Fired Public School Auditor Lacks First Amendment Claim

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By Kevin McGowan

Sept. 24 — A Colorado school district auditor fired after she reported suspected budget fraud to two school board members lacks a First Amendment retaliation claim because she spoke as an employee, not a citizen, the U.S. Court of Appeals for the Tenth Circuit ruled Sept. 24.

Affirming summary judgment for Adams 12 Five Star Schools and two district officials, the court said Gina Holub didn't engage in First Amendment-protected speech because uncovering and reporting budget problems was part of her official job duties.

Holub argued that under the U.S. Supreme Court decision in Lane v. Franks, 134 S. Ct. 2369, 38 IER Cases 585 (2014), her speech was protected because she didn't ordinarily contact school board members to discuss budget irregularities. She never had previously complained to the board about suspected budget fraud, Holub said.

In Lane, the Supreme Court ruled a community college employee fired after testifying under subpoena in a state legislator's criminal trial raised a First Amendment claim he was terminated for citizen speech on a matter of public concern when such testimony wasn't part of his customary job duties.

But Lane's reference to speech that is part of an employee's “ordinary” job responsibilities doesn't refer to the frequency of the speech, the Tenth Circuit said.

Rather, the Supreme Court decisions in Lane and Garcetti v. Ceballos, 547 U.S. 410, 24 IER Cases 737 (2006) “direct us to focus on whether the employee's speech was within the employee's usual duties, not whether the speech itself was frequent, usual, or customary,” the court said.

Holub's report to the board members that she suspected the district's salary budget exceeded an amount permitted by state law “fell squarely within” her “ordinary and usual responsibilities” as internal auditor, the court said.

“Because Holub's comments to [the board members], while not customary, were made pursuant to her ordinary duties, the First Amendment did not protect her speech,” Judge Nancy Moritz wrote.

Holub therefore failed to satisfy the first step of the First Amendment retaliation analysis, which asks if an employee spoke pursuant to her official duties or as a citizen on a matter of public concern, the court said. Since Holub made her comments to the board members pursuant to her job duties, her speech lacks constitutional protection, the court said.

Judges Timothy M. Tymkovich and Scott M. Matheson joined in the decision.

State Law Claims Also Fail 

Holub also lacks state law claims for breach of contract, intentional interference with contract or wrongful discharge in violation of public policy against the district, Superintendent Chris Gdowski or Chief Financial Officer Shelley Becker, the Tenth Circuit affirmed.

Holub argued that disputed factual issues exist about whether she was fired for “cause,” as her employment contract required. Gdowski and Becker engaged in a “feigned debate” with Holub after she unearthed the suspicious salary budget figures in order to “cover up” their knowledge the district had a greater budget excess than legally permitted, Holub contended. For similar reasons, her termination was a wrongful discharge in violation of public policy, Holub argued.

But the district court didn't err in finding “there are simply no disputed material facts to support Holub's conspiracy theory,” the Tenth Circuit said.

Holub was terminated only after Gdowski and Becker met with her multiple times to discuss the purported budget irregularities, and the district brought in an independent external auditor to review the budget figures. That auditor found no state law violations, but Holub wouldn't let the issue die, the court said. The supervisors terminated Holub only after she ignored their entreaties to move on from the salary budget issue, the court said.

Cross Liechty Lane PC represented Holub. Hall & Evans represented the school district and individual defendants.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

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

Text of the opinion is available at http://www.bloomberglaw.com/public/document/GINA_HOLUB_Plaintiff__Appellant_v_CHRIS_GDOWSKI_
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