This week, the 7th Circuit Court of Appeals ruled that an employee of the Chicago Independent Police Review Authority did not enjoy First Amendment protections of free speech when he was discharged for refusing a directive of his supervisor to change findings in his reports on police misconduct.
Lorenzo Davis, an investigator and an intermediate supervisor for IPRA conducted investigations into police misconduct complaints and ultimately prepared reports which stated whether the allegations were “sustained,” “not sustained,” “exonerated,” or “unfounded.” Those reports were sent to the head of IPRA who in turn made recommendations to the Chicago Police Department as to whether an officer should be discharged.
In 2014, a new Director of IPRA began directing Davis to change his findings in some of his reports to a more favorable outcome for the subject officer. Davis apparently refused to make changes. In 2015, the Director issued a policy stating that investigators were required to change reports when so directed or face discipline for insubordination. After that policy issued, Davis continued to refuse to change reported findings to more favorable results. IPRA fired him. He sued the City alleging, among other things, a violation of his First Amendment right to free speech.
The law states that in order to show that speech is protected under the First Amendment, a public employee has to demonstrate that “(1) he made the speech as a private citizen, (2) the speech addressed a matter of public concern, and (3) his interest in expressing that speech was not outweighed by the state’s interests as an employer in ‘promoting effective and efficient public service.’” The lower court easily dismissed Davis’s claim, finding that in preparing the reports, which he refused to change, he was not “speaking” as a private citizen.
On appeal, Davis made two novel arguments. First, he argued that he did not act pursuant to his duties because his duties could not have included drafting inaccurate and misleading reports to absolve officers of misconduct. Second, Davis tried to distinguish between him being dismissed for making a statement and refusing to make a statement.
Unfortunately for Davis, the 7th Circuit didn’t buy either of these arguments. As to his first argument, the court found that “the fact that an employee may have good reasons to refuse an order, does ‘not necessarily mean the employee has a cause of action under the First Amendment when he contravenes that order.’” As to his second argument, the court found that the actual test for free speech protections was developed by courts to avoid “regular intervention by courts in the management of public employees” regardless if the employee is “making a statement or refusing to make one.”
Public employers should carefully analyze a situation before discharging an employee for statements that he or she has made. The first consideration is always whether the statements were made by the employee in the course of or about his job or whether they were made purely as a private citizen about a matter of public interest or concern.