeWyse’s speech, the genesis primarily appears to have been his concern over his professional reputation. According to DeWyse, he worried the discrepancy in the Department’s financial data would reflect poorly on him because he was part of the process of removing the funds from the property room. In that respect, his speech was animated far more by his role as an employee than as a member of the public at large.

“The setting (a meeting to discuss the County Sheriff’s Department’s financial practices) and audience (the County Financial Director) for DeWyse’s speech are to the same effect. To be sure, The Finance Director was not one of DeWyse’s supervisors, and speech outside the chain of command is less likely to be within an employee’s ordinary job responsibilities. But most significant here is not DeWyse’s chain of command, but rather whether he communicated pursuant to his official duties. Because DeWyse acknowledged he was instructed to speak with the Finance Director as part of his job duties, these factors also reflect that DeWyse spoke as a public employee.

“And then consider the subject matter of DeWyse’s communication to the Finance Director – the Department’s forfeiture funds. It makes no difference whether DeWyse communicated with the Finance Director in the context of the special audit role the Sheriff assigned him rather than in his customary role as property room manager. Although his regular duties involved managing the property room, DeWyse was asked to prepare the audit report.

“In reaching this outcome, we do not question DeWyse’s motivation, nor do we condone disciplining public employees for raising concerns about government mismanagement or corruption. But in this public employment setting, laudable intent alone is not enough to secure First Amendment protection.”

DeWyse v. Federspiel, 2020 WL 5993092 (6th Cir. 2020).

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