Sgt. Andrew N. Matthews v. Department of Public Safety
MEMORANDUM OF DECISION RE MOTION TO STRIKE
Since 1998, the plaintiff, Sgt. Andrew N. Matthews, has been a member of the Connecticut State Police (“CSP”), a division within the defendant, Department of Public Safety 1 (“the department”). On March 21, 2011, he filed a one-count complaint against the defendant, pursuant to General Statutes § 31–51q, alleging violation of the free speech provisions of the Connecticut Constitution, specifically article first, §§ 3, 4 and 14 of the Connecticut Constitution. The operative complaint is the amended complaint filed June 8, 2012.
The complaint alleges the following facts: At all relevant times, the plaintiff was employed, and continues to be employed, by the department as a CSP officer. In May 2000, the plaintiff was assigned to the major crimes unit. He was promoted to sergeant in July 2004, at which time he was transferred to the internal affairs unit where his job responsibilities included the investigation of claims of misconduct by members of the CSP.
While assigned to the internal affairs unit, the plaintiff discovered that the department management 2 had engaged in “a pattern and practice of covering up the misconduct of fellow officers.” Such misconduct included “alcohol abuse, driving while intoxicated, suicidal behavior, sexual abuse and family violence.” The plaintiff refused to participate in this practice of covering up alleged criminal acts and sought to bring to light this pattern and practice. In June 2005, the plaintiff contacted the state auditors of public accounts and the office of attorney general regarding the alleged corruption within the internal affairs unit. Then Commissioner Leonard C. Boyle became aware that the plaintiff was going outside the department to report “unethical practices within the state police” in June or July 2005.
On July 7, 2005, the plaintiff was transferred out of internal affairs into the newly created risk management unit of the CSP. The transfer was disciplinary in nature and was ordered by Boyle after he learned that the plaintiff had gone to the CSP union and the attorney general's office to complain about corruption within the internal affairs unit. The risk management unit had only one other member. In August 2005, the plaintiff sought protection, and received official designation, as a whistle blower from the attorney general's office. The transfer from internal affairs to risk management was done for a retaliatory purpose in order “to harass, humiliate, intimidate, isolate and ostracize” the plaintiff by placing him into “a hostile, intimidating, and threatening work environment” and to deny him supervisory experience, overtime and promotional opportunities, which, in fact, were subsequently denied to him.
Although the supervisor of the risk management unit was physically located in Meriden, the plaintiff was assigned to work in a cubicle at CSP headquarters in Middletown so that senior officers could monitor his actions. Boyle authorized a personal evaluation report of plaintiff based on his work in internal affairs that did not reflect the truth of his performance. The plaintiff received a lower rating than all other members of the internal affairs unit despite the fact that the plaintiff worked longer hours than those other members. The report was inconsistent with previous evaluations of the plaintiff, was used to justify his transfer out of the internal affairs unit and was motivated by Boyle's hostility and bias toward the plaintiff. After the transfer, the plaintiff received positive ratings for his performance in the risk management unit.
On September 20, 2005, at a CSP union meeting, the plaintiff publicly stated that he was the source of the information concerning internal affairs corruption and was cooperating with the attorney general's office in its investigation. The following day, the plaintiff was called to a meeting with Major Christopher Arciero, who was acting under the authority of Boyle, and was told that a union member had reported to him the events of the union meeting. Arciero questioned the plaintiff about being a whistleblower, and stated that he “would do anything to prevent someone from smearing the image of the agency.”
On September 23, 2005, the plaintiff met with Boyle's chief of staff, then Andrew Crumbie, concerning the plaintiff's allegations. After returning to his desk from the meeting, the plaintiff discovered a note reading “CANCER.” The plaintiff presented the note to Crumbie and requested a criminal investigation be conducted based on the note. After speaking with Boyle and Colonel Edward Lynch, Crumbie stated that Boyle would not authorize such an investigation. An internal affairs investigation was opened, but not pursued. Evidence was mishandled and lost by the department and Boyle and the investigation of this “threat” was seriously delayed. Boyle failed to follow departmental policy and failed “to correct the hostile work environment” for the plaintiff or otherwise take steps to insure his safety. The plaintiff refused to return to his cubicle for fear of his safety. The failure of Boyle to follow department policy or provide support to the plaintiff was “intended to punish and retaliate” against him for becoming a whistleblower.
In October 2005, the New York state police (“NYSP”), was called in to investigate the internal affairs program of the CSP. The NYSP investigation lasted one year and “concluded with a lengthy report” detailing its findings that there were “systemic failures” within the internal affairs unit of the CSP. From October 2005 to March 2006, the plaintiff was interviewed six times by the NYSP. As a result of the plaintiff's cooperation with the NYSP and the attorney general's investigations, “high ranking managers” of the defendant “took retaliatory action to punish him and deter others from becoming whistleblowers.” Boyle received unsealed transcripts of the investigators' interviews of the plaintiff and his retaliatory actions toward the plaintiff escalated following the interviews.
Boyle authorized an internal affairs investigation against the plaintiff for the “alleged misconduct” of becoming a whistleblower while a member of the internal affairs unit. Boyle assigned an investigator who he knew was angry with the plaintiff for becoming a whistleblower. In 2006 and 2007, Boyle and his successor, Commissioner John Danaher III, gave orders to internal affairs to initiate two internal investigations and a criminal investigation of the plaintiff. In violation of department policy and the collective bargaining agreement, neither the plaintiff nor the CSP union were notified of these complaints. These acts were a clear deviation from standard procedure.
In April 2006, the plaintiff informed Lynch in a written memorandum about his concerns related to a use of force report and the management's failure to take corrective action. This information was disclosed to the attorney general's office and the auditors of public accounts. Lynch subsequently informed the plaintiff that the risk management unit would no longer review use of force reports and that the unit would be removed from the professional standards division. It would also report directly to Lynch. These acts effectively changed the plaintiff's chain of command.
In April 2006, the risk management unit was transferred back to CSP headquarters in Middletown. Lieutenant William Podgorski instructed Lieutenant Pagoni to contact him every time Pagoni left the office. Podgorski also spoke to another CSP employee and stated that there was “somebody the Colonel wants to watch” and that “they're a problem.” On May 24, 2006, the plaintiff wrote a detailed memorandum to Boyle and two other officers regarding this transfer complaining it was a hostile work environment. Two days later the CSP union filed a grievance on behalf of the plaintiff concerning the order transferring the plaintiff to what was a hostile work location. During the plaintiff's time at headquarters, his on and off duty actions and whereabouts were intensely monitored and scrutinized. The CSP union filed several additional grievances on his behalf over the following months.
After the plaintiff's transfer back to headquarters in Middletown, the plaintiff was denied access to the “Commissioner's suite.” The suite had previously been left open to all CSP employees pursuant to Boyle's “open door policy.” The suite also housed employee mailboxes. Upon the plaintiff's return, the suite was permanently locked and only accessible to those employees with key card access. The plaintiff did not have access, and, in response to his request, was denied access to the suite. The denial was intended to humiliate, intimidate and ostracize the plaintiff and it restricted the plaintiff from fully performing his job duties.
In June 2006, the plaintiff filed whistleblower retaliation complaints with the Connecticut Commission on Human Rights and Opportunities (“CHRO”), and the attorney general's office. During the investigation of the whistleblower retaliation complaint filed with the attorney general's office, Boyle requested that a legal advisor be present during many of the witness interviews in an effort to intimidate the witnesses and prevent them from speaking freely.
Throughout the summer 2006, the plaintiff continued to suffer emotional distress based on the department's “threatening, ostracizing, harassing and monitoring of him.” In August 2006, Boyle received a draft copy of the NYSP/attorney general's investigative report. On November 21, 2006, the CSP union requested that the plaintiff be immediately reassigned to a location not within headquarters. Boyle approved the request in order to “protect the state police” from complaints by the plaintiff. Boyle stated that he did not believe the plaintiff's safety was compromised. From November 2006 to around February 2009, the plaintiff was not given another work location and “was forced to sit in his assigned vehicle during each work day.”
On December 4, 2006, the final report of the NYSP was issued. It confirmed that the department had a “pattern and practice of tolerating unethical and unlawful acts of troopers and managers.” The report caused significant embarrassment to the CSP. On December 7, 2006, the plaintiff requested whistleblower protection from the attorney general's office. On January 12, 2007, the plaintiff's union wrote to Boyle stating there were safety concerns based on the report, and requested that the plaintiff be placed on paid administrative leave until the attorney general's office could complete its investigation into the plaintiff's claims of retaliation. On February 7, 2007, Boyle denied this request “and simultaneously approved a transfer” of the plaintiff to office space at Brainard Field in Hartford. At that time, the same office space was being used by other members of the CSP to conduct criminal interviews stemming from the NYSP report. As a result, many of the individuals identified by the plaintiff in connection with his cooperation with the NYSP would have been steps away from the plaintiff's office.
Thereafter, the CSP union requested that the plaintiff be assigned to the forensic laboratory in Meriden. Although this relocation was ultimately approved by Boyle, the plaintiff had limited access to common areas and was assigned to work in a location within the laboratory that was not secure. Boyle subsequently authorized the referral of the plaintiff to the employee assistance program “to see if he was in need of any services.” This act was meant to harass and intimidate the plaintiff by baselessly calling into question his mental stability.
Boyle left state service on March 1, 2007. He harbored resentment toward the plaintiff for speaking out about corruption within the CSP. Boyle intentionally retaliated against the plaintiff, failed to protect his safety, failed to support him as a whistleblower or to consider the risk of danger to him as a whistleblower. By his action or inaction, Boyle intended to punish the plaintiff for his cooperation in the investigations of the NYSP and the attorney general's office. Similar actions were taken and Boyle's actions were ratified by Danaher, Boyle's successor.
The plaintiff was issued a police cruiser that was equipped with a global positioning system (“GPS”). The cruiser was also used off-duty. Other sergeants assigned to the same location as the plaintiff were issued cruisers that were not equipped with GPS. This action was a deviation from established CSP procedure.
On March 9, 2007, the union wrote to Danaher requesting that the plaintiff be placed on paid administrative leave because there was no suitable work location for the plaintiff and the Meriden laboratory location was unacceptable. Danaher denied this request, stating that there was no evidence of any threat or risk to the plaintiff. Podgorski, under the direction of Danaher and Colonel Thomas Davoren, ordered the plaintiff to report to CSP headquarters. Podgorski also stated that a failure to report to that location may result in administrative action. This amounted to a threat of adverse personnel action if the plaintiff failed to report to a hostile work environment.
On April 13, 2007, the union wrote Danaher with its concerns for the plaintiff's workplace safety and again requested paid administrative leave. It also stated the Meriden laboratory location was unacceptable because the plaintiff was put to work in an uncontrolled location then being used as a mail room. This request was denied by Danaher on May 8, 2007.
The attorney general's report was issued on May 9, 2007. In part, that report “revealed substantial evidence of harassment, isolation, and ostracism against Sgt. Matthews. Significant evidence indicates that Sgt. Matthews has suffered personally and professionally, because of his cooperation with this office and the NYSP.” It further stated, that “[e]vidence indicates that claims of isolation and ostracism by Sgt. Matthews appear to have been unaddressed, unchecked and uncorrected by CSP management ․” The report concluded “that personnel actions taken by the [CSP] constituted retaliation for Sgt. Matthew's whistleblower activities in violation of Conn. Gen.Stat. § 4–61dd.”
