Officers’ Speech To City Council Not Constitutionally Protected

Written on 07/09/2022
Will Aitchison

One might think that speech to a city council is clearly protected by the free speech guarantees of the First Amendment. As two high-ranking police officers with the City of Jellico, Tennessee discovered, the Supreme Court’s constricted view in Garcetti v. Ceballos of free speech rights of public employees means that even speech to a city council can be the basis for termination.

The dispute started when Dwight Osborn was elected mayor in November 2018. Osborn wanted to make some changes to the Jellico Police Department. Three days after he took office, Osborne called a meeting with all of Jellico’s police officers, including Police Chief Christo­pher Anderson and Assistant Police Chief J.J. Hatmaker.

The meeting covered several topics. Osborn wanted the officers to use more courteous language when interacting with the public, and he proposed a more formal police uniform and increased use of marked police cars. He asked the officers to spend more time on patrol in hopes of decreasing the amount of drug use and prostitution. Osborn asked the officers to clean up Jellico’s homelessness problem by arresting homeless individuals. Osborne also asked that the two supervisory officers, Anderson and Hatmaker, work different shifts and that the officers spread their shifts over the course of the day to mini­mize overtime.

When Osborn put these ideas into play to a good deal of local controversy, the disputes ended up being aired at a city council meeting. Anderson and Hatmaker attended in uniform, something that was not unusual as at least one of the two typ­ically attended every city council meeting and often spoke about law enforcement policy.

When the Council voted “to give the police officers a chance to voice their concerns as it is their duty to protect us,” Hatmaker and Anderson spoke. Hatmaker read a statement that police officers answered to “the Chief of Police, not the damn Mayor.” Osborn then told Hatmaker to sit down. At that point, Anderson asked to speak, insisting that the council “go ahead and take a vote to terminate me” because he did not want to have to deal with this friction for the rest of Osborn’s term.

Hatmaker continued by saying that “this scheduling and this micromanaging is putting the safety of the public at risk” and that allowing the mayor to schedule police officers “is endangering your lives, your family’s lives, and your school children.”

In short order, the City fired Ander­son and Hatmaker, who responded with a lawsuit claiming they were terminated for exercising their constitutionally-guar­anteed free speech rights. The federal Sixth Circuit Court of Appeals dismissed their claims.

The Court found that under Garcetti v. Ceballos, “Employees who make state­ments pursuant to their official duties are not speaking as citizens for First Amend­ment purposes, and the Constitution does not insulate their communications from employer discipline. The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.

“Gauged by these considerations, An­derson and Hatmaker’s speech was not pro­tected. The speech fell squarely within their existing job duties, to start. As the senior officers in the Department, Anderson and Hatmaker regularly attended city council meetings and weighed in on agenda items involving the police. The police manual documents that Anderson had the duty to ‘provide advice to the Board of Mayor and Alders and governing body on matters pertaining to the Police Department.’ Although the manual does not establish the same with respect to Hatmaker, he had represented the Department at city council meetings in the past and had this ‘de facto’ responsibility as well.

“The setting and audience of the meeting reinforces the conclusion that the officers spoke as employees. They wore their police uniforms and spoke during the portion of the meeting reserved for official business as opposed to citizen complaints. And their audience was the governing body to which they reported. The reality that other citizens were present at the meeting does not change the identity of Anderson and Hatmaker’s immediate audience: elected officials who had the power to fire them.”

Anderson v. City of Jellico, 2022 WL 1308503 (6th Cir. 2022).

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