By: Brian D. Shekell
In Lane v. Franks, 13-483 (2014), the United States Supreme Court unanimously held that a public employee's testimony during a criminal proceeding was protected speech under the First Amendment.
Edward Lane was hired by Central Alabama Community College (CACC) to serve as its Director of Community Intensive Training for Youth (CITY). At the time of Lane's hire, CITY faced significant financial difficulties. That prompted Lane to conduct a comprehensive audit of CITY's finances. During the audit, Lane discovered that an Alabama State Representative, Suzanne Schmitz, was on CITY's payroll but never reported to her office. Lane confronted Schmitz about her absences and ordered her to show up to her office and perform her duties as a counselor. Schmitz refused and insisted that she continue to serve CITY in the same capacity she had in the past. Lane also reported Schmitz to CACC's president and its attorney, who warned Lane that terminating Schmitz "could have negative repercussions for him and CACC." Despite these warnings, Lane terminated Schmitz's employment.
The events surrounding Schmitz's termination were subsequently investigated by the Federal Bureau of Investigation (FBI). The investigation resulted in Schmitz being indicted on four counts of mail fraud and four counts of theft concerning a program receiving federal funds. Lane testified under subpoena at Schmitz's trial, which led to her conviction on all but one count.
Throughout this time, CITY continued to face financial difficulties. Lane recommended to CACC's president, Steve Franks, that layoffs be considered to address the budget shortfalls. Franks agreed and laid off 29 "probationary" employees, including Lane. Shortly thereafter, all but two of the 29 terminations were rescinded. Lane was one of the two employees not reinstated because of Franks' belief that Lane was in a "different category" than the others and was not considered an employee.
Lane subsequently brought suit against Franks claiming that he was terminated in retaliation for his testimony against Schmitz. The trial court granted Franks' motion for summary judgment. The Eleventh Circuit affirmed, holding that Lane's testimony was not protected by the First Amendment.
The Supreme Court reversed the Eleventh Circuit, finding that the First Amendment generally protects a public employee who provides truthful testimony compelled by a subpoena. The Court began its analysis by noting that public employers may not condition employment on the relinquishment of constitutional rights. Whether a public employee is entitled to First Amendment protection requires balancing the interests of the employee as a citizen, in commenting upon matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.
The Court applied a two-step inquiry to determine whether Lane's speech was entitled to First Amendment protection. First, was Lane's subpoenaed testimony "speech as a citizen on a matter of public concern?" Second, if Lane did speak as a citizen on a matter of public concern, did CACC have an adequate justification for treating Lane differently from any other member of the general public?
Turning to the first prong, the Court found that Lane spoke as a citizen on a matter of public concern when he testified at Schmitz's trial. By providing sworn testimony at trial, Lane had an obligation to the court and society at large to tell the truth. This obligation is distinct from any separate obligation Lane had to his public employer. In addition, simply because Lane's speech concerned information acquired during his public employment did not transform that speech into employee, rather than citizen, speech. The Court also commented that speech by public employees on matters related to their employment hold "special value" because those employees gain knowledge of matters of public concern during the course of their employment.
The Court next reviewed whether the testimony was in regard to a matter of public concern by analyzing the "content, form, and context" of the speech. The Court found that Lane's testimony was related to a matter of public concern because it involved corruption in a federal program that involved the misuse of state funds. Also, the form and context of the speech was sworn testimony in a judicial proceeding.
On the second prong of the analysis, the Court held that Franks failed to identify any governmental interest which justified Lane's termination for testifying at trial. For example, there was no evidence that Lane provided false testimony or that he unnecessarily disclosed sensitive, confidential or privileged information.
Even though Lane's testimony was protected speech under the First Amendment, Franks was entitled to qualified immunity because he could have reasonably believed that he could lawfully terminate Lane because his testimony was outside the scope of his ordinary job responsibilities. Specifically, the was no clear precedent on this issue prior to the Court's opinion.
In light of this decision, public employers should be aware that adverse employment actions may not be taken against an employee who provides truthful testimony compelled by subpoena. Public employers are also no longer able to rely on a qualified immunity defense on this issue now that that Supreme Court has clarified that subpoenaed testimony is protected by the First Amendment.
If you have any questions about First Amendment protections for public employees, you may contact Brian Shekell at (313) 965-8803 or eat0@eau0eav0eaw0, or another member of Clark Hill's Labor and Employment Practice Group.