From labor disputes cases to labor and employment publications, for your research, you’ll find solutions on Bloomberg Law®. Protect your clients by developing strategies based on Litigation...
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.
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.
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 email@example.com
To contact the editor responsible for this story: Susan J. McGolrick at firstname.lastname@example.org
Text of the opinion is available at http://www.bloomberglaw.com/public/document/Carollo_v_Boria_No_1511512_2016_BL_266023_11th_Cir_Aug_17_2016_Co.
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)