Ninth Circuit Victory Bolsters First Amendment Protections for Public Employee Speech on Matters of Public Concern

 In a decision of considerable practical significance for California public safety unions and the rank-and-file members they represent, the United States Court of Appeals for the Ninth Circuit has reversed a district court judgment and entered summary judgment in favor of a public university professor who faced investigation, reprimand, and threats of discipline after including a satirical statement in his course syllabus. The ruling in Reges v. Cauce clarifies important boundaries under the First Amendment in the public employment setting and carries implications that extend well beyond the university context.

Factual Background

The case arose when Professor Stuart Reges, a longtime teaching professor in the University of Washington’s Paul G. Allen School of Computer Science and Engineering, incorporated into his introductory computer science syllabus a concise parody of the university’s recommended indigenous land acknowledgment. Reges’s statement invoked the labor theory of property to question historical ownership claims and framed the university’s preferred language as an empty performative act. He viewed the official recommendation as part of a broader diversity, equity, and inclusion agenda that he believed improperly elevated certain groups on the basis of immutable characteristics. The statement was not presented as the university’s position; it was plainly attributed to Reges in the first person and appeared in a document over which faculty traditionally exercise substantial control.

University administrators responded swiftly. They removed the statement from the online syllabus, issued public statements condemning it, solicited student complaints, opened a lengthy disciplinary investigation, withheld a merit pay increase, and ultimately issued a formal reprimand while warning that future inclusion of similar language could result in further discipline. A faculty committee concluded that the statement caused significant disruption, citing student discomfort, one reported leave of absence, and an alleged dropout—claims the Ninth Circuit later found inadequately substantiated.

The district court had granted summary judgment to the university officials, concluding that any First Amendment interests were outweighed under the Pickering balancing test by the university’s interest in avoiding disruption to the learning environment. The Ninth Circuit disagreed in a thorough and carefully reasoned opinion.

The Ninth Circuit’s Ruling

The court first confirmed that Reges’s speech constituted protected academic speech rather than unprotected government speech. Although syllabi are distributed as part of a professor’s official duties, the Ninth Circuit’s precedent in Demers v. Austin establishes that speech related to scholarship or teaching falls outside the Garcetti framework that ordinarily denies First Amendment protection to public employee speech made pursuant to official duties. Reges was commenting on a matter of ongoing public debate, the propriety and factual premises of institutional land acknowledgments, and was not speaking as the university’s messenger. The court noted that the university itself treats syllabi as the purview of the faculty and does not pre-approve their content.

Because the speech addressed a matter of public concern, the court proceeded to Pickering balancing. It held that the university failed to carry its burden of demonstrating that its legitimate administrative interests outweighed Reges’s First Amendment rights. The primary evidence of disruption consisted of student offense, anger, and discomfort—reactions the court deemed an inevitable byproduct of robust academic debate on contested public issues. In the higher education setting, such reactions do not justify adverse employment action against a professor. The court further observed that claims of more tangible disruption, such as students dropping out or difficulties recruiting Native students, suffered from serious problems of proof. One cited student had not even been enrolled in Reges’s course and identified multiple other reasons for taking a leave of absence; the second student referenced in the record did not appear to exist.

The Ninth Circuit therefore directed entry of summary judgment for Reges on both his First Amendment retaliation claim and his viewpoint discrimination claim. It remanded for further proceedings on Reges’s facial challenge to the university’s broadly worded nondiscrimination policy, which authorizes discipline for “any conduct that is deemed unacceptable or inappropriate” regardless of whether it rises to the level of unlawful harassment or discrimination.

Implications for California Public Unions and Their Members

For California public unions and their members, this decision merits close attention. Although the facts arose in a university setting, the  framework governs public employees generally, including peace officers and firefighters. Public safety personnel routinely encounter questions regarding the scope of their rights to comment on departmental policies, social issues, or legislative matters that affect their profession and the communities they serve. The Ninth Circuit’s emphatic rejection of “heckler’s veto” reasoning, i.e. the notion that employee speech may be suppressed simply because it causes offense or emotional distress among colleagues or constituents, provides meaningful protects for publci employees who speak on controversial topics.

