Thursday, October 24, 2019

Third Circuit: First Amendment protects public employee's report of a crime

The Third Circuit issued a precedential opinion in Javitz v. County of Luzerne.

The plaintiff was the Director of Human Resources for Luzerne County. She claims that a union representative unlawfully recorded an investigatory meeting in which she participated (a violation of Pennsylvania's wiretapping law, 18 Pa. Cons. Stat. § 5703). The plaintiff reported the alleged crime to her supervisor, and they met with the DA (who referred it to the AG).

Not official use. 
Welp, she got fired. And, she claims it was in retaliation for reporting the alleged crime. Is she protected by the First Amendment? The First Amendment does protect public employees who speak as private citizens on matters of public concern. There's a big hurdle though - employee statements made pursuant to their official duties are not protected.

Here, she was complaining about an incident that occurred at work, and she reported it to her work supervisor. The Third Circuit, however, concluded that she was till protected by the First Amendment. The reason? Reporting the crime fell outside of her job duties.

Sure, she had access to high level employees to whom she reported the crime as part of her job. And, the County Ethics Code encouraged reporting of "violation[s] of the law." But, it was not "some formal job duty or responsibility" to report the crime. Her case was therefore remanded back to the trial court to allow her to proceed on her First Amendment claim

Second issue: She was not protected by the 14th Amendment's Due Process Clause because at will employees do not have a "property" interest in ongoing employment.

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