Lawyer Fired From Second Job as Reserve Cop Lacks Claim

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 Hassan A. Kanu

Nov. 8 — A lawyer who had a “tumultuous” second job as a volunteer reserve police officer in Washington, D.C., until he was fired for sending e-mails criticizing and ridiculing his superiors doesn’t have a triable claim that he was punished for exercising his First Amendment rights, a federal judge ruled ( Lefande v. D.C. , D.C. Cir., No. 15-7055, 11/8/16 ).

Matthew LeFande is a former D.C. prosecutor who now “specializes in civil rights litigation, particularly against the District of Columbia and the Metropolitan Police Department,” according to his complaint in a 2010 case against another Washington police officer. In that lawsuit, LeFande sued an officer he’d had a previous romantic relationship with for defamation and malicious prosecution after the woman accused him of stalking her. He lost the case but has an appeal pending.

LeFande also sued the Metropolitan Police Department on behalf of two named plaintiffs and a proposed class of all reservists in 2006. The lawsuit challenged regulations that deny reservists certain rights, such as collective bargaining.

During the same period, LeFande sent e-mails to his superiors accusing them of “delusions of adequacy” and “perpetual incompetence” and that included other “caustic” and “accusatory language,” Judge David Tatel of the U.S. District Court for the District of Columbia Circuit wrote in his decision in the present case. He also forwarded the message to a listserv of co-workers. He was fired just before an oral argument in the class action, which he ultimately lost.

LeFande alleged that his e-mails were protected by the U.S. Constitution and therefore his firing was illegal retaliation, but the court disagreed in a Nov. 8 opinion. The decision highlights some important limitations on the constitutional guarantee of freedom of speech.

Balancing Test

Under the First Amendment, people who work for the government can’t be punished for their communications—as long as certain conditions are met. Public workers’ speech is protected when it is made within the person’s role as a regular citizen and where the person’s and public’s interest in making and hearing the speech outweighs the government’s interest in promoting efficiency.

If those conditions are met, a government employer can’t punish a person on the basis of that particular speech. Government employers that fire a worker who purports to be a whistle-blower, as LeFande did, have to show they would have fired the person regardless of whether they made the protected speech.

Additionally, there are stronger governmental interests in regulating the speech of police officers than other government workers, due to the special degree of trust and discipline required for police work.

The police department explained in its termination letter that LeFande was being fired because the “tone, tenor, content and distribution” of his e-mails would diminish respect for reserve corps officials and undermine morale. The messages also showed that LeFande was a “disruptive force” and “blatantly insubordinate,” the department said.

Government’s Rights Win Out

LeFande’s speech comes within the ambit of the First Amendment because police personnel policy and public safety is an important public matter, Tatel wrote.

Nonetheless, LeFande’s statements had a clear potential to undermine office relations and could also impair discipline because they “expressly disrespect” his superiors, Tatel wrote. “More fundamentally, when we consider the ‘manner’ and ‘context’” of the messages, “they read more as personal attacks” on LeFande’s boss “than as proposals for improving departmental policy,” the court said.

The government’s interest in preventing disruptions and insubordination in its police force therefore outweigh LeFande’s in making the speech contained in the e-mails and the public’s interesting in receiving the information, Tatel concluded.

LeFande represented himself. The attorney general’s office represented the District.

To contact the reporter on this story: Hassan A. Kanu in Washington at hkanu@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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