Overbroad language of the sort challenged in Reges may prove vulnerable to constitutional scrutiny, particularly where enforcement appears to turn on viewpoint rather than narrowly tailored operational needs.  The decision further underscores that public employers must substantiate claims of actual, material, and substantial disruption with concrete evidence rather than speculation or generalized assertions of harm. Mere predictions of difficulty in recruitment, retention, or internal harmony, without more, may not suffice to overcome an employee’s First Amendment interests when the speech addresses a matter of public concern.

The opinion serves as a timely reminder that the First Amendment exists to protect unpopular and even sharply worded expression on matters of public importance, and that public institutions may not insulate themselves from debate by punishing those who challenge prevailing orthodoxies.The principles articulated by the Ninth Circuit offer valuable tools for preserving the ability of rank-and-file employees to participate meaningfully in public discourse without undue fear of retaliation.

Ninth Circuit Protects First Amendment Rights to Place Political Yard Signs While Drawing Sharp Limits on Internal Job-related Speech

In a decision that offers important guidance for California public safety unions and the rank-and-file members they represent, the Ninth Circuit Court of Appeals in Burch v. City of Chubbuck (2025) 146 F.4th 822 has clarified the boundaries of First Amendment protection in the public workplace. Although the court ultimately affirmed summary judgment in favor of the employer, the opinion carefully distinguishes between protected speech made as a private citizen and unprotected speech made pursuant to official job duties. The ruling reaffirms that off-duty political expression retains meaningful constitutional safeguards while underscoring the narrower protection afforded to internal workplace communications.

Rodney Burch served as the Public Works Director for the City of Chubbuck, Idaho. During a local mayoral election, he placed a yard sign at his residence supporting the incumbent mayor’s opponent. Separately, he engaged in internal advocacy, criticizing the mayor’s management policies and advancing a detailed proposal for the creation of a city administrator position. After the mayor secured re-election, Burch faced requests that he resign, an attempt to remove him through the city council, and subsequent reductions in his responsibilities and decision-making authority. He filed suit alleging First Amendment retaliation.

The Ninth Circuit held that Burch’s political yard sign constituted protected speech. It addressed a matter of public concern and was undertaken in his capacity as a private citizen rather than pursuant to his official duties. By contrast, the court concluded that Burch’s internal criticisms of the mayor’s policies and his structural reform proposals were speech made pursuant to his official responsibilities as a department head. As such, those communications fell outside First Amendment protection under the principles established in Garcetti v. Ceballos. Because the employer demonstrated adequate justification for the adverse actions based on the unprotected speech, and because the changes in Burch’s duties did not rise to the level of constructive discharge, the court affirmed summary judgment for the city.

For rank-and-file public safety employees, this decision carries significant practical weight. Public employees frequently speak out on matters of public concern, including departmental policies, public safety priorities, budget decisions, or local political questions. Burch confirms that classic off-duty political activity, such as displaying campaign signs, posting on personal social media in a private capacity, or otherwise expressing views as a concerned citizen, remains strongly protected. Public employers may not retaliate against employees for engaging in such citizen speech merely because the content is critical of management or touches on workplace issues.

At the same time, the ruling serves as a clear cautionary note about the limits of protection for speech delivered in the course of employment. Internal emails, reports, meeting comments, or proposals that can reasonably be viewed as part of an employee’s official responsibilities will typically be treated as unprotected under Garcetti. This distinction is especially pertinent in law enforcement and fire service agencies, where structured chains of command and operational proposals are commonplace. What may appear to a member as legitimate workplace advocacy can mischaracterized by management as insubordination once it is framed as an official communication.

Public safety unions should therefore treat Burch as a valuable educational tool. It is advisable to provide members with clear guidance on how to separate personal, citizen speech from any expression that could be construed as arising from their official duties. When raising legitimate concerns about public safety or departmental operations, members are generally better served by channeling those concerns through union representatives or other protected avenues rather than through formal internal memoranda or proposals presented in their official capacity.  