In May 2007, the plaintiff filed a lawsuit in federal court against some of the department management mentioned in the complaint.3 The lawsuit alleged retaliation against the plaintiff for exercising his rights under the United States and Connecticut constitutions to speak out on matters of public concern and to petition the government for the redress of grievances and arose out of the same factual background as in the present matter.4
In October 2007, the plaintiff took both the oral and written portions of the CSP Master Sergeant/Lieutenant exam. Danaher appointed a member to the oral panel who had worked with the plaintiff in internal affairs and who participated in making an internal affairs complaint against the plaintiff during the NYSP investigation and was “furious” with the plaintiff for becoming a whistleblower. After the written portion of the exam, the plaintiff was in the top ten. Following the oral portion, in which the plaintiff scored all zeros from the members of the oral panel, the plaintiff was fourth from the bottom.
In November 2007, there was a series of exchanges between Danaher, the plaintiff's former counsel and the attorney general's office. The attorney general's office wrote Danaher concerning the plaintiff's retaliation complaints. Danaher replied that no specific threats had been shown. Danaher also wrote to the plaintiff that if he refused to report to the Brainard Field office he would be in violation of a direct order. The plaintiff filed a grievance regarding the transfer on November 13, 2007.
In December 2007, in response to the plaintiff's CHRO complaint, Danaher and Davoren accused him of making false claims of retaliation against them. Despite repeated requests to relocate the plaintiff from Brainard Field out of concern for his physical safety, Danaher persisted in directing him to report there. In 2008, Danaher and CSP management removed the plaintiff from a list of sworn department members assigned to earn overtime by working at the State's Emergency Operations Center during state emergencies. On September 25, 2008, the plaintiff withdrew his CHRO claims due to the pending federal lawsuit.
The plaintiff alleges that the above facts amount to a pattern and practice of retaliatory discipline against him for exercising his rights under article first, §§ 3, 4, and 14 of the Connecticut Constitution to speak out on matters of public concern and his right to petition his government for redress of grievance in violation of General Statutes § 31–51q. The discipline has included, but is not limited to, the failure to promote him in his employment, loss of overtime opportunities, failure to assign office space and duties, conducting and/or authorizing unwarranted internal affairs and criminal investigations against him. As a direct and proximate result of the defendant's unlawful actions, the plaintiff further alleges that he has suffered damages including mental anguish, severe emotional distress, humiliation and embarrassment, loss of promotional opportunities and resulting lost income and benefits, lost pension, damage to his personal and professional reputation, loss of enjoyment of life, costs and attorneys fees.
At the hearing on the motion to strike the original complaint (docket entry # 101), the court intimated that while not bound by the federal court opinion on the first amendment claims, it was strongly persuaded by those opinions. Adherence to those opinions would leave the free speech provisions of the Connecticut Constitution as the only source of constitutional protection of the plaintiff's speech. Two cases, however, were pending before our Supreme Court which may have addressed whether the free speech provisions of the Connecticut Constitution were more protective of the speech of public employees than the first amendment. Perez–Dickson v. City of Bridgeport, 304 Conn. 483, 43 A.3d 469 (2012); Schumann v. Dianon Systems, Inc., 304 Conn. 585, 43 A.3d 111 (2012). The parties agreed to await the Supreme Court's resolution of those two matters. In Perez–Dickson, the Court held that the parties had not adequately preserved for appellate review the issue of whether the free speech provisions of the Connecticut Constitution were more protective, and thus declined to address that issue. See Perez–Dickson v. City of Bridgeport, supra, 304 Conn. 498. In Schumann, the Court held that it need not decide whether the first amendment rule announced in Garcetti applied under the state constitution. See Schumann v. Dianon Systems, Inc., supra, 304 Conn. 621 (“Even assuming without deciding, however, that Garcetti does not apply and the Pickering/Connick balancing test remains the sole state constitutional standard for determining whether public employee speech is constitutionally protected, we conclude that the plaintiff's speech and actions in this case were not constitutionally protected under that rule”).
After the Court's ruling in Perez–Dickson and Schumann, on June 8, 2012, the plaintiff amended his complaint to make clear that his cause of action brought under § 31–51q is premised on §§ 3, 4 or 14 of article first of the Connecticut Constitution. The defendant renewed its motion to strike on July 6, 2012, thus placing the issue of whether article first, §§ 3, 4 or 14, of the Connecticut Constitution provides a basis for broader protection of the speech of public employees than the first amendment of the United States Constitution squarely before the court.
The motion has been fully briefed by the parties. A hearing was held on the motion to strike on November 14, 2012. Both parties have since filed supplemental memoranda and notices of supplemental authority.
STANDARD OF REVIEW
“The purpose of a motion to strike is to contest ․ the legal sufficiency of the allegations of any complaint ․ to state a claim upon which relief can be granted.” (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). “[A] motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court.” (Internal quotation marks omitted.) New London County Mutual Ins. Co v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012). “If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action ․ the complaint is not vulnerable to a motion to strike.” Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991); see also Sturm v. Harb Development, LLC, 298 Conn. 124, 130, 2 A.3d 859 (2010) (motion must be denied where provable facts support a cause of action). “[P]leadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010). This court takes “the facts to be those alleged in the complaint ․ and ․ construe[s] the complaint in the manner most favorable to sustaining its legal sufficiency.” (Internal quotation marks omitted.) New London County Mutual Ins. Co. v. Nantes, 303 Conn. 737, 747, 36 A.3d 224 (2012). “Moreover [the court notes] that [w]hat is necessarily implied [in an allegation] need not be expressly alleged.” (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, supra, 252.
The defendant argues that the plaintiff has failed to state a legally sufficient claim for relief under General Statutes § 31–51q. The motion to strike recites five separate grounds that fall into three categories. First, the defendant argues that the plaintiff has failed to allege facts showing that he was exercising rights that are protected by the first amendment of the United States Constitution or equivalent provisions in the Connecticut Constitution. Second, the defendant argues that the plaintiff's alleged facts do not demonstrate that he was “disciplined,” as required by § 31–51q. Third, the defendant argues that the plaintiff has failed to allege that the exercise of his rights, in whatever way they may be protected, did not substantially or materially interfere with his bona fide job performance or with the continued working relationship between the plaintiff and defendant. Because the first issue contains an issue of constitutional law, this court will first address the second and third issues. In re Shanaira C., 297 Conn. 737, 754, 1 A.3d 5 (2010) (“[T]his court has a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case ․” (Internal quotation marks omitted)).
Elements of a § 31–51q Claim
First, the court addresses whether it is necessary for the plaintiff to plead a lack of a substantial and material interference for a claim pursuant to § 31–51q. The defendant cites a long line of Superior Court cases that have held that a § 31–51q plaintiff must plead facts demonstrating that his exercise of constitutional rights did not substantially or materially interfere with his bona fide job performance or working relationship with his employer. The defendant further argues that not only does a plain reading of the statute establish the plaintiff's obligation to plead this element, but that the facts as alleged by the plaintiff raise an inference that there was such an interference, which is fatal to the plaintiff's claim. In response, the plaintiff presents his own interpretation of the statutory language that does not require him to plead it as a necessary element, and argues that the Superior Court cases the defendant cites are based on a holding that lacked any substantive analysis of the purported pleading requirement.
Section 31–51q provides, in relevant part: “Any employer ․ who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or §§ 3, 4 or 14 of article first of the constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee or employer, shall be liable to such employee for damages caused by such discipline or discharge ․” (Emphasis added.) While no appellate authority has weighed in on this issue, the defendant has cited many Superior Court cases that have held that the italicized text creates a third element the plaintiff must plead: the lack of a substantial and material interference. See, e.g., Horton v. Windham Community Memorial Hospital, Superior Court, judicial district of New London, Docket No. CV 4006020 (March 29, 2007, Hurley, J.); Raible v. Essex Yacht Club, Inc., Superior Court, judicial district of New London, Docket No. CV 03 0564783 (August 19, 2003, Hurley, J.) (35 Conn. L. Rptr. 295); Jeffress v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV 96 0386866 (August 28, 1997, Silbert, J.); Sherman v. Sedgwick James of Connecticut, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 326150 (February 10, 1997, Melville, J.); Daley v. Aetna, Superior Court, judicial district of Hartford at New Britain, Docket No. CV 94 0533693 S (August 3, 1994, Sheldon, J.).
As the plaintiff correctly notes, all of the above cases, through citations to each other, rely on Daley v. Aetna. That case in turn relies on Vince v. Worrell, Superior Court, judicial district of Hartford, Docket No. 86 0319386 (July 14, 1992, Schaller, J.). In Vince v. Worrell, although the court did mention a lack of substantial interference as an element of a § 31–51q action, the court stated in a footnote that “the court need not decide whether the plaintiff or the defendant bears the burden of proof on this issue.” As such, there has never been any substantive judicial analysis on the issue of which party bears the burden of proof on this element, and thus the cases the defendant cites are not persuasive.
In the absence of persuasive or binding authority on the subject, this court must perform its own analysis of § 31–51q. “When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature ․ In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language does apply ․ In seeking to determine that meaning, General Statutes § 1–2z directs us first to consider the text of the statute and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” (Citation omitted; internal quotation marks omitted.) Ugrin v. Cheshire, 307 Conn. 364 (2012).
Whether the plaintiff must plead a lack of substantial interference revolves around the impact of the term “provided” in the text of the § 31–51q. The statute clearly lists two elements that entitle a plaintiff to recovery, but then limits the availability of that recovery by stating: “provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer ․” The question is whether that clause is an element that must be pleaded by the plaintiff or a limitation that should be raised as a defense by the defendant.
“Provided” can mean “on the condition that,” “with the understanding,” or simply “if.” See Black's Law Dictionary (9th Ed.2009); Webster's Third New International Dictionary. Unfortunately, these definitions do not provide much guidance in determining which party bears the burden of proving or disproving compliance with the condition of no substantial and material interference. Depending on the circumstances of the issue, a plaintiff or a defendant can be required to raise the issue of a condition precedent to the plaintiff's recovery. For instance, a plaintiff may be required to plead that there are certain conditions that entitle him or her to injunctive relief; see Hartford v. American Arbitration Assn., 174 Conn. 472, 476, 391 A.2d 137 (1978) (“A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law. The allegations and proof are conditions precedent to the granting of an injunction”); but in another instance a defendant must plead that certain conditions, such as waiver, existed that prevent enforcement of a contract. Jo–Ann Stores, Inc. v. Property Operating Co., LLC, 91 Conn.App. 179, 198, 880 A.2d 945 (2005) (waiver as a special defense must be specifically pleaded). Therefore, the mere fact that under common usage “provided” typically sets forth a condition is not determinative of which party must prove or disprove that condition.
