Provided by James R. Touchstone Esq
In Ohlson v. Brady, the Ninth Circuit Court of Appeals determined that public agency defendants were entitled to qualified immunity in an employee’s action alleging the defendants violated the employee’s First Amendment rights by disciplining him for protected speech. In reaching its conclusion, the Court found no clearly established law on the issue of whether testimony given as part of a government employee’s duties was protected speech, nor recognizing a First Amendment violation with respect to governmental action against an employee’s speech within the workplace.
Greg Ohlson was employed as a forensic scientist employed by the state of Arizona in the Arizona Department of Public Safety, Scientific Analysis Bureau (the “Department”). The Department is an agency that analyzes blood samples for alcohol content. His job was to test the samples and report the findings, and to testify about those findings in court proceedings. Ohlson started as a lab analyst in the drug toxicology unit in 2004 and transferred to the alcohol unit in 2015. At the alcohol unit in 2016, he was the most senior level forensic scientist.
The Department has a range of quality control policies, such as the Department’s approach to ensuring accuracy among blood samples by looking at an entire batch of samples. When the Department receives blood alcohol samples from law enforcement agencies, it analyzes each individual sample. A “batch” of samples is then reviewed. The Department’s quality assurance manual policy and national standards require this step to ensure that nonconformities in batches are identified and to catch instrument failures or malfunctions skewing results. Under Department policy, individual sample results are released to a defendant, but, absent a court order, not the other samples in the batch. However, the other samples may be viewed at the lab.
The Department is nationally accredited, and its laboratory policies and protocols have been approved by the appropriate accrediting body. The Department sought Ohlson’s input on laboratory policies on several occasions. He became increasingly insistent on certain policy changes. Ohlson believed defense attorneys could better evaluate the accuracy of an individual’s blood sample result if the samples of the individual in question were reported along with the results for the entire batch of samples with which that individual’s samples were tested. Ohlson thought that the Department should make the results of all the samples within a batch readily available to the criminal defendants, and suggested making the batch data public by releasing it on a website. Ohlson made his thoughts known in repeated conversations with his supervisor, Joe Tripoli, and Beth Brady-Morris, Tripoli’s supervisor and the Crime Lab Manager. Ohlson was told to put it in writing, and he emailed this and many other suggestions to his supervisors.
Ohlson’s supervisors informed him that the release of batch results was not feasible because the Department would need technological help, and Ohlson’s supervisors were not able to make that Department-wide decision. Contrary to Department policy, Ohlson then began creating a private PDF file of all the data within batches. Ohlson regularly conducted pre-trial interviews with defense attorneys as part of his job. In those interviews, he began instructing defense attorneys to request the production of data for the entire batch.
Ohlson’s job as a blood-alcohol analyst also involved regularly testifying in state court proceedings. Either side could subpoena Ohlson to testify. While testifying, Ohlson was regarded as on duty and provided a Department vehicle to get to court.
In a May 2016 case, Ohlson testified that he felt the disclosure of the entire blood sample batch was necessary to ensure accuracy of the result and testified further that he had a PDF of the batch results that he could send to the parties if permitted to do so. In June 2016, Ohlson’s supervisors told him that he had violated Department policy due to his testimony and told him to bring his future testimony in line with that of laboratory policy and to delete the PDF files. Ohlson responded by requesting a meeting with the Assistant Director, venting to a coworker, and meeting with a manager. Ohlson’s supervisors then gave him a Performance Notation that instructed him to, among other things, adhere to general lab policies, cease his personal scanning of batch results, cease use of legal proceedings to advance personal views, and modify testimony to bring it in alignment with the Department’s positions. Ohlson wrote “Unable to comply completely” by the relevant paragraphs.
A few days later, Ohlson was called upon to testify in an evidentiary hearing in another case. Defense counsel in that case had sought the batch report, apparently per Ohlson’s suggestion, because they had spoken earlier. The state had declined to produce it, deeming the other results within the batch irrelevant to the defendant’s blood results. The defense attorney specifically questioned Ohlson about his scanning of the batch tests results, the complexity of that process, and whether it was against Department policy to produce the batch results. The attorney asked whether there had been a situation where the batch samples had shown a problem with the Department’s methods or equipment. Ohlson responded: “Not personally in the last year, but I’ve been doing this for 35 years, so I have seen circumstances that have caused that to happen, which is why I have my specific position in this.” The attorney then asked: “And what is your specific position in this?” Ohlson answered that his personal belief was that batch results should be disclosed. He expressed his disagreement with his superiors and closed by stating that it was not in his “best interest in terms of career advancement” to testify as he had. He also stated that he had been instructed to delete his private copies of batch results.