While the outcome in Burch favored the employer, the decision does not represent a broad retreat from public employee speech rights. On the contrary, it reaffirms that pure private-citizen speech on matters of public concern continues to enjoy meaningful First Amendment protection. For California public safety unions, the case provides a useful roadmap for how to exercise their constitutional rights safely and effectively. By understanding and respecting the line drawn in Burch between protected citizen speech and unprotected official-duty speech, public employees can more confidently participate in the democratic process while minimizing exposure to retaliation.

Public safety unions must remain vigilant in defending these rights and should be prepared to challenge overbroad applications of Garcetti whenever employers attempt to silence legitimate citizen expression. The First Amendment remains a vital safeguard for those who protect our communities.

When Using an Internal Investigation as a Defense, Expect Disclosure: Lessons from Paknad v. Superior Court

In a decision of considerable practical significance for public safety unions, the Sixth District Court of Appeal in Paknad v. Superior Court (Apr. 17, 2026), has clarified that an employer cannot invoke the thoroughness of its internal investigation as a shield in litigation while simultaneously withholding the factual substance of that investigation behind claims of privilege. The ruling arises from a sexual harassment, gender discrimination, and retaliation lawsuit in which the employer repeatedly emphasized the quality and independence of its pre-litigation investigation. When the plaintiff sought production of the full investigative reports, the Court of Appeal held that the employer’s defensive reliance on those materials waived both attorney-client privilege and work-product protection as to the factual findings and information bearing on the scope and adequacy of the investigation itself.

Before litigation commenced, the employer retained outside counsel to investigate the employee’s complaints. Counsel conducted witness interviews, reviewed documents, and prepared two detailed written reports containing the employee’s allegations, summaries of the interviews, the investigator’s factual determinations, conclusions, and legal recommendations for future action. The employer provided the plaintiff only with a high-level summary of the findings and later asserted an avoidable-consequences defense in the lawsuit, representing to the court and the jury that it had “thoroughly investigated every allegation” through an “independent, outside investigator” who had interviewed numerous witnesses and reviewed a voluminous record. When the plaintiff moved to compel production of the actual reports and underlying materials, the trial court initially permitted sweeping redactions that stripped away virtually all of the investigator’s factual findings. The Court of Appeal twice granted writ relief, first ordering production subject to in-camera review and then rejecting the trial court’s overly broad redactions on the second petition.

The appellate court’s reasoning rests on a straightforward fairness principle. Once an employer places the adequacy and independence of its internal investigation at the center of its defense, it cannot fairly withhold the very facts that would allow the plaintiff to test that claim. The court expressly held that factual content—witness statements, the investigator’s factual determinations about what occurred, and any information relevant to whether the investigation was thorough and impartial—must be produced. Pure legal advice, mental impressions, or unrelated protected communications may still be shielded, but the factual core of the investigation is not. Even core attorney work product loses protection when the employer voluntarily puts the protected matter at issue.

For California public safety unions, this decision represents a meaningful advance in discovery rights. Public employers routinely contract lawyers to conduct workplace investigations into member complaints of discrimination, harassment, and retaliation. Later, they seek to conceal these investigations citing attorney-client privilege while simultaneously touting that they “did everything right” and “thoroughly investigated.” Paknad makes clear that such representations come at a price.

Unions and their members now have authority supporting demands that the employer produce the actual investigative reports, interview summaries, and factual findings rather than hiding behind vague summaries or privilege assertions. The practical implications are considerable. In future litigation, counsel for public safety members should move aggressively to compel production whenever the employer pleads or argues that it conducted a proper investigation. Unions should also counsel members, during the administrative phase, to request full copies of any investigative reports generated in response to their complaints. Early reliance on an attorney-conducted investigation does not guarantee confidentiality if that investigation later becomes a centerpiece of the defense.