Neither any related statutes nor legislative history of § 31–51q give any insight into which party should bear the burden. Some principles of statutory construction do give some meaningful guidance. Clauses introduced by “provided” are fairly called a “proviso” or “exception.” Although they have sometimes been used interchangeably, there are some differences between a proviso and an exception. “As a matter of form, the proviso is usually part of a section establishing a general rule, the proviso being an added clause limiting the operation of the rule and being introduced by the word ‘provided’ or the words ‘provided, however.’ “ (Emphasis added.) Sutherland Statutory Construction § 20:22. “The operative effect of ‘provisos' and ‘exceptions' have sometimes been differentiated. For example, one who asserts a claim based upon a statute must negative, in pleadings and proofs, any exceptions in the provision on which the claim is based, whereas matter in a proviso can be left for the adversary as a defensive matter.” (Emphasis in original.) Id., § 21:11. “Provisos serve the purpose of restricting the operative effect of statutory language to less than what its scope of operation would be otherwise.” Id., § 47:8; see Sanzone v. Board of Police Commissioners, 219 Conn. 179, 189, 592 A.2d 912 (1991). “Exceptions, like provisos, operate to restrict the general applicability of legislative language. Ordinarily a proviso occurs within the body of a section while an exception is drafted as a separate section.” Sutherland Statutory Construction, § 47:11. “[W]e have long held that provisos and exceptions to statutes are to be construed with doubts resolved in favor of the general rule rather than the exception and that those who claim the benefit of an exception under a statute have the burden of proving that they come within the limited class for whose benefit it was established.” (Internal quotation marks omitted.) Gay & Lesbian Law Students Ass'n at University of Connecticut v. Board of Trustees, University of Connecticut, 236 Conn. 453, 474, 673 A.2d 484 (1996); see Yale University v. New Haven, 71 Conn. 316, 337, 42 A. 87 (1899) (stating that a proviso is strictly construed and it must be established by its proponent).
With the above principles in mind, this court finds that “provided” creates a proviso that limits the application of § 31–51q, and that the defendant bears the burden of raising the facts triggering the proviso as a special defense. Constructing “provided” in § 31–51q in this way not only fits with general principles of statutory construction and the limited Connecticut case law, but also comports with a logical operation of the statute and the Practice Book. As the plaintiff correctly notes, if he were required to prove a lack of a substantial and material interference, he would be forced to prove a negative, which is a difficult if not impossible task. See Arrowwood Indemnity Co. v. King, 304 Conn. 179, 203, 39 A.3d 712 (2012) (“the task of proving a negative is an inherently difficult one ․”). This would place the court in the peculiar position of requiring the plaintiff to plead either an extensive and exhaustive recitation of all events that may have involved interference or a boilerplate that would not give significant factual detail and would likely involve a legal conclusion.5 In contrast, by placing the burden on the defendant to plead a substantial and material interference as a special defense, the defendant is able to allege specific facts concerning any incidents of disruption because, as the employer, it has a wider and better knowledge of disruptive events. This creates a situation well suited for an affirmative defense, and, in light of the case law, interpretation of the statutory text and confines of logic, it makes more sense that it is the defendant's burden to prove a substantial and material interference.
The defendant also asserts that the plaintiff's alleged facts actually show that the plaintiff's speech caused a substantial and material interference with the plaintiff's bona fide job performance or the working relationship between the plaintiff and the defendant. This argument, under the favorable review a court gives to the nonmovant in a motion to strike, is unpersuasive. While the defendant cites the fact that various work locations were hostile to the plaintiff and that he could only work out of his vehicle, it ignores the possibility that this potential disruption was caused by the defendant's retaliation, not the plaintiff's speech. The plaintiff alleges that these instances were part of a pattern of activity that constituted “discipline.” The alleged facts could be construed to demonstrate a planned retaliation against the plaintiff for his speech. If a § 31–51q defendant were able to claim that the retaliatory discipline or discharge was itself the substantial or material disruption, as it seems to do here, then a plaintiff would never be able to maintain an action under this statute. Therefore, this court finds that the complaint, construed in favor of the plaintiff, does not necessarily raise the inference that the plaintiff's speech, as a matter of law, caused a substantial and material interference under § 31–51q.
Definition of “Discipline” under § 31–51q
Next, the court addresses whether the plaintiff has sufficiently alleged that he was “disciplined” within the meaning of § 31–51q. The defendant argues that the plaintiff was not discharged, demoted, suspended or issued any official warning. It further argues that the alleged disciplinary activity does not fall within the narrow definition of “discipline” and that there is an absence of objectively disciplinary conduct. The plaintiff, drawing an analogy to 42 U.S.C. § 1983, argues that a combination of seemingly minor incidents can amount to an adverse employment action if they reach a “critical mass.” The defendant argues that an analogy to the federal right of action is improper, and that by taking into account the statutory scheme it is clear that § 31–51q is focused on a narrower range of conduct.
No appellate authority has addressed the precise meaning of “discipline” in § 31–51q. The most exhaustive discussion occurred in the Superior Court case Bombalicki v. Pastore, Superior Court, Docket No. 378772 (May 10, 2000, Blue, J.) (27 Conn. L. Rptr. 183): “The word ‘discipline’ is not statutorily defined ․ It is, consequently, necessary to draw on other sources. Fortunately, several sources are available to illuminate the text: (1) dictionary definitions of the word ‘discipline’; (2) internal clues elsewhere in the statutory text; (3) the legislative history of the statute; and (4) the use of the word ‘discipline’ in analogous Connecticut statutes. After these sources have been considered, the pertinent policy considerations must also be reviewed.
“Webster defines ‘discipline’ as meaning ‘to inflict suffering on or to penalize for the sake of discipline, regularity, order, or rule.’ [Webster's Third New International Dictionary]. The definition in [Black's Law Dictionary] shed[s] somewhat more light on the legal meaning of the term. Black defines ‘discipline’ as ‘[p]unishment intended to correct or instruct, esp. a sanction or penalty imposed after an official finding of misconduct.’ ․ In all of these definitions, ‘discipline’ involves affirmative acts of punishment that (at least while the punishment is being inflicted) leave the recipients in a less happy state than that which they enjoyed before the punishment began. A withholding of a benefit—even a benefit that was due or promised—does not fit this pattern. ‘Discipline’ is an affirmative act of deprivation that diminishes the status or happiness of the recipient rather than a failure to enhance that status or happiness.
“The internal text of [§ 31–51q] contains at least a hint that reinforces the dictionary meaning. An employee cannot be disciplined or discharged on account of certain protected activity, ‘provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee or the employer.’ This qualification plainly refers to the status quo. It does not refer to a new or superior ‘job performance’ or ‘working relationship,’ even one that may be due or promised.
“The legislative history of the statute in question contains a similar hint ․ Representative Richard Tulisano stated that the legislation would protect ‘the rights of individuals, so they do not have to be afraid to express themselves because of fear of job loss.’ ․ This remark plainly envisions ‘discipline’ as an affirmative act of punishment that leaves the employee less well off than he was before.
“The use of word ‘discipline’ in analogous Connecticut statutes must now be considered. The phrase ‘discipline or discharge’ was not newly coined for purposes of [§ 31–51q]. When that statute was enacted in 1983 ․ three other statutes using the same phrase were already on the books. Significantly, however, § 31–51q employed the phrase ‘discipline or discharge’ in a more restrictive way than did those earlier statutes. To put the matter another way, the earlier statutes using the phrase in question were significantly more expansive in their text than § 31–51q. Thus, the first of these statutes, [General Statutes § 2–3a], prohibiting employers from discriminating against candidates for or members of the general assembly, provides that, ‘No employer of twenty-five or more persons shall discriminate against, discipline or discharge any employee because such employee is a candidate.’ (Emphasis added.) Second, [General Statutes § 31–51g(b)(1) ], prohibiting employers from using polygraph examinations, provides that an employer shall not ‘dismiss or discipline in any manner an employee for failing, refusing or declining to submit to or take a polygraph examination.’ (Emphasis added.) Each of these statutory texts was available as a possible model when [§ 31–51q] was enacted in 1983. In fact, § 31–51m had just been enacted in the previous year ․ In spite of the availability of these role models, the legislature chose to use the unadorned phrase, ‘discipline or discharge,’ without the expansive terminology attached to that phrase in the earlier statutes. This history creates a strong inference that the legislature intended § 31–51q to be at least somewhat more restrictive than the analogous statutes then on the books.”
Other cases have adopted the Bombalicki analysis and have held that “discipline” under § 31–51q requires affirmative conduct. In Avedisian v. Quinnipiac University, 387 Fed.Appx. 59, 60–61 (2d Cir.2010) and McIntyre v. Fairfield University, Superior Court, judicial district of Fairfield, Docket No. CV 020391471 (March 3, 2003, Doherty, J.) [34 Conn. L. Rptr. 219], the courts held that failure to give a teacher tenure did not constitute “discipline.” In a case decided before Bombalicki, a court held that police officers were not “disciplined” under § 31–51q when they were transferred to a new assignment. D'Angelo v. McGoldrick, Superior Court, judicial district of Litchfield, Docket No. CV 93 0063904 (August 3, 1995, Pickett, J.), aff'd, 239 Conn. 356, 685 A.2d 319 (1996).
This court agrees with the central tenet of the Bombalicki holding, which is that “discipline” requires an affirmative act by the employer and does not include the withholding of a benefit, even if promised. An omission cannot constitute discipline unless the employer had a duty to act for the employee. And the court also agrees in part that the “discipline” required in § 31–51q likely is more substantial than the “discipline in any manner” or acts that “discriminate against” in §§ 31–51g(b)(1) and 2–3a, as well as other statutes cited by the defendant. The question remains, however, as to precisely what level of affirmative conduct constitutes “discipline” under § 31–51q. The legislative history provides no meaningful guidance. Thus, the matter turns largely on policy considerations.
The court disagrees with the defendant that discipline requires “official” action, and instead agrees with the plaintiff that “discipline” can be a collection of smaller incidents and conduct, as long as that conduct is affirmative in nature. “Section 31–51q creates a cause of action for damages to protect employees from retaliatory action illegally grounded in the employee's exercise of enumerated constitutionally protected rights.” D'Angelo v. McGoldrick, 239 Conn. 356, 360, 685 A.2d 319 (1996). While the defendant correctly points out that this quote is not an endorsement of a particular definition of “discipline,” it is useful in that it characterizes the type of activity with which § 31–51q is concerned. The statute is concerned with retaliatory activity against an employee. Whether an act is retaliatory deals more with the intent of the actor and the proposed effect of the act on the subject of the retaliation. It is entirely possible for an employer, through a series of unofficial acts, perhaps seemingly benign on their own, to seek retaliation. There is no apparent reason to limit such retaliatory conduct to official reprimand or single isolated events. Retaliatory action that is taken through multiple events can be just as, if not more, damaging to an employee and that employee's freedom of expression. As long as those events can be shown to be “affirmative act[s] of deprivation that dimini[sh] the status or happiness of the recipient,” and those acts were performed in response to the plaintiff's speech, then it does not matter whether or not individually those acts might not qualify as “discipline.” Bombalicki v. Pastore, supra, Superior Court, Docket No. 378772.
This definition of “discipline” is reconcilable with the other uses of “discipline” in similar statutes. To “discipline in any manner” or “discriminate against” could involve nonaffirmative conduct. For instance, an employer could “discriminate against” or “discipline in any manner” by omission if it refused to consider an individual for a promotion because of that individual's prior speech. This would be a lower level of conduct that would not be actionable under § 31–51q's more restrictive term, “discipline.” Thus, as the defendant argues, “discipline” would include a narrower scope of activity than the more expansive terms used in related statutes.
Turning to the present case, the plaintiff alleges that he was disciplined when the defendant (1) transferred him to a new position; (2) removed duties from him; (3) issued a performance appraisal that did not reflect his true performance; (4) refused to investigate threats made toward him; (5) designated him as the subject of “bogus” internal and criminal investigations; (6) failed to provide him with a workspace; (7) failed to properly protect him from threats made by members of the state police; (8) caused him to lose overtime opportunities; and (9) denied him supervisory experience and failed to promote the plaintiff to master sergeant or lieutenant; and (10) selected oral examiners who were expected to give the plaintiff a failing grade on the oral portion of Sergeant/Lieutenant examination.
