Gag Order To Employee Under Investigation Did Not Violate The First Amendment

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Public Education Matters
CLIENT TYPE: Public Education, Public Employers, Public Safety
DATE: Jun 06, 2023

Todd Roberts worked as a Safety and Environmental Coordinator for the Springfield Utility Board for over two years. During that time, the Springfield personnel policies stated that 1) employees were expected to keep unscheduled absences and tardiness to a minimum, 2) requests for time off had to be made in advance, and 3) dishonesty would generally result in immediate dismissal.

In August 2019, Roberts took unscheduled time off. He alerted Springfield that morning and stated “I will be out all today working on the kid’s school/sport registrations and such to ensure they are all ready for school next week.” Four minutes later, however, Roberts emailed a co-worker: “I’m looking at your boat’s slip right now headed to the Pig N Pancake.” Roberts later attempted to delete this email.

After discovering this possible misrepresentation, Springfield hired two attorneys to investigate the incident and provide legal advice.  As part of this investigation, Roberts was admonished both in writing and orally. When Roberts was told in writing that “While this matter is being investigated, you are prohibited from engaging in communication in any form with any employees of SUB. … Any contact with SUB employees, including your supervisor, regarding this matter will constitute gross insubordination and be subject to disciplinary action…”

At the beginning of Roberts’ first interview, the investigating attorney stated: “To protect the integrity of the investigation, you are restricted from discussing it with other employees of SUB while it is ongoing”. At the beginning of Roberts’ second interview, the investigating attorney stated: “I’m going to instruct you not to communicate with any potential witnesses about the information that you’ve given . . . Do not communicate with potential witnesses we’ve discussed the investigation or about the information you’ve provided in the investigation.” The attorney then clarified that the communication restriction applied only during the pendency of the investigation, did not apply to Roberts’ discussions with his wife, did not prevent Roberts’ attorney from contacting witnesses on Roberts’ behalf, and that Roberts would have the opportunity to contact potential witnesses when the investigation was complete.

Roberts was terminated because of the findings of the investigation. He sued, alleging that Springfield violated his First Amendment right to free speech by instructing him not to speak with other employees during the investigation. A district court granted summary judgment for Springfield.  Roberts appealed to the Ninth Circuit Court of Appeals.

The Ninth Circuit applied the Pickering v. Board of Education balancing test. This test first determines whether the employee spoke as a citizen on a matter of public concern. If not, there is no First Amendment issue. If the employee did speak as a citizen on a matter of public concern, then the court considers whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the public.

Speech involves matters of public concern if it relates to any matter of political, social, or other concern to the community, or if it is a subject of legitimate news interest.

Here, the restriction on speech affected Roberts’ personal ability to discuss only the investigation into his own alleged violation of SUB personnel policies governing time off and employee dishonesty. Further undercutting Roberts’ claim, his attorney was not restricted from contacting any SUB employees about Roberts’ alleged actions during the investigation. The Court held the speech was not about a matter of public concern.

Roberts argued that the “gag order” was not limited to topics related to the investigation but rather encompassed speech regarding alleged mismanagement and employer failings. The Ninth Circuit reviewed the various admonitions he was given, which on balance, showed that the restriction only pertained to communication with Springfield employees or other potential witnesses regarding the ongoing investigation into his alleged misconduct. The Ninth Circuit, therefore, affirmed the District Court’s grant of summary judgment for Springfield.

Roberts v. Springfield Utility Board, 2023 WL 3402213 (9th Cir.).

Note: This case differs from the PERB cases that prohibit employers from placing blanket gag orders on employees during an investigation unless the employer can prove that an employee will fabricate or spoil evidence.  (See Los Angeles Community College District (2014) PERB Dec 2404-E.)   The PERB cases rely on the employee’s collective bargaining rights to communicate with co-workers regarding wages, hours, and working conditions. This Ninth Circuit case contains a First Amendment analysis only.   

View More News

Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room, Private Education Matters
Cal Supreme Court Says Whistleblower Statute Protects All Employees Who Report Wrongdoing And Not Just The First Employee To Report
Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
Adverse Actions Employer Allegedly Took Before Employee’s Protected Activity Cannot Constitute Retaliation