Conclusion

In light of Paknad, public safety unions would be well advised to treat any employer assertion regarding the quality of an internal investigation as an invitation to demand full disclosure. Paknad establishes an important principle in California employment law: an employer who voluntarily invokes the thoroughness and independence of its internal investigation as a litigation defense cannot simultaneously withhold the factual substance of that investigation behind claims of attorney-client privilege or work product protection. 

To that extent, the decision supports access to investigation materials by the employee who was the subject of the investigation—but its support is conditional, not categorical. The case does establish a freestanding right of an accused employee to access investigation materials in the pre-litigation or pre-disciplinary context. Rather, it holds that when an employer places investigation adequacy "at issue", a waiver of both attorney-client privilege and work product protection occurs, and the scope of that waiver is governed by what the employer has voluntarily put at issue. The practical result is that the employee targeted by the investigation gains access to the investigator's factual findings, credibility determinations, and other materials related to the scope and adequacy of the investigation.

The decision potentially levels the playing field by ensuring that members can effectively challenge the very investigations their employers use to justify discipline but then seek to hide behind. California public safety employees deserve nothing less than the ability to test the completeness and fairness of the processes that determine their professional futures.

California Court of Appeal Expands Disclosure of Confidential Police Personnel Records in Pitchess Motions

In a ruling that warrants careful attention from every California peace officer and the unions that represent them, the Court of Appeal in Schneider v. Superior Court (2025) 111 Cal. App. 5th 613 has broadened the scope of materials that must be disclosed following a successful Pitchess motion. The court held that once a trial court identifies Brady material during its in-camera review of an officer’s confidential personnel records, the prosecution is required to turn over not only the names and contact information of potential witnesses but the actual underlying records themselves. This now includes documentary evidence, police reports, audio and video recordings, and any other relevant materials contained within the personnel file.

For decades, Pitchess procedures have functioned as a narrowly tailored safeguard. Pitchess permited limited access to impeachment information while preserving the fundamental confidentiality of officer personnel records. The Schneider decision alters that balance. By mandating production of the full records rather than restricting disclosure to witness identifiers, the ruling exposes a wider array of sensitive internal documents to defense counsel and, in many instances, to criminal defendants. 

What makes this decision particularly troubling is how far it extends beyond the deliberately balanced transparency reforms enacted by the Legislature through Senate Bill 1421 and Senate Bill 16. Those statutes authorize disclosure of personnel records only in cases involving specific categories of serious misconduct, and only after the allegations have been sustained following a complete investigation and after the officer has been afforded a full opportunity to appeal. The Schneider ruling contains none of these safeguards. Instead, it opens the door to compelled disclosure of a much broader range of materials in criminal proceedings, even when the underlying matters involve unsustained allegations or fall well short of the serious misconduct threshold required under the legislation.

Public safety unions have long fought to protect the privacy of these files precisely because they contain highly personal and sensitive information that, if released, could compromise officer safety, reputations, and the integrity of internal administrative processes. The practical consequences for law enforcement personnel are substantial. This ruling increases the liklihood that mere allegations of misconduct and thier investigation, and other confidential materials will enter the public domain through criminal proceedings.  

In individual cases, officers should press for the most restrictive protective orders possible and insist upon rigorous in-camera reviews that limit disclosure to sustained allegations of serious misconduct. While the court’s opinion reflects a legitimate concern for defendants’ constitutional rights, it nevertheless tips the scales too far and creates the potential for unwarranted intrusions of privacy. 

 The decision underscores the continuing need to defend the confidentiality of personnel records as a cornerstone of effective law enforcement operations and the fair treatment of those who ptoect us all. 

Mastagni Holstedt files California Professional Firefighters Amicus Brief in the Ninth Circuit in Support of Judge Donato's Major Ruling Regarding Calculating Firefighter Overtime Rate

In a matter of significant consequence for public safety professionals throughout California, Mastagni Holstedt has filed an amicus curiae brief on behalf of the California Professional Firefighters in the pending Ninth Circuit appeal of David Barnett et al. v. City of San Jose. 