Some of the above acts clearly do not qualify as “discipline” under § 31–51q. The mere failure to promote the plaintiff and give him supervisory experience cannot constitute “discipline” as such conduct is clearly an omission and there is no duty on the employer to promote an employee. The other conduct, when construed in light most favorable to the plaintiff, qualifies as “discipline.” Although in some situations a transfer to a new assignment may not be discipline, where that transfer is to a position that is so objectively undesirable it could be considered a demotion, then such a transfer could be “discipline.” Likewise, a removal of duties is an affirmative act that could be considered a demotion in certain circumstances. The defendant's alleged targeting of the plaintiff in “bogus” investigations also would be a form of retaliatory discipline, assuming the plaintiff could show that the investigations were groundless and caused by the defendant's desire to retaliate against the plaintiff's speech. The selection of examiners who were expected to fail the plaintiff could also be an act of discipline as it was affirmative conduct meant to deprive the plaintiff of a fair chance for a promotion. Finally, although in a strict sense these acts might be an “omission,” the defendant's failure to investigate threats made toward the plaintiff and protect him from those wishing to do him harm could be “discipline” because employers generally are supposed to protect employees from threatening or harassing coworkers. See Regan v. Wesleyan University, Superior Court, judicial district of Middlesex, Docket No. CV 07 5002808 S (September 8, 2008, Bear, J.) (“[A]n employer's liability may be predicated on a failure to investigate complaints of sexual harassment to assess the scope and culprits to which remedial action could be tailored ․”). Again, some of the conduct might not be discipline on its own, but when all the alleged conduct is aggregated and viewed in a light most favorable to the plaintiff, it can be inferred that the defendant was disciplining the plaintiff for speaking out on certain matters. While the plaintiff's desire for a promotion is not protected, § 31–51q was clearly intended to protect an employee from de facto demotion and retaliatory employer actions that diminish the happiness and status of an employee.
Freedom of Speech under the Connecticut Constitution
Finally, the court must discuss whether the plaintiff's speech is protected speech under § 31–51q. This question turns on whether the Connecticut Constitution is more protective of public employees' speech than the first amendment of the federal constitution. The defendant argues that the most current federal analysis of free speech rights should apply to the Connecticut Constitution, which would result in speech that is made pursuant to a public employee's official duties not being protected under the Connecticut Constitution. The plaintiff argues that article first, § 4 of the Connecticut Constitution is significantly broader than the first amendment and therefore the court should decline to apply the narrower federal analysis. More simply put, the defendant urges the court to apply Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), while the plaintiff wants the court to apply the pre-Garcetti analysis found in Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Count, Illinois, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).
“[W]e acknowledge that federal constitutional law sets minimum national standards for individuals rights and that states may afford individuals greater protections under their own state constitutions ․ Although we often look to the United States Supreme Court precedent when construing related provisions in our state constitution, we may determine that the protections afforded to the citizens of this state by our own constitution go beyond those provided by the federal constitution, as that document has been interpreted by the United States Supreme Court.” State v. Linares, 232 Conn. 345, 378–79, 655 A.2d 737 (1995). “To determine whether our state constitution affords greater rights than the federal constitution, we consider the following ‘tools of analysis': (1) the ‘textual’ approach—consideration of the specific words in the constitution; (2) holdings and dicta of [our Supreme] Court and the Appellate Court; (3) federal precedent; (4) the ‘sibling’ approach—examination of other states' decisions; (5) the ‘historical’ approach—including consideration of the historical constitutional setting and the debates of the framers; and (6) economic and sociological, or public policy, considerations ․” Id., 379 (citing State v. Geisler, 222 Conn. 672, 685, 610 A.2d 1225 (1992)). This court will discuss each of the “Geisler factors” in turn.
The first Geisler factor requires this court to compare the relevant language of the Connecticut and United States constitutions. Article first, § 4, of the Connecticut Constitution provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” The first amendment of the United States Constitution provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Under the textual approach, “[e]ffect must be given to every word in our constitution, unless there is some clear reason ․ for not doing so.” Cahill v. Leopold, 141 Conn. 1, 21, 103 A.2d 818, 828 (1954). Article first, § 4, has been interpreted before by the appellate courts. In State v. Linares, 232 Conn. 345, 379, 655 A.2d 737 (1995), the Supreme Court applied the Geisler factors in deciding to “decline to follow the modern, forum based approach currently employed to resolve claims under the first amendment to the United States Constitution that concern abridgement of speech on public property.” While Linares must be carefully applied since it deals with a different type of expressive rights (i.e. expression on public property), the observations contained within that decision are helpful in analyzing the present issue.
The Court in Linares noted that “our state constitution includes in article first, § 4, the word ‘publish,’ a term not found within the United States Constitution. Other courts, construing the term ‘publish’ in the context of similarly worded state constitutions, have found that the term creates expanded communicative rights for the public.” Id., 380. Section 4 also provides “that ‘[e]very citizen may freely speak, write and publish his sentiment on all subjects, being responsible for the abuse of that liberty.’ ․ By contrast, the first amendment does not include language protecting free speech ‘on all subjects.’ ․ Finally, article first, § 14, provides that citizens have a right, inter alia, ‘to apply to those invested with the powers of government, for redress of grievances ․ by petition, address or remonstrance.’ ․ Again, our state constitution offers language, i.e., ‘remonstrance,’ that sets forth free speech rights more emphatically than its federal counterpart.' “ (Emphasis in original.) Id., 381, quoting State v. Linares, 32 Conn.App. 656, 678, 630 A.2d 1340 (Schaller, J., concurring). The court concluded: “These differences warrant an interpretation separate and distinct from that of the first amendment.” (Internal quotation marks omitted.) Id.
The defendant argues, however, that “Garcetti does not divest first amendment protection on the basis of the subject matter or form of the speech, but instead focuses on the role of the speaker.” Consequently, the fact that article first, § 4, provides greater content and form protections is irrelevant. Furthermore, article first, § 4, is consistent with Garcetti in the sense that § 4 only provides that “[e]very citizen may freely speak, write and publish ․” and Garcetti protects speech made “as a citizen.” (Emphasis added.)
While defendant's arguments hold some merit, they do not completely erode the basic principles for which Linares stands. Certainly, the Connecticut Constitution by its language provides broader protections than the first amendment. Article first, § 4, is written from the point of view of the individual citizen. Thus, it reads as an affirmative grant of free speech to the individual, rather than a limitation on the government's right to restrict speech as does the first amendment.6 Cf. State v. Schmid, 84 N.J. 535, 559–60, 423 A.2d 615 (1980), appeal dismissed sub nom., Princeton University v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982) (distinguishing state and federal constitutional free speech provisions because state constitution contained an affirmative guarantee to the individual). For these reasons, Connecticut courts have readily held that the state constitution is more protective of speech than the federal constitution. See State v. Coleman, 96 Conn. 190, 113 A. 385 (1921); Dow v. New Haven Independent, Inc., 41 Conn.Sup. 31, 43–45, 549 A.2d 683 (1988). Furthermore, this court is not certain that the “role” of the speaker is completely distinct from the content and form of speech. As the defendant makes clear, the text of article first, § 4, does not necessarily prohibit application of Garcetti, but the court must balance Garcetti 's potential compatibility with the generally broader freedom of speech found in the Connecticut Constitution.
Holdings and Dicta of Connecticut Courts
Linares provides some instruction under the second Geisler factor as well: “[W]e have recognized that our state constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all our citizens.” State v. Linares, supra, 232 Conn. 382; see State v. Dukes, 209 Conn. 98, 115, 547 A.2d 10 (1988); State v. Coleman, 96 Conn. 190, 113 A. 385 (1921). Importantly, the court stated: “This concern for ‘contemporary effectiveness' would be undermined if we followed federal forum analysis, which affords the most rigorous protection of speech only at ‘traditional’ forums and narrowly defines ‘traditional’ to exclude modern public gathering places often otherwise compatible with public expression.” State v. Linares, supra, 382. The court also noted earlier cases, such as State v. Coleman, where the “court looked beyond the less speech protective approach then followed by the United States Supreme Court in interpreting the federal constitution, and stated that in determining whether [an ordinance] violates the Constitution of Connecticut, we must be guided by our own public policy and our own precedents.” (Internal quotation marks omitted.) State v. Linares, supra, 232 Conn. 381–82.
Interestingly, the court in Linares opted to disregard the forum based approach and apply the more flexible “compatibility test” in Grayned v. Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), which was applied in federal courts before the forum based approach was set forth in Perry Education Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45–46, 103 S.Ct. 948, 954–56, 74 L.Ed.2d 794 (1983). This situation is similar to the current case, where the court is deciding whether to disregard the United States Supreme Court's most recent approach in favor of its earlier approach. While the specific issues may not be identical, they do both involve the ability of the state, whether it be as the government or as an employer, to regulate or restrict speech. And in both instances, as the plaintiff would argue, the dispute revolves around whether to disregard the modern categorical approach (i.e., classifying protections by forum in which speech was made; removing protections of speech depending on whether it was made as a citizen or employee) for the former and more flexible approach that takes more factors into consideration. The fact that the court in Linares chose the more flexible standard supports the notion that Connecticut courts support more flexible standards in determining speech protections than some of the more rigid modern approaches in federal jurisprudence.
In reviewing federal precedent, it is best to start with the cases at the center of the parties' arguments: Pickering, Connick and Garcetti. In Pickering, the United States Supreme Court held that a board of education's firing of a teacher for his letter to a newspaper criticizing the board for their alleged mismanagement of school funds was unconstitutional. Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois, supra, 391 U.S. 574. After a careful analysis, the Court stated that it was a case where: “[A] teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which [did not impede] the teacher's proper performance of his daily duties ․ [nor] interfered with the regular operation of the schools generally.” Id., 572–73. The court noted: “The problem in any case is to arrive at a balance between 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.” Id., 568. After describing how the standard for defamation would apply to the teacher if he were an ordinary citizen, the court stated that “statements made by public officials on matters of public concern must be accorded First Amendment protection despite the fact the statements are directed at their nominal superiors.” Id., 574. This ultimately led the court to hold: “[A]bsent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis of his dismissal from public employment.” Id., 574.
The Supreme Court revisited the issue fifteen years later in Connick. In that case, the Court held that when a district attorney discharged an assistant district attorney for her opposition to a transfer and her creation and distribution of a questionnaire about office morale, policies and employee's attitudes about supervisors, it did not act unconstitutionally. Connick v. Myers, supra, 461 U.S. 154. After revisiting Pickering, its antecedents and its progeny, the Court stated “if [speech] cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary for us to scrutinize the reasons for [the employee's] discharge ․ [O]rdinary dismissals from government services which violate no fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons for the dismissal are alleged to be mistaken or unreasonable.” Id., 146. Clarifying this statement, the Court held “only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.” (Emphasis added.) Id., 147. “Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Id., 147–48.
The Court found that all but one of the topics in the questionnaire were not of public concern. In finding so, the Court specifically mentioned that the attorney did not “seek to bring to light actual or potential wrongdoing or breach of public trust ․” Id., 148. A question concerning official pressure on employees to work in political campaigns did touch on a matter of public concern. Id., 149. In determining whether the employer's actions in response to this question were constitutional, “the state's burden in justifying a particular discharge varies depending upon the nature of the employee's expression.” Id., 150. The court must consider “the government's interest in the effective and efficient fulfillment of its responsibilities to the public.” Id. “[A] stronger showing may be necessary if the employee's speech more substantially involved matters of public concern.” Id., 152. The “manner, time, and place” in which the speech is made also factor into the analysis. Id., 152. And importantly, the “context” of the dispute is important. Id., 153. In Connick, the Court indicated that the fact that the attorney circulated the questionnaire after a dispute over her own transfer was relevant to the Pickering balancing.
