Thursday, February 2, 2012

The First Amendment and protected speech

MADISON — A fired police officer who filed a federal lawsuit against the town and several police officials in 2009 can proceed with a trial because of a recent U.S. District Court decision to deny the town’s summary judgment to dismiss the case.

Ex-police officer Rebecca Ricciuti filed the suit in 2009, accusing the defendants of violating her First Amendment right to freedom of speech by firing her for calling public attention to a “pervasive pattern of police misconduct.” She, along with another member of the Police Department, developed an overtime matrix that accused the department of wasting $106,000 on overtime payments on senior officers who were looking to “pad their pensions.”

The lawsuit names the town, former Police Department leader Robert Nolan and Commissioners Garry Gyzenis, Emile Geisenheimer, David Smith, Lawrence Moon and Edward Kritzman.

Ricciuti, who was fired just a year-and-a-half after she was hired, is seeking no less than $1.5 million in punitive and compensatory damages. The court memorandum states that the cause of Ricciuti’s termination remains unclear.

During her brief tenure in the department, Ricciuti was the subject of an internal affairs investigation that delved into her “giving out information about what she thought was an abuse of overtime” by higher-ranking officers. She also allegedly discussed matters she believed to be of public concern such as “unlawfully interrogating juveniles, inadequate police training, mismanagement of personnel and mismanagement of evidence.”

The recent court memorandum said “the record is murky as to the reason Ms. Ricciuti’s internal affairs investigation was launched.”

This past summer, the town filed a summary judgment to dismiss the case and Ricciuti’s attorney, Kelly Rommel, filed a motion of opposition to that. About three weeks ago, the court dismissed the three arguments made by the town in a 28-page memorandum.

The town argued that Ricciuti’s speech was not protected by the First Amendment because it was made as a private employee addressing a workplace issue, she would have been fired even if she hadn’t spoken out and her speech was “more disruptive than valuable.” They also argued that their conduct was not prohibited by law at the time of Ricciuti’s firing.

“According to the defendants, this case was brought by a complaining, often insubordinate probationary officer who thought she knew better than her superiors how to run the department. Ms. Ricciuti maintains that she was retaliated against for speaking out as a citizen on a matter of public concern,” the memorandum stated.

The court found that because Ricciuti’s actions were of her own initiative and conducted mostly outside of work, because they did not concern her duties as a police officer, because she was acting like a “regular citizen” and because it was addressed to the public, she was speaking as a citizen, not an employee, and therefore is protected by the First Amendment.
According to Rommel, the town has since filed a motion to reconsider the summary judgment and she has filed an opposition to that. The court now has to rule on the motion for reconsideration and the defendants will have the opportunity to appeal.

“I believe that the right decision has been made,” said Rommel. “We look forward to going to trial so that Rebecca’s wrongful termination can be exposed.”

Attorney Scott Karsten, who is representing the town, said, “In essence, we are saying that this decision was made in 2009, when the law in respect to First Amendment protections for government employees was anything but settled.

“It is hard to understand how the Board of Police Commissioners in Madison can be faulted for acting as they did in such a legal vacuum, in an area where the law continues even today to be evolving and unpredictable.

“The individual defendants ought to be entitled to the qualified immunity available to protect government decision-makers from legal liability for their discretionary actions; that is exactly the purpose of the doctrine.”

Quinnipiac University law professor Jeffrey Meyer said Tuesday that Riccitui’s dispute is very common and similar issues have come up in the past.

“What the First Amendment struggled to do was reconcile core values of free speech with the fact that the government has to have control over how employees act,” he said. “It’s really a multi-factor test that governs these kinds of actions.”

During a trial, a jury will have to decide whether Ricciuti’s protected speech led to her termination, whether the Police Department would have fired her in absence of her actions and whether the value of her protected speech outweighed the disruption it would have caused to the proper functioning of the police department.

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