By Kevin P. McGowan
Feb. 24 --Denying a petition filed by the city of Burbank, Calif., the U.S. Supreme Court Feb. 24 declined to review a federal appeals court ruling that a police officer placed on paid administrative leave after telling outside authorities about fellow officers' alleged physical abuse of criminal suspects may have a First Amendment retaliation claim (City of Burbank v. Dahlia, U.S., No. 13-620, cert. denied 2/24/14).
Burbank had asked for review of a U.S. Court of Appeals for the Ninth Circuit en banc decision reviving police officer Angelo Dahlia's claim under the Civil Rights Act of 1871 (42 U.S.C. § 1983) that the city violated the First Amendment by placing him on paid administrative leave four days after Dahlia told Los Angeles Police Department investigators he had seen and heard other Burbank officers physically abuse suspects during an armed robbery investigation (36 IER Cases 613, 2013 BL 222226 (9th Cir. 2013); 164 DLR A-1, 8/23/13).
Reversing a district court's dismissal of Dahlia's complaint, the Ninth Circuit had overturned precedent in Huppert v. City of Pittsburg, 574 F.3d 696, 29 IER Cases 911 (2009) , in which the court previously held a police officer in California has a state-law duty to report suspected criminal activity and so disclosure of fellow officers' potentially criminal misconduct is job-required speech not protected by the First Amendment.
Instead, the Ninth Circuit in Dahlia said the Supreme Court decision in Garcetti v. Ceballos, 547 U.S. 410, 24 IER Cases 737 (2006) (104 DLR AA-1, 5/31/06) requires a “practical inquiry” into a public employee's job duties to determine whether he engaged in speech protected by the First Amendment.
While Dahlia's reports to his Burbank supervisors about his fellow officers' alleged misconduct were job-required and therefore not protected speech, the Ninth Circuit remanded for a factual inquiry as to whether Dahlia's reports to his union president and the LAPD were protected speech because they were outside the chain of command and not pursuant to his official duties.
In seeking review, Burbank urged the Supreme Court to resolve a purported split among federal appeals courts on whether determination of a public employee's official job duties for First Amendment purposes is a matter of law or fact.
The city argued that under California law, Dahlia was required as a police officer to report suspected criminal activity and his reports about his fellow officers' alleged abuse of suspects therefore occurred pursuant to his official duties and can't be deemed constitutionally protected speech of a citizen on a matter of public concern.
The Ninth Circuit ruling that Dahlia was not required by his job to report suspected crimes could be read to support a “code of silence” among law enforcement officers about criminal misconduct by their peers, the city said.
Police officers who are required to report criminal activity should be considered apart from other public employees for First Amendment free-speech purposes, the city said. Burbank suggested that while some other employees might have First Amendment protection for disclosing their co-workers' alleged criminal misconduct, police officers such as Dahlia would not have a First Amendment claim as a matter of law because of their enhanced duty to report crimes.
“The circuits are split on whether the question of duty for a police officer to report crime is an issue of law or fact,” Burbank said. “That split should be resolved as to the narrow class of public employees that the duty exists as a matter of law.”
The Ninth Circuit's ruling that placement on paid administrative leave might be an adverse employment action also runs counter to “virtually every other circuit” to have considered the issue, the city said.
Burbank and most other cities often place police officers on paid leave while an administrative investigation is ongoing, such as the one in this case about whether Dahlia had made inconsistent statements to different authorities about his fellow officers' alleged abuse of suspects, the city said.
“Placement on administrative leave with pay pending an investigation into charges of misconduct is a common practice and keeps the employee whole,” Burbank said. “This is demonstrated in other circuits which have found that paid administrative leave is not adverse employment action.”
Burbank warned public employers face a “lose-lose scenario” under the Ninth Circuit's decision that paid administrative leave pending an investigation is potentially an actionable adverse action.
“[I]f they place the accused official on paid leave, they face liability for taking an adverse employment action regardless of the outcome of the investigation, and if they fail to place the official on administrative leave, they face liability from co-workers who are victims of the same misconduct as is being investigated or worse, liability to members of the public, who are the victims of alleged misconduct,” Burbank said.
Richard R. Terzian of Burke Williams & Sorensen in Los Angeles was counsel of record for Burbank.
In opposing review, Dahlia said the Ninth Circuit properly applied Garcetti's guidance that a court in a First Amendment retaliation case should conduct a “practical inquiry” into a public employee's job duties to determine whether the alleged protected speech was required as part of the employee's official duties.
“[T]he First Amendment question whether Dahlia was speaking as a citizen or pursuant to his official duties does not turn on the application of the general principles of California law that Burbank discusses,” Dahlia said.
“Rather, as this [Supreme] Court has emphasized, resolving that question requires a 'practical inquiry' in which a formal job description 'is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes,' ” Dahlia said, citing Garcetti.
Dahlia denied the federal circuit courts are split on whether a public employee's official job duties is a factual or legal question. Regardless of the terminology used, all the federal courts that have discussed the issue ultimately engage in a factual inquiry about the public employee's actual job duties, Dahlia said.
“These cases demonstrate that even in circuits that describe the scope-of-job-duties inquiry as a question of law, courts consistently answer that question by looking at the facts,” Dahlia said. “What is resolved as a matter of law is the ultimate question whether the speech is protected under the First Amendment, not the subordinate question of what an employee's job duties are.”
No Supreme Court case law supports Burbank's suggestion that police officers with a duty to report suspected criminal conduct should be treated differently than other public employees for First Amendment speech purposes, Dahlia said.
“This Court has not previously carved out such an exception, and Burbank's suggested justification--that officers 'constitute a special class of public employees with unique duties' including the reporting of crime--is unpersuasive,” Dahlia said.
A special First Amendment rule for law enforcement personnel would be difficult to administer, Dahlia said. The rule would pose “line-drawing questions” as not only police officers have a duty to report suspected crimes under certain circumstances, Dahlia said. For example, California teachers have a statutory duty to report suspected child abuse to authorities, Dahlia said.
The Ninth Circuit also correctly ruled Dahlia's placement on paid administrative leave could be adverse action, given evidence that he lost a promotion opportunity and forfeited on-call and holiday pay because of his forced leave, Dahlia said.
Although some courts may find some administrative leaves are not adverse action under the “context-specific” standard articulated in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 98 FEP Cases 385 (2006) (121 DLR AA-1, 6/23/06), Dahlia said Burbank can't show a federal circuit split about the appropriate legal standard.
Dahlia said his case is also “a poor vehicle” to examine whether paid administrative leave can be adverse action because he also alleged several other adverse actions, including his fellow officers' harassment and threats of physical harm, that could support his retaliation claim even if the paid leave was not adverse.
Michael A. Morguess in Fullerton, Calif., was counsel of record for Dahlia.
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