One other case, decided four years before Connick, provides a valuable refinement of the Pickering test. In Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), the Supreme Court stated: “This Court's decisions in Pickering, Perry, and Mt. Healthy do not support the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly.” Id., 414. “Neither the [First] Amendment itself nor our decisions indicate that this freedom [of speech] is lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public.” Id., 415–16.
The Pickering–Connick balancing test was largely unchanged for twenty-three years until the Supreme Court once again visited the issue in Garcetti. The facts of Garcetti share some common elements to facts in the present matter. The respondent in that case, Ceballos, was a deputy district attorney who had been asked by a defense lawyer to examine perceived inaccuracies in a search warrant. Garcetti v. Ceballos, supra, 547 U.S. 414. After writing two memoranda and making statements to his supervisor voicing his concerns about the warrant, Ceballos alleged that he was subjected to a series of retaliatory employment actions. Id., 415. Such retaliatory actions included reassignment, transfer to another courthouse and the denial of a promotion. Id., 415. Similar to this case, the employee was supposedly retaliated against for voicing his concerns about alleged governmental misconduct.
The Supreme Court began by acknowledging some of the principles of constitutionally protected employee speech. It is “clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Id., 417. “Pickering and the cases decided in its wake identify two inquiries to guide the interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern ․ If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech ․ If the answer is yes, then the possibility of a First Amendment claim arises ․ A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.” (Citations omitted.) Id., 418. “Government employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services.” Id. But, “[t]he First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens ․ So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” Id., 419. “The Court's decisions ․ have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions.” Id.
Turning to the facts of the case, the Court first rejected, by citing to Givhan, the notion that “all speech within the office is automatically exposed to restriction.” Id., 421. It then considered that while “[t]he [speech] concerned the subject matter of Ceballos' employment ․ this, too, is nondispositive” because public employees many times are “most likely to have informed and definite opinions” about the activities of their office. (Internal quotation marks omitted.) Id. Rather, the Court stated, “[t]he controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy ․ We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. A public employee must “by necessity ․ accept certain limitations on his or her freedom” because “they can express views that contravene governmental policies or impair the proper performance of governmental functions.” (Emphasis added.) Id., 418–19. “Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Id., 421–22.
The Court continued: “Refusing to recognize First Amendment claims based on government employees' work product does not prevent them from participating in public debate ․ This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit.” Id., 422. “Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment and promote the employer's mission ․ If Ceballos' superiors thought his memo was inflammatory or misguided, they had the authority to take proper corrective action.” Id., 422–23. “Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government ․ When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees.” (Emphasis added.) Id., 423–24.
Finally, the Court stated that it had “no occasion to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate,” but it made clear that “[t]he proper inquiry is a practical one ․ [T]he listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes.” Id., 424–25. It also noted that “[e]xposing governmental inefficiency and misconduct is a matter of considerable significance ․ The dictates of sound judgment are reinforced by the powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing ․ These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions.” Id., 425–26.
Before discussing some of the lower court opinions, the court notes that Garcetti is not rigid in all the ways the plaintiff suggests it is. While it does make a categorical distinction—speech made as an employee as opposed to as a citizen—the Court's language indicates flexibility in that determination. Courts are meant to pragmatically determine what an employee's duties are. Also, Garcetti is not, in all respects, the extreme departure from Pickering and Connick that the plaintiff claims it is. While Garcetti certainly adds to and elaborates upon those cases, it does not completely eliminate Pickering and Connick. But, in this court's view, as will be elaborated upon later in this memorandum, Garcetti does erode some fundamental aspects of flexibility and fact-intensive inquiry which Pickering and Connick provide.
The plaintiff points to a federal case that he argues displays the absurd results that can result from applying Garcetti. In Weintraub v. Board of Education, 593 F.3d 196, 203 (2d Cir.2010), cert. denied, 131 S.Ct. 144, 178 L.Ed.2d 344 (2010), the Second Circuit held that a teacher's filing of grievance with his union, which was based on a student the teacher thought should be suspended, was speech made pursuant to his official duties, and thus not protected under the first amendment. After noting that “[t]he Garcetti Court cautioned courts against construing government employee's official duties too narrowly,” and that other circuits had “concluded speech that government employers have not expressly required may still be ‘pursuant to official duties,’ so long as the speech is in furtherance of such duties,” the court stated: “[U]nder the First Amendment, speech can be ‘pursuant to’ a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer. In particular, we conclude that Weintraub's grievance was ‘pursuant to’ his official duties because it was part-and-parcel of his concerns about his ability to properly maintain classroom discipline ․ Weintraub's speech challenging the school administration's decision to not discipline a student in his class was a means to fulfill ․ and undertaken in the course of performing ․ his primary employment responsibility of teaching.” (Citations omitted; emphasis added; internal quotation marks omitted.) Id.
There are two important observations to be made about Weintraub if Garcetti is held to apply to the state constitution. First, the Second Circuit discussed at length the role of the “citizen analogue.” The court noted prior cases, including Garcetti, where courts had recognized that an employee's speech may be protected when “there was a relevant citizen analogue to the employee's speech, because the right to complain both to an elected public official and to an independent state agency is guaranteed to any citizen in a democratic society regardless of his status as a public employee.” Id., 204. With regard to the plaintiff in Weintraub: “The lodging of a union grievance is not a form or channel of discourse available to non-employee citizens, as would be a letter to the editor or a complaint to an elected representative or inspector general.” Id. This statement seems to suggest that the form of the employee's speech can matter a great deal: When the employee speaks through employment-related channels, the speech is more likely to be considered being made “as an employee;” when the employee speaks through channels available to ordinary citizens, the speech is more likely to have been made “as a citizen.” See Boyce v. Andrew, 510 F.3d 1333, 1343–44 (11th Cir.2007); Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008).
Second, the court stated that its decision did not conflict with the result in Givhan v. Western, Line Consolidated School District, supra, 439 U.S. 410. The court distinguished the facts in that case in that “the grievance she aired was not in furtherance of the execution of one of her core duties as an English teacher. Givhan's grievance concerned the general impression that black students might take away from the staffing of non-teaching positions; Weintraub's grievance, in contrast, concerns the administration's refusal to discipline a student who threw books at Weintraub during class.” Id., 203. This distinction indicates the care that must be taken in determining whether speech is made “as a citizen” and is “of public concern.” Both Weintraub and Givhan involve employee grievances about the operations of the employer, but the teacher's grievance in Givhan was protected because it focused more on public perception of the school's operations than how those operations were personally affecting her. In contrast, there was a direct connection between the subject matter of Weintraub's grievance and how it affected his performance as an employee.
The Second Circuit again applied Garcetti in Anemone v. Metropolitan Transportation Authority, 629 F.3d 97 (2d. Cir.2011). In that case, Anemone, an officer in a state agency who was tasked with investigating corruption, ignored the orders of his superiors to cease an investigation. Id., 101–02. The superiors had said they were referring the case to the state inspector general, but Anemone had no confidence in that office's ability to finish the investigation. Id., 102. Anemone disclosed the investigation to the district attorney's office in the hopes that office would contribute to the investigation. Id., 103. In deciding whether the disclosure to the district attorney's office was protected under the first amendment, the court stated: “When a government employee concededly engages in speech pursuant to his official duties, the fact that he persists in such speech after a supervisor has told him to stop does not, without more, transform his speech into protected speech made as a private citizen.” Id., 116. On that basis, the court concluded that the speech was not protected since the employee's speech continued to be “part and parcel of his duties as MTA's Director of Security.” Id., 117. Notably, there was no allegation that Anemone's superiors were in any way connected with the corruption Anemone was investigating.
In Ozols v. Town of Madison, United States District Court, Docket No. 3:11 CV 1324 (D.Conn., August 20, 2012), the court predicted that the Connecticut Supreme Court would decide to not apply Garcetti to § 31–51q claims based on the Connecticut state constitution. In that case, the court stated: “The parties appear to believe that Garcetti should apply to the entirety of section 31–51q, or none of it. I believe it makes more sense analytically to split section 31–51q into the federal constitutional claims and the state constitutional claims, and determine whether Garcetti applies to each provision. The Connecticut Supreme Court signaled in Perez–Dickson that it would also analyze each type of claim separately. In that case, the Court confirmed that Garcetti applies to section 31–51q claims that are based on violations of the First Amendment ․ The Court declined to decide whether Garcetti applies to section 31–51q claims that are based on the state constitution.
“I believe that, were the Connecticut Supreme Court to answer the above question, it would hold that Garcetti does not apply to claims based on the state constitution. The Connecticut Supreme Court has repeatedly held that Connecticut's protection of free speech is broader than the federal government's ․ In Linares, the Court ruled that the state constitution's free speech provision had a greater scope than the federal constitution in part because of its broader language ․ The breadth of the Connecticut Constitution's language suggests that a citizen's speech is protected, even when the speech is about her employment ․
“I also believe the Connecticut Supreme Court may wish to curtail the reach of Garcetti because it has been often criticized. As Justice Souter has noted, there is something strangely arbitrary about a judicial inquiry into when a citizen is acting as a citizen ․ Further, it is questionably sound to deny public employees the right to speak about matters of great public concern ․ By diminishing the protections available to employee-speakers, Garcetti makes employees less secure in their ability to speak out against governmental fraud, corruption, abuse, and waste without facing retribution from their public employers.
“The majority in Garcetti brushed away concerns about protecting employee whistleblowers by noting that other statutes would protect those employees from retaliation. But as the Garcetti dissent predicted, ․ such speech often falls outside the narrow confines of whistleblower statutes.
“Finally, the concerns espoused by the majority in Garcetti are also alleviated by the text of section 31–51q. The majority noted that employers ‘need a significant degree of control over their employees' words and actions,’ and that when employees ‘speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.” (Citations omitted; internal quotation marks omitted.) Id. The reasoning in Ozols aptly summarizes many of the observations about the Connecticut Constitution and the criticisms of Garcetti. While it is not an exhaustive discussion under the Geisler factors, it does provide an example of how this court may refuse to apply Garcetti in the present case.
The fourth Geisler factor requires this court to look at how other “sibling” states with similar constitutional provisions have answered the question currently before the court. While the plaintiff has not provided any cases from sibling states, the defendant has. First, in Kaye v. Board of Trustees of the San Diego County Law Library, 179 Cal.App.4th 48, 59, 101 Cal.Rptr.3d. 456 (2009), the court applied Garcetti to the California Constitution's free speech provision, which provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” Cal. Const., art. 1, § 2. The court noted that “Garcetti does not, as [the plaintiff] suggests, limit rights established by earlier precedents in a manner inconsistent with those precedents. Rather, Garcetti relied upon and applied earlier precedents to address an issue that had never been directly addressed by them ․” Id., 58. Acknowledging the strong dissenting opinions to and academic criticism of Garcetti, the court stated such criticisms are “common occurrences when the Supreme Court decides cases involving important constitutional rights” and are “not a sufficient basis by itself for departing from the Supreme Court's construction, particularly where, as here, the Supreme Court's rationale is not illogical, unpersuasive, or incompatible with its prior precedents.” Id. Finally, the court concluded that “following Garcetti would not overturn established California doctrine affording greater rights.” Id. Although the California Constitution provides broader rights in some areas, the court had “not located any California authorities affording public employees greater protection in this area.” Id., 59.