Ohlson was subsequently placed on administrative leave pending an investigation by the Department’s Professional Standards Unit. This investigation resulted in Ohlson’s 16-hour suspension in November 2016. Ohlson gave notice of his retirement later that same month.
Ohlson filed a complaint in federal district court against Tripoli, Brady-Morris, and Vincent Figarelli, Brady-Morris’s supervisor and the Superintendent of the Scientific Analysis Bureau. Ohlson alleged in part a First Amendment retaliation claim for “testifying truthfully and completely under oath in the [two cases], and in advocating within the [Department] for a change in the manner in which the department responds to requests in criminal cases for entire batch runs.”
The District Court held that Ohlson’s speech was on a matter of public concern because his “advocacy involved [the Department’s] duty to serve the criminal justice system by improving . . . access to accurate test results.” The District Court held that Ohlson’s speech was made as a private citizen mainly because, though Ohlson’s job responsibilities involved testifying in court and updating scientific methodology, his supervisors told him to stop advocating and he nevertheless persisted. The District Court also noted that Ohlson’s internal advocacy went outside of his chain of command when he spoke with attorneys privately about the importance of receiving results in a batch. The District Court correspondingly held that Olson established a violation of his First Amendment rights with respect to both his internal advocacy and his case testimony.
Defendants argued that, under Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968), the state’s interests as an employer in promoting efficiency in public services outweighed Ohlson’s interest in commenting on matters of public concern. Defendants asserted that Ohlson’s role as “the public face of [an] organization” made his advocacy particularly harmful to the effective operation of the Department. The District Court concluded that the government had failed “to indicate how its legitimate interests suffered particularized injury as a result of [Ohlson’s] speech.”
The District Court nonetheless granted defendants’ summary judgment motion on the basis of qualified immunity, holding that Ohlson’s First Amendment rights were not clearly established. Ohlson appealed.
On appeal, Ohlson argued that the defendants were not entitled to qualified immunity because their violations of his First Amendment rights, especially his right to testify truthfully in court, were clear. Defendants contended that, even if they violated the First Amendment, they were entitled to immunity and further contended that there were no violations because Ohlson was always speaking pursuant to his official responsibilities, and not as a private citizen exercising First Amendment rights.
The Ninth Circuit Court of Appeals noted that there was no dispute that Ohlson’s advocacy led to the Department’s action against him. Nor was there any serious dispute that what he was speaking about – the way forensic evidence is produced and presented in court – was a matter of public concern. The only serious dispute was whether Ohlson’s speech should be treated as that of a private citizen exercising the right protected by the First Amendment to criticize the government, or as that of a government employee subject to discipline for undermining agency administration and public confidence in agency operations.
Review of Pickering and Relevant Case History
The Ninth Circuit began by reviewing the relevant United States Supreme Court decisions, as well as the Ninth Circuit’s own efforts to apply those decisions. In the Supreme Court’s 1968 Pickering decision, a public-school teacher was fired for writing a letter to the editor of the local paper criticizing the budgetary actions of the school board. The Supreme Court assessed the “balance between the interests of the teacher, 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.” Pickering, supra, at 568. Applying this balancing test in ruling for the teacher, the Court held that the First Amendment interests of the teacher outweighed the administrative interests of the Board. The Supreme Court explained that the teacher had a First Amendment interest in expressing his views, he had not seriously interfered with the Board’s functions, and the subject was one of public concern. The interest of the school board was no greater than it would have been had the speaker been an ordinary citizen. In Connick v. Myers, 461 U.S. 138 (1983), a disgruntled government employee circulated a questionnaire to fellow employees that was critical of the employer. The Supreme Court this time concluded that the employee was commenting on matters of public concern “in only a most limited sense,” and the employer, in disciplining the employee, was upholding legitimate administrative interests. Id. at 151-54.
In Garcetti v. Ceballos, 547 U.S. 410 (2006), a deputy district attorney employee had expressed disagreement with a superior’s decision on a matter of public concern, but the employee had done so while performing his job duties. The Supreme Court majority there reversed the Ninth Circuit’s decision in favor of the deputy, with the Supreme Court emphasizing that the deputy district attorney was not speaking as a citizen but pursuant to his duties in the district attorney’s office.
In Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009), the Ninth Circuit reviewed Supreme Court guidance on public employee free speech law, and clarified that the Pickering balancing test could be distilled into five factors: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Id. at 1070.
A few years later, the Ninth Circuit decided Dahlia v. Rodriguez, 735 F.3d 1060, 1068-76 (9th Cir. 2013) (en banc), on which the District Court in the instant case principally relied. The plaintiff in Dahlia was a detective for the Burbank Police Department who had reported police misconduct both internally and to the Los Angeles County Sheriff’s Department. The Ninth Circuit had applied Garcetti to hold that an employee acting pursuant to his job duties is never protected by the First Amendment, but the en banc Court later overruled that decision.
Dahlia outlined some “guiding principles” to determine the second Eng factor, whether public employees are speaking as private citizens: (1) whether the employee had confined his communications to his chain of command; (2) the subject matter of the communication; and (3) whether the employee’s speech was in “direct contravention” of his supervisor’s orders, which our court said indicates the “speech may often fall outside of the speaker’s professional duties.” Id. at 1074-75. Dahlia said that the first, “chain of command,” factor was “a relevant, if not necessarily dispositive, factor.” Id. at 1074. The majority concluded that the employee’s speech was not within the scope of his duties. Significantly, the en banc Court observed that the Dahlia plaintiff had reported the misconduct beyond his superiors and outside the chain of command in order to differentiate that situation from Garcetti, where the criticism of the employee’s superiors was made in the course of communications required as part of the job. This distinction supported the majority’s conclusion that the plaintiff was speaking as a private citizen rather than as an employee, as the plaintiff had gone outside the scope of his regular job duties to report misconduct. The majority rejected the view of the concurrence, which had stressed that the plaintiff’s job required him to report misconduct and that, in its opinion, Garcetti announced a bright-line rule that conduct in the course of performing required duties is not protected.
Neither Dahlia nor the Supreme Court cases preceding it involved an employee’s testimony in court. However, the year after Dahlia, the Supreme Court did decide such a case in Lane v. Franks, 573 U.S. 228 (2014). In Lane, the plaintiff was a director of a community college program who had exposed a subordinate employee’s malfeasance and then testified as a fact witness in the subsequent criminal trials. The plaintiff was fired on the basis of that testimony. In the plaintiff’s suit against the employer for violating his right to free speech, the Eleventh Circuit had held that, in testifying, the plaintiff had spoken as an employee, not as a citizen, and his speech was not protected. The Supreme Court disagreed, holding that the plaintiff as a citizen had a duty to testify when subpoenaed to do so and was therefore speaking as a citizen, not as an employee.
The Lane Court employed the Pickering balancing test to determine that the government lacked any adequate justification to discipline the plaintiff. That Court observed that the plaintiff’s testimony was not false or erroneous and that he made no improper disclosures. The plaintiff’s job as a program director did not require him to testify, and he was testifying outside the duties of his job. The majority opinion stressed that as an employee, the plaintiff must be protected when performing a duty to testify that is required by all citizens and not a duty imposed solely as a result of his job duties. This was critical to the Court’s conclusion that the plaintiff’s speech was protected by the First Amendment.
However, the Lane Court nonetheless held that the plaintiff’s rights were not clearly established at the time of the violation, and that the defendants were therefore entitled to qualified immunity. The Supreme Court explained that the law of the Eleventh Circuit supported the defendants in that case and they could not have known the Supreme Court would overrule it. Relevant here, a special concurrence by Justice Thomas expressly reserved the question of whether testimony given as part of the duties of the job, like those of a policeman or laboratory analyst, would be protected. Lane, 573 U.S. at 247 (Thomas, J., concurring).
Here, the Ninth Circuit noted that unlike Lane, the instant case concerned testimony by an employee who was required to testify as part of his government employment. Ohlson’s job duties included analyzing blood samples, producing the testing results when they were requested by defense counsel, and explaining the results in court testimony when called upon to do so. Ohlson was disciplined in large part because, in his testimony in two separate cases, he had expressed his view that flaws in testing could be better identified if the Department disclosed requested testing results in batches rather than individually. Such disclosure was contrary to the Department’s practice, one that had met industry standards. Ohlson believed his idea was better and violated orders not to so testify.