The Honorable James Donato, following a bench trial on stipulated evidence, issued a decision that correctly resolved long-standing disputes over the proper method for calculating the regular rate of pay for salaried firefighters under the FLSA. Specifically, Judge Donato held that the regular rate must be determined using the fixed divisor corresponding to the firefighters’ scheduled hours—224 hours over the 28-day work period—rather than dividing by total hours actually worked. Consistent with the published decision our firm obtained in Padilla v. City of Richmond, (N.D. Cal. 2020) 509 F.Supp.3d 1168, the court further ruled that holiday in lieu payments must be included in the overtime rate. In light of the City’s appeal, our brief respectfully urges the Court of Appeals to affirm this well-reasoned judgment in full.

The district court’s ruling rests on three principal determinations, each of which aligns squarely with the FLSA, its implementing regulations, and binding Ninth Circuit precedent. First, the court properly calculated the regular rate of pay for these salaried firefighters by employing the fixed 224-hour divisor prescribed by 29 C.F.R. § 778.113(a). Because the Memorandum of Agreement establishes a recurring bi-weekly salary intended to compensate a fixed schedule averaging 112 hours—equivalent to 224 hours over the 28-day FLSA work period—the salary methodology, rather than an hourly divisor based on actual hours worked, yields the correct regular rate. This approach prevents the fluctuating and artificially depressed rates that would result from the City’s proposed methodology, particularly in work periods when firefighters, consistent with their 48/96 schedule and frequent unscheduled hours, exceed the average.

Second, the court correctly limited the credit available for the City’s contractual overtime payments to the premium (one-half) portion only. Under 29 U.S.C. § 207(h)(2) and 29 C.F.R. § 778.315, the straight-time component of contractual overtime constitutes wages already owed for hours worked and may not be applied to offset the FLSA overtime premium. The district court’s representative calculation for plaintiff David Barnett illustrated the point with precision: after determining the inclusive regular rate and the FLSA overtime due on hours above the 212-hour threshold, only the 0.5 premium on qualifying contractual overtime hours was creditable, revealing an underpayment of $1,100.83 for a single period. To hold otherwise, the court observed, would systematically underpay straight-time wages and reward the very accounting practices the FLSA was enacted to prevent.

Third, and of particular importance, the court correctly required inclusion of holiday-in-lieu payments in the regular rate numerator. These payments function as compensation for the inherent inconvenience of a 24/7 fire suppression schedule that affords no paid idle holidays, not as excludable remuneration for periods of non-work “due to” a holiday within the meaning of 29 U.S.C. § 207(e)(2) and 29 C.F.R. §§ 778.218 and 778.219. The district court’s analysis, consistent with Padilla v. City of Richmond and the Department of Labor’s 1999 Opinion Letter addressing precisely this issue, confirms that labeling such remuneration “holiday pay” does not render it excludable when it bears no connection to actual idle time. The court further upheld the award of liquidated damages and the issuance of declaratory relief establishing the proper methodology going forward.

Our amicus submission emphasizes the broader ramifications of these holdings for the more than 32,000 career firefighters represented by California Professional Firefighters. A favorable ruling on appeal will preserve a clear, regulation-based framework that harmonizes collective bargaining agreements with the FLSA’s overtime floor. It will eliminate protracted disputes over the proper divisor and crediting rules that have, in the wake of Flores v. City of San Gabriel, frustrated early settlement and out-of-court resolution of claims. Most importantly, affirmance will ensure that salaried firefighters receive the full measure of compensation to which they are entitled for the demanding and often unpredictable hours they work in service of public safety.

The California Professional Firefighters has a vital institutional interest in these issues, and we are gratified to have assisted in presenting them to the Ninth Circuit. Should the Court affirm, the decision will provide persuasive authority across the Circuit, safeguarding reliable funding for firefighting operations while protecting the economic security of the men and women who staff them. We will continue to monitor the appeal closely and will provide further updates as developments warrant.

The proper calculation of overtime is not merely a matter of arithmetic; it is a cornerstone of fair labor relations and the rule of law in public employment.