Public Sector Case Notes

• Jurisdiction: United States,Federal,Oregon
• Author: Scott Tiedemann
• Citation: Vol. 37 No. 5
• Publication year: 2023

PUBLIC SECTOR CASE NOTES

AUTHORS^*

Scott Tiedemann

Brian Dierzé

NO FIRST AMENDMENT VIOLATION IN EMPLOYEE'S GAG ORDER

Roberts v. Springfield Utility Board, 68 F.4th 470 (9th Cir. 2023)

Todd Roberts worked as a safety and environmental coordinator for the Springfield Utility Board (SUB) in Oregon for more than two years. During that time, its personnel policies stated that:

• employees were expected to keep unscheduled absences and tardiness to a minimum;
• requests for time off had to be made in advance; and
• dishonesty would generally result in immediate dismissal.

In August 2019, Roberts took unscheduled time off. He alerted SUB that morning and stated: "I will be out all today working on the kids 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, SUB hired two attorneys to investigate the incident and provide legal advice. As part of this investigation, Roberts was admonished both in writing and orally. He was informed in writing: "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, including immediate termination of employment."

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 his 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 about 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 after the investigation concluded. He sued, alleging that SUB 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 SUB. Roberts appealed to the Ninth Circuit Court of Appeal.

The Ninth Circuit applied the Pickering v. Board of Education¹ 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.

According to other relevant precedent: "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; that is, a subject of general interest and of value and concern to the public."²

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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...