For those who came to Minneapolis for our conference thank you and I hope you gained valuable insight. For those who stayed home, I hope you joined our virtual programming (which had some AV problems we're discussing with the contractor the hotel provided us). Now that you're back, the 2nd Circuit issued an interesting opinion today that I think reflects the conflict that faces us when applying the First Amendment to public employment. A fire marshal was tasked with investigating a fire that resulted in significant damage and the death of a firefighter at an older building that was being used to film a movie. Two conclusions could be reached - the fire started with a defective boiler or the movie crew inadvertently started it with their equipment. The fire marshal opted for the latter cause, but his bosses felt it was the boiler. The fire marshal was told to write up the report with the boiler as the cause and he refused. In addition, he raised alarms throughout the department about the issue and went outside to the District Attorney and the Office of Investigation to assert his claim that the managers wanted to protect the city's movie business as their motive for pushing the cause off on the building's boiler. After some claimed harassment the fire marshal filed for disability retirement and then files suit for First Amendment retaliation and some state law civil service violations. The lower court dismissed his claims, finding that his speech was that of an employee not as a member of the public under Garcetti. A panel of the 2nd Circuit reversed on the retaliation claim finding that where a public employee is given the choice between lying in a report or being disciplined or otherwise harmed in employment, that such a forced choice is protected by the First Amendment and thus, can support a retaliation claim. Also, going to the DA and investigative office are similarly protected as public speech. On the surface this all seems to make empathetic sense - who can disagree that public policy requires that we support public employees who bring forward claims of malfeasance or misfeasance in office. However, a deeper dive reflects the conflict between running an organization where disgruntled employees can lay claim to being forced to choose ethics over jobs by simply complaining that their bosses have told them to file false reports or complaining to prosecutors or IG's, etc. about how management operates a department. Over the years, I found that I was not always right in my decisions, but let's say the managers here (all experienced fire investigators) reviewed the facts and determined that the fire marshal's conclusion was wrong and that the boiler was the cause. Wouldn't that be there job? So, what will the trial look like - is the question of the truth regarding the origin of the fire even an aspect of the case once a retaliation claim is filed? Can you defend on the basis that we didn't retaliate because we were correct and he was wrong? How do you manage a workforce when employees disagree with managerial decisions and can claim that the decisions are motivated by improper bases to a third party and then be protected by the First Amendment against retaliation? BTW, note that when things went downhill the Plaintiff was able to get a disability retirement - hmmmmm. Candidly, I don't know who's telling the truth in this one, so pardon the rant, but isn't there something we can do to put common sense back into the system. Specht vs. NYC https://www.ca2.uscourts.gov/decisions/isysquery/37827466-7480-4f76-921f-f93d8326462a/1/doc/20-4211_opn.pdf#xml=https://www.ca2.uscourts.gov/decisions/isysquery/37827466-7480-4f76-921f-f93d8326462a/1/hilite/ Charles W. Thompson, Jr. Executive Director/General Counsel P: (202) 466-5424 x7110 M: (240) 876-6790 D: (202) 742-1016 [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> [logo]<https://imla.org/> 51 Monroe St. Suite 404 Rockville, MD, 20850 www.imla.org<http://www.imla.org/> Plan Ahead! IMLA's 86th Annual Conference<https://imla.org/annual-conference/>, Sept. 29-Oct. 3, 2021 in Minneapolis, MN IN-PERSON or VIRTUAL! IMLA's 2022 Mid-Year Seminar<https://imla.org/seminars/>, April 8-11, 2022 in Washington, D.C.!