Whistle-Blowing City Manager Sees Free Speech Claims Revived

Daily Labor Report® is the objective resource the nation’s foremost labor and employment professionals read and rely on, providing reliable, analytical coverage of top labor and employment...

By Jon Steingart

Aug. 17 — A Florida city manager who was fired after he alleged corruption and campaign finance violations by the mayor may proceed with a claim that his termination violated his First Amendment free speech rights, a federal appeals court ruled ( Carollo v. Boria , 2016 BL 266023, 11th Cir., No. 15-11512, 8/17/16 ).

The appeals court “provided a very important guideline for other public officials in the future,” Diana Fitzgerald, an attorney for the city manager, told Bloomberg BNA Aug. 17. “It protects public employees’ First Amendment rights when they’re trying to act as whistle-blowers and report such information and corruption as they see it,” she said. Fitzgerald is with Fitzgerald & Isaacson LLP in Miami.

The decision applies the U.S. Supreme Court’s ruling in Lane v. Franks , 134 S. Ct. 2369, 38 IER Cases 585 (U.S. 2014), Oscar Marrero, an attorney for the mayor and other city officials, told Bloomberg BNA Aug. 17. Lane said the protection a public employee’s speech receives depends on whether it “owes its existence” to his employment, Marrero said.

A public employer doesn't offend the First Amendment by restricting speech rooted in someone's job duties, the Supreme Court held in Garcetti v. Ceballos, 547 U.S. 410 (2006). “It simply reflects the exercise of employer control over what the employer itself has commissioned or created,” Judge Paul L. Friedman wrote, quoting Garcetti.

Job Duties Examined

Determining whether speech originates from a job or from the person's status as an ordinary citizen requires an examination of the circumstances and duties involved in the position, he said. It also requires an understanding of “what is the person responsible for, practically, on a day-to-day basis,” said Marrero, of Marrero & Wydler in Coral Gables, Fla.

Former Doral, Fla., City Manager Joe Carollo sufficiently pleaded that he reported the mayor’s wrongdoing in his capacity as a private citizen rather than as a public employee, Friedman wrote for the U.S. Court of Appeals for the Eleventh Circuit.

If evidence produced during discovery shows Carollo's position didn't require him to report suspected misconduct, then “it violated the First Amendment to terminate a colleague for speaking about matters of public concern that are outside the scope of his ordinary job responsibilities,” Friedman said, reversing a lower court’s dismissal of Carollo’s complaint.

The ruling isn’t a comment on the merits of Carollo’s claim, Marrero said. Whether Carollo acted in the course of his duties “can only be determined after discovery and depositions have taken place,” he said.

Scope of Duties Unclear

Carollo told local and federal law enforcement agencies that the mayor and other city officials received undisclosed campaign contributions, didn’t disclose potential conflicts of interest and took official actions that may have been motivated by personal enrichment, Friedman said. Carollo also presented his allegations at city council meetings, Friedman said.

Carollo’s duties as city manager included ensuring laws were “faithfully executed,” Friedman said. But it wasn’t clear whether campaign finance and ethics laws are included in his position’s scope, the judge said.

The case turns on whether Carollo’s reports were part of his duties, Friedman said. “Discovery will illuminate exactly which laws Carollo had the responsibility to enforce or administer and, in fact, enforced or administered in the ordinary course of his job responsibilities,” he said.

It’s clear, however, that Carollo didn’t have an “implied duty” to report suspected misconduct, Friedman said. Allowing a constructive duty to report “would eviscerate the role of the First Amendment in protecting public employees who act as whistleblowers,” Friedman said.

Judges Stanley Marcus and Peter T. Fay joined the opinion.

To contact the reporter on this story: Jon Steingart in Washington at jsteingart@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.