By Anthony Rice
This article demonstrates how arbitrators might view similar free speech claims differently. In Elko County, a sergeant’s discussion about the sheriff’s proposed staff reorganization was allowed to circumvent the chain of command since the speech was protected by the First Amendment. However, in City of Wapakoneta, a fire captain’s speech was required to go up the chain of command because the speech was not protected.
The facts of these two arbitration decisions are similar. In Elko County, the sergeant met with the county commissioner to discuss the new sheriff’s proposed changes to staff reorganization. At the meeting the sergeant expressed concerns about the increased span of control resulting from the reorganization and his concern that increased span of control will be a problem for the department. In City of Wapakoneta, a fire captain approached two members of city council and told them that he did not believe that a new fire truck was needed at the time. He told them that it would be a poor investment and provided the council members with specific information to support his opinion.
The arbitrators’ analysis of the confidentiality of the speech contributed to the differing outcomes. The Elko County arbitrator quoted the U.S. Supreme Court to support the finding that information not available to the public can still be protected speech:
Underlying the decision in Pickering, is the recognition that public employees are often the members of the community who are likely to have informed opinions as to the operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues…. The interest at stake is as much the public’s interest in receiving informed opinion as it is the employee’s own right to disseminate it.
The arbitrator also concluded that staffing reorganization was not related to the sergeant’s normal job duties. This helped the arbitrator reach the conclusion that the sergeant’s speech was made as a citizen on a matter of public concern. Accordingly, the sergeant was allowed to bypass the chain of command and go directly to the commissioner. The arbitrator overturned his demotion, finding that the Elko County Sheriff violated the just cause standard when he demoted him for a reason that involved protected free speech.
However, in City of Wapakoneta, the arbitrator upheld the demotion of the Fire Captain, finding that he had violated rules requiring him to go up the chain of command. The arbitrator reasoned that the confidential nature of the speech meant he was not a private citizen on a matter of “public concern”:
The Grievant had substantial knowledge that was not available to the public . . . Had the Grievant been speaking to the council members about garbage collection or road maintenance, for example, his assertion that he was speaking as a private citizen would be believable. However, Grievant was a fire department captain with 25 years of firefighting experience, and he was speaking about a fire department matter. He could not possibly have spoken as a private citizen.