The South Dakota Supreme Court also chose to apply Garcetti to its constitution's free speech provision. Gilbert v. Flandreau Santee Sioux Tribe, 725 N.W.2d 249, 258 (2006). That provision provides: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” S. Dak. Const., art. 6, § 5. After finding that the plaintiff's speech was unprotected under the first amendment as interpreted by Garcetti, the Court found that there is no “greater protection in Article VI, Section 5 and decline to extend its protection further than the First Amendment of the United States Constitution.” Gilbert v. Flandreau Santee Sioux Tribe, supra, 725 N.W.2d 258. The Court based its holding on the fact that “[t]he majority of states with almost identical language have interpreted their state constitutional free speech provisions as coextensive with their federal counterparts,” and that there was no real authority that the state constitution provided greater free speech provisions than the federal constitution. Id.
In Newell v. Runnels, 407 Md. 578, 626, 967 A.2d 729 (2009), the Maryland Supreme Court applied Garcetti to its free speech provision, which reads: “[E]very citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.” Md. Const., Art. 40. The Court noted that “[t]he protections accorded by Article 40 are generally ‘coextensive’ with the protections accorded by the First Amendment.” Newell v. Runnels, supra, 608. The court then continued to include Garcetti in its analysis of the facts of the case. Id., 626.
Although many states have not specifically addressed the applicability of Garcetti to their states' free speech provisions, many with free speech provisions similar or identical to Connecticut's have held that such provisions are coextensive with the first amendment. Forty-three states have a clause providing a “freedom of speech” tempered by a “responsibility for abuse”; American Bush v. City of South Salt Lake, 140 P.3d 1235, 1247 (Utah 2006); while thirty-three states' free speech provisions contain the language: “all persons may freely speak ․ on all subjects being responsible for the abuse of such right.” State v. Wicklund, 589 N.W.2d 793, 799 (Minn.1999). The majority of these states have held that such provisions are coextensive with the first amendment. See, e.g, Fiesta Mall Venture v. Mecham Recal Committee, 159 Ariz. 371, 767 P.2d 719, 724 (Ariz.Ct.App.1988); Citizens for Ethical Government, Inc. v. Gwinnett Place Assocs, L.P., 260 Ga. 245, 392 S.E.2d 8, 9–10 (1990); People v. DiGuida, 152 Ill.2d 104, 178, 604 N.E.2d 336, 344–45 (1992); State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997); Woodland v. Michigan Citizen's Lobby, 423 Mich. 188, 378 N.W.2d 337, 346–47 (1985); State v. Wickland, supra, 589 N.W.2d 799–801; State v. Felmet, 302 N.C. 173, 273 S.E.2d 708, 712 (N.C.1981); Eastwood Mall Inc. v. Slanco, 68 Ohio St.3d 22, 626 N.E.2d 59, 61 (1994); Charleston Joint Venture v. McPherson, 308 S.C. 145, 417 S.E.2d 544, 548 n.7 (S.Car.1992); South-center Joint Venture v. National Democratic Policy Comm., 113 Wash.2d 413, 780 P.2d 1282, 1291–92 (1989); Jacobs v. Major, 139 Wis. 492, 407 N.W.2d 832, 836–37 (1987).
The cases discussed above weigh heavily in favor of this court applying Garcetti in the present case. At least three states have clearly applied Garcetti to essentially identical free speech provisions. An even greater population of states have held that their state constitutions' free speech rights are coextensive with the first amendment. Although these holdings are not controlling, they do provide some guidance when deciding a new constitutional issue.
The fifth Geisler factor requires this court to examine the historical constitutional setting and the debates of the framers. Both parties raise important points about the context in which article first, § 4, of the Connecticut Constitution was passed. The plaintiff points to case law discussing the historical context that supports a broader interpretation of free speech rights under the Connecticut Constitution. In his concurrence to the Appellate Court opinion State v. Linares, supra, 32 Conn.App. 656, which the Supreme Court ultimately agreed with in many respects, Judge Schaller discussed how “Connecticut's historical experience further bolsters the viability of an independent constitutional analysis of this state's free speech rights. Before the 1818 Connecticut Constitutional convention, civil liberties in Connecticut were in their infancy, particularly freedoms of speech and press ․ These were protected neither by statute nor by a well-articulated set of common law principles ․
“Moreover, in the years immediately preceding our constitution's enactment, Connecticut citizens embraced a philosophy of greater tolerance, moving toward a more culturally diverse society ․ By 1818, it was apparent that the political tide in Connecticut had shifted in the direction of greater tolerance and cultural diversity. Ultimately, these views culminated in the enactment of the Connecticut Constitution. I am convinced, therefore, that our constitution's speech provisions reflect a unique historical experience and a move toward enhanced civil liberties, particularly those liberties designed to foster individuality.
“In sum, from my review of the text and history of the Connecticut Constitution and the case law ․ it is my opinion that the free speech clauses of the Connecticut Constitution warrant an independent analysis and may, in certain cases, provide greater protection than that afforded under the first amendment.” Id., 682–83. Quoting this language, the Supreme Court stated that “[t]his historical background indicates that the framers of our constitution contemplated vibrant public speech, and a minimum of governmental interference ․” State v. Linares, supra, 232 Conn. 386.
Other cases have also noted the “historical underpinnings of free speech under the Connecticut Constitution” and how the “framers were concerned primarily with curbing undue interference from the government.” Id., 384. In Cologne v. Westfarms Associates, 192 Conn. 48, 60–62, 469 A.2d 1201 (1984), the Supreme Court discussed the creation of Connecticut's bill of rights: “The history of the adoption of our Connecticut bill of rights indicates that it was a response to the prevailing political sentiment of that time that the basic liberties of the people should be enshrined in a written constitution to ensure their protection from governmental infringement ․ An opposing view was expressed that such a detailed specification of individual rights was superfluous and tended to abridge them, because all governmental powers not granted by the constitution were reserved to the people.” This led the court to conclude that “the concern which led to the adoption of our Connecticut Declaration of Rights, as well as the bill of rights in our federal constitution, was the protection of individual liberties against infringement by the government.” Id., 61.
The defendant cites two pieces of the legislative history of article first, § 4, of the Connecticut Constitution that it argues support a more limiting interpretation of the rights granted under that section. The first piece is a discussion about the possible removal of the language “being responsible for the abuse of that liberty” from § 4 (then § 6), or even removing all of § 4 as it appeared redundant with § 5 (then § 7). See W. Horton, “Annotated Debates of the 1818 Constitutional Convention,” 65 Connecticut Bar Journal, Special Issue, SI–30–SI–31, 45 (1991). The remarks of Mr. Bristol, who supported the passage of § 4 in its entirety, included the language to effect that “there was a very great distinction between taking away a privilege, and punishing for an abuse of it.” Id. As the Court in Cologne noted, “[t]he remarks of Mr. Bristol may be construed to indicate that he viewed 4 (then 6) as a limitation on 5 (then 7) which would authorize the passage of laws or the application of the common law with respect to defamation or sedition, but which would preclude any prior restraint.” Cologne v. Westfarms Associates, supra, 192 Conn. 63 n.9. This piece of legislative history, therefore, speaks more to the government's inability to restrict speech before it is made than it does to the type of speech the government may restrict. It is indicative, however, of the awareness of the framers that while persons are free to speak whatever they wish, in certain situations they may be subject to repercussions for their speech.
The second piece of legislative history the defendant references furthers that same point. In that same constitutional convention, “[a] broader proposal which prohibited the molestation of any person for his opinions on any subject whatsoever was considered at the convention but rejected.” Id. As the Supreme Court has previously observed, “[t]he idea of immunity from molestation for the harmful use of opinion was perhaps not undreamed of in the convention of 1818, but it certainly was held to be inconsistent with true freedom. It may be significant of the views of the framers of our constitution that a section of article 1 contained in its first draft, which prohibited the molestation of any person for his opinions on any subject whatever, was under consideration of the convention during most of its session, and finally rejected without dissent.” State v. McKee, 73 Conn. 18, 29, 46 A. 409 (1900). It is indeed significant. The refusal of the provision further reinforces the idea that the framers intended for speakers to be responsible for their speech, and that they would be subject to restriction in certain situations.
The historical approach lends support to both parties' positions. On the one hand, the Connecticut Constitution was drafted in an atmosphere of great tolerance and envisioned a society with vibrant public speech and a “minimum of governmental interference.” On the other hand, the framers did not expect an absence of any governmental interference or restriction. None of the evidence, however, directly addresses what type of speech made by a public employee may be restricted, largely because at the time the Connecticut Constitution was drafted the common law did not recognize any free speech rights for public employees. See, e.g., Wiegman v. Updegraff, 344 U.S. 183, 192, 73 S.Ct. 215, 97 L.Ed. 216 (1952) (representing an early departure from the pre-existing view that, as Justice Oliver Wendell Holmes famously stated: “[P]etitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policemen”). But, because the Connecticut Constitution is “an instrument of progress,” and it is “intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all citizens,” this court must keep in mind the broader characteristics of § 4 in determining the narrower issue at stake. State v. Dukes, supra, 209 Conn. 115.
The final Geisler factor requires this court to review economic, sociological and public policy considerations. Many of these considerations have been mentioned in the above factors, but it is worthwhile to summarize some of them here. The various policy concerns can be boiled down into three general categories: preserving the efficiency and integrity of governmental operations, protecting freedom of speech and the vibrancy of social discourse and creating certainty and predictability for employers and employees.
The United States Supreme Court discussed the government's interest “in promoting the efficiency of the public services it performs through its employees.” Pickering v. Board of Ed. of Tp. High School Dist. 205, Will County, Illinois, supra, 391 U.S. 568. As noted, a public employee must “by necessity ․ accept certain limitations on his or her freedom” because “they can express views that contravene governmental policies or impair the proper performance of governmental functions.” Garcetti v. Ceballos, supra, 547 U.S. 418–19. It is well documented in the cases cited above that the government has a compelling interest in ensuring that it can operate efficiently and that its employees “promote the employer's mission.” Id., 422–23.
There is an additional layer to this interest, however, beyond simply giving a government employer broad powers to restrict employee speech. Too often those in favor of Garcetti focus on the supervisor's ability to run an office as it sees fit and ignore the strong interest in ensuring “the proper performance of governmental functions.” This proper performance implies an interest that all citizens share in making sure that governmental entities are doing what they are supposed to do. All governmental entities and employees are tasked with certain duties they owe to the public from whom they derive their existence. While it is certainly true than an employee's speech may possibly disrupt the performance of those duties, it is also true that the same speech may ensure that the government entity, acting through supervisors and employees, is doing its job with integrity. The Court in Garcetti even indirectly acknowledged this point when it stated that whether an employee's speech could be prohibited was not determined simply by the fact that the speech “concerned the subject matter of [the employee's] employment,” because public employees are “most likely to have informed and definite opinions” about the activities of their office. The value of an employee's speech is at its pinnacle when a government office is bogged down by corruption or selfish activity at the managerial level. A public employee's ability to disrupt government functions is equaled or surpassed by his or her ability to correct and ensure the proper operation of a government entity.