The Ninth Circuit disagreed with the District Court’s conclusion that Ohlson spoke as a private citizen, and therefore his speech was protected, in large part because he spoke against his supervisors’ orders. The Court of Appeals found that the District Court apparently misunderstood Dahlia to stand for the proposition that speech in defiance of orders is always a strong indication that an employee is speaking as a private citizen and that the speech would therefore be protected. The Ninth Circuit explained that the District Court did not consider the fact that Ohlson was testifying in court as the Department’s employee, and that the Department had an interest in what he said.
The Ninth Circuit noted that protecting speech because it violates a supervisor’s order would make it difficult for an agency to enforce any rules, even those necessary to preserve proper agency administration. The Ninth Circuit also doubted the District Court’s conclusion that, because citizens have a duty to testify when subpoenaed to do so, Ohlson was speaking in court as a citizen rather than as an employee. The Ninth Circuit noted that Ohlson’s job duties included testifying in court, and whether testimony given as part of a government employee’s duties was protected speech was a question the Supreme Court expressly left open in Lane.
The Ninth Circuit also disagreed with the District Court’s analysis weighing the First Amendment interests of the plaintiff against the interests of the state. The District Court said that the state agency had not identified any particular injury to the state, so the scales tipped strongly toward Ohlson. The Ninth Circuit thought otherwise. Ohlson was advocating, in the course of his employment duties, for a different and, in his view, better way the agency should report results. The Court of Appeals explained that this could conceivably have adversely affected confidence in the accuracy of the Department’s test results, as well as in the Department itself. The Court noted that the Department was duly licensed and accredited. Its operations, including the manner of reporting test results, were in accord with industry standards. Thus, the Ninth Circuit could not agree that the defendants had failed to identify any possible injury.
Discussing qualified immunity, the Ninth Circuit noted that the Supreme Court has stated that a constitutional right is clearly established when “any reasonable official in the defendant’s shoes would have understood that they were violating [a plaintiff’s constitutional right].” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (citations omitted). No “directly on point” case is required, but the constitutional question must be “beyond debate.” Kramer v. Cullinan, 878 F.3d 1156, 1163 (9th Cir. 2018) (citations omitted).
The Ninth Circuit noted that Ohlson was a qualified professional employee, and the procedures used by the Department met applicable standards, which made this case different from Lane or Dahlia, where the speech in question was exposing corruption and held to be protected. The Court stated that the instant case was also unlike Pickering, where the employer had no greater interest in the content of the speech than if the speech was that of a member of the general public rather than of a government employee. Ohlson’s testimony was given as an expert explaining the testing process and would have a much greater potential impact on public perception and confidence in laboratory procedures than would views expressed by a lay member of the public. The Ninth Circuit expressed no opinion as to whether Ohlson’s interests, in publicly expressing his views on better laboratory procedures, outweighed the interests of the defendants in the administration of their duties. The Court of Appeals explained that the balancing inquiry was more difficult than the District Court perceived it and disagreed that the balance clearly favored Ohlson. The Ninth Circuit concluded that it was “abundantly clear” that the law was not clearly established as to Ohlson’s testimony.
The Ninth Circuit Court of Appeals thus agreed with the District Court that the defendants had not violated any clearly established law, and concluded the defendants were entitled to qualified immunity. The Ninth Circuit accordingly affirmed the District Court’s judgment in favor of the defendants.
HOW THIS AFFECTS YOUR AGENCY
It is clear upon reading the Ohlson opinion that this area of the law is very complex, and fact driven. Agencies are encouraged to seek legal assistance prior to making determinations concerning discipline of employees for speech activities. In this case, it should be noted that the Ninth Circuit expressed no opinion, based on the record before it, as to whether the plaintiff’s interests, in publicly expressing his views on better laboratory procedures, specifically outweighed the interests of the defendants in the administration of their duties. The failure to make this determination by the Court is somewhat troubling from the perspective of providing guidance to agencies in similar circumstances.
However, the Court did acknowledge that Ohlson’s testimony contrary to the Department’s policies and directives did provide the basis for a determination of injury to the Department that arguably undermined the effective operations of the Department and confidence in its procedures and determinations. Finally, the Court also noted that protecting speech because it violates a supervisor’s order, as the District Court sought to do, would make it difficult for an agency to enforce any rules, even those necessary to preserve proper agency administration. The Court’s recognition of this issue is critical for employers examining similar situations from a disciplinary perspective.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at email@example.com or by telephone at (714) 446-1400.
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 2021 U.S. App. LEXIS 25139 (9th Cir. Aug. 23, 2021).