United States: Public Employers Gain Measure of Protection for Employment Decisions Based on Statements Made as Part of Job Duties

Last Updated: July 4 2006
Article by Greg Coulter and Michael W. Davey

The United States Supreme Court's decision in Garcetti, et al. v. Ceballos (Case No. 04-473, May 30, 2006) offers some protection to public employers regarding employment decisions based on statements made as part of an employee's official duties. In a 5-4 decision, the Court held that statements made in the course of an employee's performance of duties do not constitute protected speech, and employees can be subjected to discipline for such statements.

The Facts

Richard Ceballos is a deputy district attorney for Los Angeles County. In 2000, a defense attorney contacted Ceballos about some alleged inaccuracies in an affidavit used to obtain an important search warrant. Ceballos investigated the allegation and determined that the affidavit contained misrepresentations. Ceballos presented his findings to his superiors in memoranda. A meeting also was held concerning the memos. Despite Ceballos' misgivings, his supervisors decided to go ahead with the prosecution. Ceballos later testified at a hearing concerning the validity of the warrant. The warrant was upheld by the trial court.

Ceballos was subsequently transferred from his calendar deputy position to a trial deputy position, transferred to another courthouse and denied a promotion. Ceballos filed a grievance, alleging that the employment actions were made in retaliation for his memos. The grievance was denied on the grounds that Ceballos had not suffered any retaliation. Ceballos then filed a lawsuit in U.S. District Court, asserting a claim under Rev. Stat. §1979, 42 U.S.C. §1983. Ceballos alleged that his employer had retaliated against him for his memoranda, thereby violating the First and Fourteenth Amendments to the U.S. Constitution.

The Los Angeles County District Attorney argued that the employment actions taken were made for legitimate reasons, including staffing needs, and that, regardless of the intent of their actions, Ceballos' statements were not protected speech under the First Amendment. The employer moved for summary judgment, which was granted. The District Court held that because Ceballos had written the memoranda as part of his employment duties, he was not entitled to First Amendment protection. In the alternative, the court held that even if Ceballos' speech was protected, the employer had a qualified immunity because the rights asserted by Ceballos were not clearly established.

The Court of Appeals for the Ninth Circuit reversed, holding that Ceballos' memoranda concerning supposed wrongdoing constituted speech protected by the First Amendment. The Ninth Circuit looked to the U.S. Supreme Court's decisions in Pickering v. Bd. of Educ., 391 U.S. 563 (1968), and Connick v. Myers, 461 U.S. 138 (1983), for guidance, holding that, based on the earlier cases, the issue hinges on whether the statements made by Ceballos were made "as a citizen upon matters of a public concern." The Ninth Circuit found that his statements had been made as a citizen upon matters of a public concern, and rejected circuit precedent that a public employee's statements are not protected under the First Amendment when they are made in connection with the employee's job responsibilities. The Ninth Circuit also balanced Ceballos' interest in free speech against the interests of his employer and found that the balance fell in favor of Ceballos because the District Attorney failed to show that his statements had had any disruptive effect on the office's operations. The Ninth Circuit also found that Ceballos' rights under the First Amendment were clearly established and his employer's actions were not objectively reasonable. The matter was then appealed to the U.S. Supreme Court. Arguments were heard on October 12, 2005, and again on March 21, 2006, after the retirement of Justice O'Connor and the appointment of Justice Alito.

The Court's Ruling

Justice Kennedy delivered the Court's opinion. The question presented was whether the First Amendment may protect a public employee from discipline based on statements made as part of the employee's official duties. The Court held that "[w]hen public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." The Court also determined that, "while the First Amendment invests public employees with certain rights, it does not empower them to 'constitutionalize the employee grievance procedure.'"

The Court found that while employees have the right to participate in public discourse, the protection of free speech does not allow them to perform their duties however they see fit. Public employers must be afforded "sufficient discretion to manage their operations." Ceballos, as a deputy district attorney, was not acting as a private citizen when he conducted his professional duties. His memoranda concerning the warrant was not written as a citizen, but in conjunction with his duty to evaluate the proper disposition of a pending criminal matter. His employer made its employment decisions based on his job performance. The Court maintained that there was no support in its precedent for the displacement of managerial discretion. The Court further held that, although an employee's right to speak freely about matters of public concern requires a delicate balance of the competing interests of the speech and its consequences, that situation was not present in Ceballos. In this case, the employee was simply performing his job duties, and his speech and his employer's subsequent reaction were not to be afforded such scrutiny.

The Court distinguished the facts in Ceballos from those presented in Pickering, a case on which the Ninth Circuit relied. The Court noted that, in Pickering, the employee, a teacher, was disciplined for a letter to a newspaper, something that was not within the duties of a teacher. In that case, the Court held that there was no connection between the teacher's speech and the performance of duties and, thus, the school district's interest in limiting the teacher's contribution to a public debate was not substantially greater than its interest in limiting the same type of contribution from the general public. Thus, the speech was afforded protection. In contrast, Ceballos' statements were made entirely within the performance of his duties and were thus properly subject to his supervisor's review and discipline.

Justice Souter issued the lead dissent. Justice Souter acknowledged that employers have a substantial interest in maintaining their policies and procedures and evaluating their employees by their performance, including their speech. But the Justice warned that the private and public interest in avoiding and curtailing official wrongdoing can outweigh the public employer's right to effectuate its policies and procedures, and public employees who speak out on such matters are entitled to the protection of the First Amendment.

Justice Souter also pointed out that the Court's decision failed to clarify the demarcation point at which speech should be protected. He maintained that the Pickering test, balancing individual interests in free speech and the employer's interests in efficient operations, should be the one used by the courts in making determinations as to whether or not speech should be protected. Souter warned that the Court's decision created uncertainties for employees who would now be forced to rely on the inconsistent protection of whistleblower laws for the protection of their speech.

Also in dissent, Justice Stevens warned that the answer to the question of whether the First Amendment protects a government employee from discipline for speech made in the performance of official duties is sometimes, not never. While acknowledging that an employer must be able to take disciplinary action where an employee's words are "inflammatory or misguided," Justice Stevens pointed out there are certainly situations in which a public employee's speech should be protected, as when it is speech that is unwelcome only because the supervisor wishes that its subject matter not be brought to light.

Analysis of the Court's Ruling

The Supreme Court's decision in Ceballos provides public employers with a modicum of protection with respect to employment decisions based in part or in whole on statements of employees made in the performance of the employees' official duties. However, that protection should be not be viewed as denying employees any right to voice concerns within their employment.

In its ruling, the Court established that although public employees are afforded protection when acting as private citizens, their speech as government workers is wholly and properly subject to supervisory review and discipline. Ceballos allows public employers to feel more secure in making employment and disciplinary decisions based on employee statements made during the performance of official duties. Although the question remains as to whether an employee's statement is made in the performance of his or her duties, that issue may be clarified simply by clearly delineating the official duties and functions of employees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions