Do Governmental Employees Have the Right to Comment on their Belief that the Agency by which they are Employed is Acting Outside its Authority?

The federal appellate court having jurisdiction over federal questions arising in Utah, the Tenth Circuit, issued a decision on January 8, 2009, explaining that an employee's concern over the scope of an investigation was a matter of public concern. The court in Dixon v. Kirkpatrick held that, although an employee had raised an issue of public concern, the agency for which she worked was justified in terminating her employment because the agency had a more substantial interest in protecting the details of ongoing investigations.

The employee in this case was hired as an "investigative assistant" by the Oklahoma Board of Veterinary and Medical Examiners (OBVME). An investigative assistant is a person assigned to an investigator to provide primarily clerical assistance. In this case, during the employee's tenure of employment, the OBVME assisted in the investigation of a dog-fighting ring. There was some question as to whether any veterinary was involved in the ring, and, the investigative assistant was concerned that the OBVME was inserting itself in matters over which it had no jurisdiction. The employee expressed those concerns, together with concerns about the management of the office and the conduct of the investigator she was assisting, to a local veterinarian who was a member of a committe of a private trade organization of veterinarians.

After it was discovered that she had spoken with the veterinarian, the employee was fired on the basis that she had spoken about an ongoing investigation to a member of the public. Although there was some dispute, the court assumed that the OBVME had never formalized a policy prohibiting such discussions.

Unlike private employees, employees working for governmental entities have constitutional protections that keep their governmental employers from unreasonably restricting the employees' first amendment right to speech. Although other questions are important to a determination of the legality of the any speech restriction, in this case, the questions important to the Tenth Circuit were (1) whether the employee's discussion of the OBVME's activities that allegedly exceeded the scope of its statutory authority was a discussion of a matter of public concern and (2) whether the government's interest in preventing the speech outweighed the employee's interest.

In commenting on the first question, the court ruled that the employee's concern about the OBVME's improper use of public funds to investigate a matter outside its jurisdiction was a matter of public concern that implicated the employee's free speech rights. On the other hand, the court ruled that the employee's concern about the management style of the director and the conduct of her supervisor were not matters of public concern given the lack of the seriousness of the allegations.

Even though the court initially concluded that at least one issue about which the employee had spoken was a matter of public concern, the court still concluded the OBVME was justified in terminating the employee because the OBVME had a legitimate interest in protecting the confidentiality of its investigations that outweighed the employee's interest. The court was particularly concerned that such a rule was necessary to protect the inadvertant disclosure of details about an investigation that would disrupt the OBVME in fulfilling its mission. The Tenth Circuit was very careful, however, to limit its decisions to the specific facts of this case.