Justice Souter recognized this consideration in his dissent to Garcetti: “Indeed, the very idea of categorically separating the citizen's interest from the employee's interest ignores the fact that the ranks of public service include those who share the poet's ‘object ․ to unite [m]y avocation and my vocation’; these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government employers most want to attract. There is no question that public employees speaking on matters they are obliged to address would generally place a high value on a right to speak, as any responsible citizen would.
“Nor is there any reason to raise the counterintuitive question of whether the public interest in hearing informed employees evaporates when they speak as required on some subject at the core of their jobs. Last Term, we recalled the public value that the Pickering Court perceived in the speech of public employees as a class: ‘Underlying the decision in Pickering is the recognition that public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it.’ San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam ) ․ This is not a whit less true when an employee's job duties require him to speak about such things: when, for example, a public auditor speaks on his discovery of embezzlement of public funds, when a building inspector makes an obligatory report of an attempt to bribe him, or when a law enforcement officer expressly balks at a superior's order to violate constitutional rights he is sworn to protect.” (Emphasis added.) Garcetti v. Ceballos, supra, 547 U.S. 432–33 (Souter, J., dissenting).
Related to this point, and as the plaintiff aptly points out, a narrow application of Garcetti would discourage internal speech and could force employees to bring their complaints and concerns to the newspaper in order to be protected. In one of the district court decisions involving the same facts and parties as this case, Judge Eginton discussed the “oddity” that the same speech of the plaintiff “may [have been] protected when made to one audience but not ․ when made to another.” Matthews v. Lynch, United States District Court, Docket No. 3:07 CV 739 (D.Conn., April 11, 2011); see Cioffi v. Averill Park Central Sch. Dist. Bd. of Educ., 444 F.3d 158 (2d Cir.2006) (holding that speech made in a press conference was protected). The Fifth Circuit has also held that where an employee speaks to persons outside his workplace, “those external communications are ordinarily not made as an employee, but as a citizen.” Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008). While this court believes there is value in the “citizen analogue” when it is used to determine that an employee was speaking as a citizen, it believes that using the absence of a citizen analogue, in and of itself, to hold that an employee's speech was made only as an employee is overly restrictive. Such a holding raises two problems. First, it runs the risk of violating the holding in Givhan, which made it clear that speech made privately between an employee and employer is not necessarily unprotected simply because it is not public and occurs in a medium unavailable to an ordinary citizen. Givhan, supra, 439 U.S. 415–16. Second, it only discourages employees from trying to fix problems from within. Telling employees that see corruption or some other abuse of governmental authority that they must report outside the chain of command to be protected may also lead to unneeded media scrutiny and interference from external actors, which does nothing to further “proper performance of governmental functions.”
Permeating these interests is a need for certainty and predictability. While it is permissible for the court to discuss the abstract theories of speech and government restriction of that speech, at some point a public employee will need to know whether he or she can be “held responsible” for his or her speech in the workplace, and an employer will need to know whether it will be liable for trying to restrict an employee's speech. While the Garcetti test might be commendable for its simplicity, certainty and predictability do not necessarily override the greater constitutional interests at stake. The greatest concern is arriving at the right result. But in arriving at that result, courts must strive to give meaningful holdings that can provide guidance to employees and employers.
Weighing the Factors
The foregoing six factors mitigate in favor of a finding that article first, § 4 of the Connecticut Constitution is broader than the first amendment as interpreted by Garcetti. Many of the basic tenets of Garcetti appear to be in accord with Pickering and Connick. But, certain aspects of Garcetti, especially in how they have been interpreted by the lower courts, are not entirely compatible with the Connecticut Constitution's broad expressive rights, nor are they reflective of the Connecticut Supreme Court's preference for flexible tests in examining expressive rights. In short, this court believes that the broader expressive freedoms in the Connecticut Constitution warrant a more flexible interpretation of Garcetti than has been afforded by the lower courts.
The six Geisler factors demonstrate that the Connecticut Constitution does indeed grant some broader expressive rights than the first amendment. The Connecticut Constitution was created with the goal of safeguarding a tolerant and dynamic society with broad freedoms of speech. Those rights are tempered, however, in some of the same ways as under the first amendment. Only speech made as a “citizen” is protected, and the government may restrict certain instances of that speech in some circumstances. While limiting protection to speech made as a “citizen” may appear to support application of Garcetti, the answer is not so straightforward. Connecticut Supreme Court precedent demonstrates that in constitutional issues analogous to the one before this court it is preferable to apply a more flexible test that takes more factors into consideration. The Court in Linares specifically rejected a more categorical approach in favor of a test that performs a more fact-intensive analysis.
The relevant policy considerations also strongly support applying a more flexible test. In light of every citizen's interest in the proper performance of government functions, it is difficult, if not impossible, to draw a clear line between a person's actions as a citizen and as a public employee. Indeed, a public employee has an interest as a citizen that exists concurrently and many times coextensively with their duty as an employee. It is especially troublesome to try and divide the citizen's interest and employee's duty when the individuals managing a government office are in dereliction of their duty to the public or otherwise engaging in misconduct and the employee's speech is aimed at such misconduct. In such a scenario, removing an employee's expressive freedoms would allow such dereliction to continue under the false pretense of the government employer exercising control over employee speech to efficiently provide public services. In other words, adhering to rule would undermine the very purpose of the rule.
These points are underscored by a closer examination of Connick, Givhan and Garcetti. In Connick, the court stated: “we hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.” (Emphasis added.) Connick, supra, 461 U.S. 147. Importantly, the exclusion of protection for speech made “not as a citizen upon matters of public concern” is not the same as an exclusion of protection for speech made as an employee. The former is identifying the two elements of speech that need to be present for the possibility of constitutional protection: (1) the content of the speech addresses a matter of public concern; and (2) an interest as a citizen motivates the speech. The latter is a categorical exclusion based on the role of the speaker. Likewise, the phrase removing protection “only ․ when ․ a public employee ․ speaks as an employee upon matters only of personal interest” is not the same as a blanket exclusion of protection for speech made as an employee. The former is identifying the two elements that will be present if speech does not have any possibility for protection: (1) the content of the speech addresses a matter only of personal interest; and (2) an interest as an employee motivates the speech. The latter again is simply a categorical exclusion based on the role of the speaker.
Furthermore, Connick illustrates that the inquiry into whether speech is motivated more by an individual's interest as a citizen or as an employee is part and parcel of the inquiry into whether the speech is on a matter of public concern: “Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement ․ We view the questions pertaining to the confidence and trust that Myers' coworkers possess in various supervisors, the level of office morale, and the need for a grievance committee as mere extensions of Myers' dispute over her transfer to another section of the criminal court ․ [W]e do not believe these questions are of public import ․ Myers did not seek to inform the public that the District Attorney's office was not discharging its governmental responsibilities ․ Nor did Myers seek to bring to light actual or potential wrongdoing or breach of public trust on the part of Connick and others ․ While discipline and morale in the workplace are related to an agency's efficient performance of its duties, the focus of Myers' questions is not to evaluate the performance of the office but rather to gather ammunition for another round of controversy with her superiors.” (Emphasis added.) Id., 147–48. The italicized language clearly demonstrates that the Court was analyzing, in the context of whether the speech was on a matter of public concern, whether the speech was motivated more by Myers' concern as a citizen or her personal interests as an employee.
The Garcetti decision, while providing useful guidance in many respects, disrupts the balanced approach in Connick by separating out from the “matter of a public concern” inquiry the discussion of whether the employee was acting pursuant its duties as an employee or as a citizen. This separation is problematic in light of Connick. First, it minimizes the importance of the requirement that the content of the speech be a matter “only of personal interest” for it to be constitutionally unprotected, and instead tends to lead courts into focusing entirely on the “employment duties” of the employee, rather than on the individual's interest as a citizen and his or her employee duties in direct relation to the content of the speech. Second, and more importantly, it confuses the first quoted phrase from Connick by seemingly failing to recognize the amount of overlap there can be between an individual's duties as an employee and his or her interest as a citizen, especially, and perhaps uniquely, when in the realm of public employment. By creating an independent requirement that the speaker not be speaking “as an employee,” divorced from the discussion of whether the employee was speaking on a matter of public concern, the Garcetti threshold inquiry leads courts down the unreliable path of trying to pin down the scope of an employee's duties.
The rigid categorization that Garcetti seems to create, and that appears to have been adopted by the lower courts applying Garcetti; see Weintraub v. Board of Education of City School District, supra, 593 F. 196; may also come into conflict with Givhan. Givhan specifically allows for protection of speech that is made privately between an employer and an employee where the speech involves a matter of public concern. Yet courts applying Garcetti frequently seem to use the private nature of certain speech as a reason to not afford constitutional protection to that speech. Focusing on the lack of a citizen analogue as a reason to not afford protection creates a perverse incentive for an employee to not first discuss a matter of public concern with his or her employer who may be in the best position to address whatever problem is at the heart of the matter. This again is another ill effect of turning the inquiry of whether speech was made “pursuant to” and employment duty into a threshold inquiry.
The better approach, in this court's view, is to adhere to the test articulated in Pickering and Connick, as applied before Garcetti, so that the inquiry into whether the speech was made “as an employee” or “as a citizen” is subordinate to the larger issues of whether the speech addresses a matter of public concern and whether the employer has a legitimate interest in restricting the speech. Under this approach, a court will first determine whether an employee's speech is on a matter of public concern, then determine whether the interests of the employee in making the speech outweigh the interests of the employer in operating efficiently and effectively. Involved in both inquiries is an examination of the speaker's role, and the relationship between the speech and the speaker's employment duties. In many cases, the more closely related the speech is to the speaker's employment duties, the more likely it will either not be a matter of public concern or the employer will have a legitimate reason for restricting the speech. But, this approach affords protection that Garcetti would not in a situation where the speaker is speaking pursuant to an employment duty but: (1) the speaker has a concurrent interest as a citizen in making the speech; (2) the speech addresses a matter of public concern; and (3) the employer has no legitimate reason for restricting the speech. Pickering and Connick provide a more flexible and fact-intensive analysis than does the Garcetti approach, especially when taking into consideration how woodenly Garcetti has been construed.
Applying Pickering–Connick to the Plaintiff's Complaint
Having focused the inquiry on the Pickering–Connick balancing test in light of Garcetti, the court must now apply it. “[I]n evaluating the constitutionality of government restrictions on an employee's speech, a court must arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [s]tate, as an employer, in promoting the efficiency of the public services it performs”; Schumann v. Dianon Systems, Inc., supra, 304 Conn. 622; see Pickering, supra, 391 U.S. 568; being mindful of course that “if a government employee's speech cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary ․ to scrutinize the reasons for [his or] her discharge ․ [I]f an employee's speech addresses matters of exclusively private concern, the government interest in latitude [to manage] their office, without intrusive oversight by the judiciary ․ would outweigh the [constitutional] interests in the speech, absent the most unusual circumstances.” Schumann, supra, 623; see Connick, supra, 461 U.S. 147.
The plaintiff's speech, as alleged, implicates an important matter of public concern. “[I]t is within the province of the trial court to determine, as a matter of law, which topics are considered to be of public concern. The resolution of whether an employee's statements address such a topic is, however, within the province of the jury, to be determined by looking to the content, form and context of the particular statements in question.” Daley v. Aetna Life & Casualty Co., 249 Conn. 766, 782, 734 A.2d 112 (1999). “Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of [the speech], as revealed by the whole record ․ An employee's speech addresses a matter of public concern when the speech can be fairly considered as relating to any matter of political social, or other concern to the community ․” Schumann v. Dianon Systems, Inc., supra, 304 Conn. 623 (quoting DiMartino v. Richens, 263 Conn. 639, 666–67, 822 A.2d 205 (2003); see Connick, supra, 461 U.S. 152–53.
