‘Taco Tuesday,' Other Conversations Not Protected Speech

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By Melissa Heelan Stanzione

An assistant public defender who was said to have spread rumors about his demotion can’t claim his free speech rights were violated when he was fired for the statements, the Third Circuit held June 29 ( De Ritis v. McGarrigle , 2017 BL 224767, 3d Cir., No. 16-1433, 6/29/17 .

First Amendment rights of public employees are tempered by the government’s need for “efficient provision of public services,” Judge Cheryl Ann Krause wrote for the U.S. Court of Appeals for the Third Circuit.

Joseph De Ritis’s speech would be protected only if he spoke as a citizen on a matter of public concern and his employer didn’t have a good reason for treating him differently than the “general public,” the court said.

‘Taco Tuesday’

After De Ritis was removed from the office’s trial team and reassigned to the juvenile court unit, he alleged to judges, attorneys and government officials that he had been reassigned because his clients weren’t pleading guilty fast enough, according to statements cited in the appeals court decision.

De Ritis neglected to speak with his supervisor about his firing, the court said.

His conversations with judges and attorneys in the courthouse qualified as official communications that were part of his job duties and weren’t protected, it said.

A discussion with an attorney during a “Taco Tuesday” session after work wasn’t official, but it wasn’t a matter of public concern because De Ritis merely aired personal grievances, it said.

De Ritis’s talks with government officials were also more about his personal grievance than about whistleblowing, the court said.

Even though he seemed concerned about the rights of his clients when discussing his perceived demotion, he “remained focused” on how the demotion was damaging his career, it said.

Furthermore, these persistent, unverified comments were potentially disruptive to the public defender’s office, so his supervisor had a right to treat him differently from a member of the public and fire him, the court said.

Because De Ritis’s speech isn’t protected, his supervisor is entitled to qualified immunity for his decision to fire him, the court said.

The qualified immunity doctrine shields public officials from liability for civil damages as long as they haven’t violated clearly established rights.

Judges Thomas I. Vanaskie and Richard L. Nygaard joined the opinion.

De Ritis represented himself.

Holsten & Associates represented the county officials.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

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