The plaintiff's communications to the attorney general's office, auditors of public accounts and NYSP allegedly concerned widespread practices of corruption and misconduct within the CSP. Such a “breach of public trust” is commonly considered a topic of public concern. Connick v. Myers, 461 Conn. 148. Every citizen has an interest in the police obeying the rules of law they are commissioned to enforce, and any speech that addresses such widespread abuses of authority would surely be of interest to the public. See Schnabel v. Tyler, 230 Conn. 735, 756, 646 A.2d 152 (1994); see also Cahill v. O'Donnell, 7 F.Sup.2d 341, 349 (S.D.N.Y.1998). Criticism of the government, especially when it is aimed at improving the government or remedying its abuses, is the type of speech that is most fundamentally deserving of protection under the Connecticut Constitution. The plaintiff's statements to these three agencies concerning police corruption and misconduct are on topics of unquestionable public concern. And, if speech is of public concern, then the plaintiff's complaints of retaliation for that speech, which were made to various agencies including the CHRO, his union, the attorney general's office and the NYSP, are also considered matters of public concern. See Konits v. Valley Stream Central High School District, 394 F.3d 12, 124 (2d Cir.2005); Cobb v. Pozzi, 363 F.3d 89, 105–06 (2d Cir.2003).
Also, the speech allegedly had little to do with the plaintiff's personal interest. At the outset, the court notes that it is not permitted to find as a matter of law on a motion to strike that the plaintiff's motivation for the speech was made for purely personal reasons. Cotto v. United Technologies Corp., 251 Conn. 1, 47, 738 A.2d 623 (1994) (“Because a plaintiff's motivation necessarily involves a question of fact to be resolved by a jury ․ it should not be concluded as a matter of law that the motivation was purely personal.” (Citations omitted.)). But, even if it were permitted, there are several reasons that compel a conclusion that the plaintiff's motivation was not “purely personal.”
This is not a case where an employee was complaining about some conduct that was affecting his personal satisfaction with his job, or even his ability to carry out a specific task. Instead, the plaintiff was speaking out about conduct that undermined the basic responsibility that his office owed to the public. Based on the allegations of the complaint, the plaintiff's attempts to speak out were intended to remedy what he viewed to be a pervasive problem within the state police. Viewing the allegations of the complaint broadly, as the court is required to do on a motion to strike, whatever incidental benefit the plaintiff may have personally received from such speech was not the goal of making the speech.
The conclusion that the speech was on a matter of public concern and may be interpreted to be motivated by the plaintiff's interest as a citizen is bolstered by the fact that it was made through a medium available to any citizen. Any citizen aware of such misconduct may have reported it to the same three offices as did the plaintiff. The fact that the subject of the speech concerned information gleaned from the plaintiff's employment does not allow the employer to restrict it any more than a school could discipline a teacher for writing an article about how educational resources were being improperly allocated. Pickering, supra, 391 U.S. 572. Although the speech may have been protected even if it did not occur in a “citizen analogue”; Givhan, supra, 439 U.S. 415–16; the existence of such an analogue supports the notion that the plaintiff was speaking out in the manner of any citizen.
The allegations of the complaint compel the further conclusion that the defendant employer had no legitimate interest in restricting the plaintiff's speech. As has been repeatedly noted, under Pickering and its progeny, including Garcetti, the rationale for allowing a government employer to restrict its employee's speech is to prevent the speech from impairing the efficiency of the public function the employer provides. As previously noted, here, the defendant's interest was arguably to hide abuses and misconduct that were in contravention of its mission. Therefore, the plaintiff's speech, which sought to disclose and correct abuse and misconduct, could not have undermined the efficiency of the CSP. The defendant simply had no reason to restrict the plaintiff's speech worthy of stripping away its constitutional protection. The plaintiff's speech goes far beyond mere disagreement about how to properly execute CSP's mission, but rather addresses a complete failure within the management structure to pursue its proper mission and fulfill its duty to the public.
It is important to emphasize that the above conclusions are made in light of the unique facts alleged in the complaint. The alleged misconduct extended throughout the ranks of the CSP and involved those who were apparently unwilling to appropriately respond to it. As alleged, this misconduct was verified by an independent investigation.7 It is not a scenario where a law enforcement officer was unhappy with his superiors' refusal to pursue an investigation into an individual or small groups of individuals and the officer subsequently chose to break chain of command. Rather, the allegations reflect the circumstances of an officer faced with misconduct that included his superiors. If the plaintiff had been casting baseless aspersions about state police personnel, then the defendant would likely have had a legitimate reason for restricting that speech. That is not, however, the situation alleged in the plaintiff's complaint.
Applying the Pickering–Connick balancing test to the facts alleged in the complaint, construed in a manner most favorable to the plaintiff, the plaintiff has alleged facts sufficient to show that his speech warrants protection under article first, § 4, of the Connecticut Constitution.
Accordingly, for all the foregoing reasons, the motion to strike is hereby denied.
FN1. The Department of Public Safety is now known as the Department of Emergency Services and Public Protection. See General Statutes § 29–7; Public Acts 2011 No. 11–51, § 134(a).. FN1. The Department of Public Safety is now known as the Department of Emergency Services and Public Protection. See General Statutes § 29–7; Public Acts 2011 No. 11–51, § 134(a).
FN2. The department management as defined in the amended complaint includes Commissioner Leonard C. Boyle, Colonel Edward Lynch, Major Christopher Arciero, former Lieutenant William Podgorski, Colonel Thomas Davoren and Commissioner John Danaher III. Arciero and Podgorski were subsequently promoted to Lieutenant Colonel and Major, respectively. Danaher succeeded Boyle as commissioner.. FN2. The department management as defined in the amended complaint includes Commissioner Leonard C. Boyle, Colonel Edward Lynch, Major Christopher Arciero, former Lieutenant William Podgorski, Colonel Thomas Davoren and Commissioner John Danaher III. Arciero and Podgorski were subsequently promoted to Lieutenant Colonel and Major, respectively. Danaher succeeded Boyle as commissioner.
FN3. The May 2007 lawsuit is the first lawsuit discussed in footnote 4 of this decision: Matthews v. Lynch, United States District Court, Docket No. 3:07CV739 (D.Conn., April 11, 2011).. FN3. The May 2007 lawsuit is the first lawsuit discussed in footnote 4 of this decision: Matthews v. Lynch, United States District Court, Docket No. 3:07CV739 (D.Conn., April 11, 2011).
FN4. There have been two related lawsuits in the federal court. In the first federal lawsuit, commenced on May 9, 2007, the plaintiff alleged violation of his first amendment rights by several members of the department management, other than Boyle. That lawsuit was dismissed pursuant to the United States Supreme Court decision in Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 68 (2006). See Matthews v. Lynch, United States District Court, Docket No. 3:07CV739 (D.Conn., April 11, 2011), aff'd, Matthews v. Lynch, United States Court of Appeals, Docket No. 11 1734, 483 Fed.Appx. 624 (2nd Cir., May 24, 2012) (the plaintiff's reporting of misconduct to outside agencies was made pursuant to his job duties, and therefore not protected by the first amendment of the United States Constitution).Second, on February 4, 2010, the plaintiff sued the department and Boyle in the Connecticut Superior Court. The plaintiff alleged retaliation for exercising his rights to free speech under both the state (as to the department) and federal constitutions (as to Boyle). The lawsuit was removed to federal court upon the motion of the defendants. It was then dismissed as to Boyle and the court declined to exercise supplemental jurisdiction against the department. See Matthews v. Connecticut, Dept. of Public Safety, United States District Court, Docket No. 3:10CV325 (D.Conn., October 8, 2010). The plaintiff's motion for reconsideration was denied. See Matthews v. Connecticut Dept. of Public Safety, Docket No. 3:10–CV–325–MRK (D.Conn. January 26, 2011). Thereafter, the plaintiff filed the present state claim against the department.. FN4. There have been two related lawsuits in the federal court. In the first federal lawsuit, commenced on May 9, 2007, the plaintiff alleged violation of his first amendment rights by several members of the department management, other than Boyle. That lawsuit was dismissed pursuant to the United States Supreme Court decision in Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 68 (2006). See Matthews v. Lynch, United States District Court, Docket No. 3:07CV739 (D.Conn., April 11, 2011), aff'd, Matthews v. Lynch, United States Court of Appeals, Docket No. 11 1734, 483 Fed.Appx. 624 (2nd Cir., May 24, 2012) (the plaintiff's reporting of misconduct to outside agencies was made pursuant to his job duties, and therefore not protected by the first amendment of the United States Constitution).Second, on February 4, 2010, the plaintiff sued the department and Boyle in the Connecticut Superior Court. The plaintiff alleged retaliation for exercising his rights to free speech under both the state (as to the department) and federal constitutions (as to Boyle). The lawsuit was removed to federal court upon the motion of the defendants. It was then dismissed as to Boyle and the court declined to exercise supplemental jurisdiction against the department. See Matthews v. Connecticut, Dept. of Public Safety, United States District Court, Docket No. 3:10CV325 (D.Conn., October 8, 2010). The plaintiff's motion for reconsideration was denied. See Matthews v. Connecticut Dept. of Public Safety, Docket No. 3:10–CV–325–MRK (D.Conn. January 26, 2011). Thereafter, the plaintiff filed the present state claim against the department.
FN5. For instance, any plaintiff could plead: “The plaintiff's speech did not interfere with the operations of the workplace and did not impair the plaintiff's job performance or working relationship with the employer.” Not only would such an allegation not provide any real facts, but it would also likely be a legal conclusion. The only other option would be for the plaintiff to essentially plead every fact concerning the employment to demonstrate that no interference in fact occurred. Such a requirement would be an unfair burden for the plaintiff, especially when a more practical alternative, construing the interference element as an affirmative defense, is readily available.. FN5. For instance, any plaintiff could plead: “The plaintiff's speech did not interfere with the operations of the workplace and did not impair the plaintiff's job performance or working relationship with the employer.” Not only would such an allegation not provide any real facts, but it would also likely be a legal conclusion. The only other option would be for the plaintiff to essentially plead every fact concerning the employment to demonstrate that no interference in fact occurred. Such a requirement would be an unfair burden for the plaintiff, especially when a more practical alternative, construing the interference element as an affirmative defense, is readily available.
FN6. The first amendment is actually closer in language to article first, § 5, of the Connecticut Constitution, which provides: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press.” Having no true analogue in the federal constitution, it makes sense that § 4 would be the source of greater rights than the first amendment.. FN6. The first amendment is actually closer in language to article first, § 5, of the Connecticut Constitution, which provides: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press.” Having no true analogue in the federal constitution, it makes sense that § 4 would be the source of greater rights than the first amendment.
FN7. Specifically, the court notes that the complaint not only alleges pervasive corruption and misconduct, but that the NYSP, an independent agency outside the state, investigated and corroborated his claims. The “systemic failures” uncovered during the investigation created serious repercussions for many individuals within the department.. FN7. Specifically, the court notes that the complaint not only alleges pervasive corruption and misconduct, but that the NYSP, an independent agency outside the state, investigated and corroborated his claims. The “systemic failures” uncovered during the investigation created serious repercussions for many individuals within the department.
Peck, A. Susan, J.