Watch: David E. Mastagni Testifies In Support of Bill Prohibiting Employers from Questioning Union Representatives About Confidential Communications with Unit Employees

    On March 19, 2025, Partner Attorney David E. Mastagni testified before the State Assembly Public Employment and Retirement Committee in support of AB 340 on behalf of the Peace Officers’ Research Association of California (PORAC). AB 340 would prohibit a public agency employer from asking any employee or their union representative about communications concerning workplace matters that are made in confidence between the employee and their representative. 

    The bill safeguards public employees’ union representation by prohibiting invasive employer questioning and compelled disclosures that undermine confidential union communications. It ensures workers – whether peace officers, firefighters, or teachers – can discuss critical issues like safety concerns, overtime grievances, or discipline appeals with their union representatives without fear of employer interference.

Strengthening Union Representation Rights and Codifies PERB Precedent 

    Current state law does not explicitly prohibit employers from compelling employees or their union representatives to disclose what they discussed in private. AB 340 would codify existing Public Employment Relations Board (PERB) decisions, which have long held it's “beyond dispute that an employer’s inquiries into discussions between employees and their union representatives have a tendency to chill the protected activities of both the employees and the representatives.” County of Merced (PERB Dec. No. 2361-M). Merced further held that compelling such disclosure “restrains employees in their willingness to candidly discuss matters with their chosen…representatives” and “prohibits stewards from obtaining the needed information from employees.”

    William S. Hart (PERB Dec. No. 2595) held a District’s questioning of a shop steward about complaints received from bargaining unit members about another member violated the steward’s protected rights and the union’s ability to effectively represent its bargaining unit. PERB noted that “[a]n employer’s legitimate investigation into alleged wrongdoing cannot include quizzing the shop steward about…communications between employees and their union representatives, thereby deputizing the union as the employer’s agent for conducting disciplinary investigations.”

    The bill levels the playing field for public employees by making this protection universal across all public employers under PERB’s jurisdiction. When employees discuss workplace matters, like grievances or adverse actions, with their representatives, they often believe that these conversations are confidential. Keeping these communications confidential remains essential to fostering trust and ensuring effective representation for unit employees. If employees begin to question the confidentiality of their communications with union agents, such fears undermine the core functions of the union and may deter future employees from coming forward with claims of workplace misconduct or other concerted issues. 

    AB 340 enshrines the union representative’s ability to properly discharge its duty because effective representation hinges on privacy; when employers extract details about union communications, they undermine the union’s ability to advocate for its members. Such questioning chills open communications, discourages whistleblowers, provides employers an unfair insight into the union, and can be used to target union leaders.

    Bill opponents argue that the bill creates an evidentiary privilege regarding employee-union communications. The bill is modest and balanced. No such privilege is created. The bill does not alter the evidence code. Rather, it codifies a limited protection against employer compelled disclosures regarding communications made in confidence between a public employee and the representative in connection with representation relating to any matter within the scope of the recognized employee organization’s representation. It is only enforceable through PERB as an unfair practice charge against the employer.

    The bill does not limit the ability of local agencies to conduct thorough investigations, as it has no application to the questioning of percipient witnesses, including union representatives, to the underlying matters under investigation. Only confidential union communications are off-limits. There is also no limitation on questioning a representative who is a witness to the underlying events that are the focus of the inquiry. The bill excludes any application to criminal investigations, and incorporates portions of the Peace Officers’ Procedural Bill of Rights precluding peace officer representatives from being “a person subject to the same investigation.”

    In sum, AB 340 ensures public employees can turn to their unions without employer shadows looming over every conversation. Codifying this protection is a modest but powerful step. California has long led the nation in protecting workers’ rights, and AB 340 enshrines those representational rights into law.

Public Employment Relations Board Reinforces Peace Officer Confidentiality in Personnel Records and Applicability of Pitchess Procedures in Administrative Hearings

On January 31, 2025, the Public Employment Relations Board (“PERB”) issued a decision upholding the dismissal of the California State University Employees Union’s (“CSUEU”) unfair practice charge filed against the Trustees of the California State University – Stanislaus (“CSU”) seeking the disclosure of peace officer personnel records outside of the Pitchess process. On behalf of the Statewide University Police Association (“SUPA”), Mastagni Holstedt partner Kathleen Mastagni Storm filed an informational brief in support of denying the appeal. PERB upheld the dismissal of the charge without leave to amend.

Facts

    CSUEU represented an employee who submitted a formal complaint alleging a peace officer in the SUPA bargaining unit engaged in harassment, disparate treatment, and created a hostile work environment. At CSU’s request, the Stanislaus County Sheriff’s Department (“SCSD”) conducted an independent investigation and created a report. SCSD provided the investigative report to the CSU Stanislaus Chief of Police, and thereafter the Chief of Police forwarded it to CSU human resources representatives. The complaining employee was then given notice that her allegations were not sustained.

    Several months later, CSUEU submitted a request for information to CSU seeking, among other things, a copy of the investigation report. CSU responded to the request stating that “per California Penal Code Section 832.7, [the University] is precluded from distributing copies of SCSD’s report on the matter, absent a court order.” Thereafter, CSUEU asserted that CSU must meet and confer with CSUEU over the confidentiality concerns involved in providing the report and that a failure to do so would provide the basis for an unfair practice charge. After a series of responses from CSU and CSUEU, in which both parties reaffirmed their initial positions, CSUEU filed an unfair practice charge with PERB alleging CSU violated the Higher Education Employer-Employee Relations Act (“HEERA”) when it refused to disclose the investigative report or meet and confer with CSUEU to address its confidentiality concerns.

    The PERB Office of the General Counsel (“OGC”) dismissed the charge for failure to state a prima facie case. PERB’s OGC determined that the report was confidential pursuant to Penal Code section 832.7, and that the report could only be provided through the discovery process described in Evidence Code sections 1043 and 1046. CSUEU appealed the dismissal. In its review of the appeal, PERB concluded that CSU did not violate HEERA by refusing to provide the investigative report to CSUEU.

A Union’s Right to Information

    An exclusive representative is presumptively entitled to information that is necessary and relevant in discharging its representational duties or exercising its right to represent bargaining unit employees regarding terms and conditions of employment within the scope of representation. (Contra Costa Community College District (2019) PERB Decision No. 2652, pp. 16-17; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 17.) PERB has held that investigatory reports relating to hostile work environment claims impacting bargaining unit members are presumptively relevant. However, if such reports contain private information of third parties, PERB applies a balancing test that weighs a union’s need and interest in obtaining the information against the employer or third party’s privacy and confidentiality interest. Typically, an employer may not outright refuse to furnish information based on privacy concern. Instead, the parties must meet and confer in good faith to reach accommodation such as redactions, limiting use of materials, and prohibiting public disclosure.

    Yet, this right to information is further limited if such requested information is protected by the confidentiality of California Penal Code Section 832.7. Such records are “confidential” and “may not be disclosed” save for the procedures outline in the Pitchess statutory scheme. The Pitchess statutes reflected the state Legislature’s intent to balance the discovery of requested information with an officer’s confidentiality interest.

    Penal Code Section 832.7 provides that the personnel records of peace officers…and records…or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except for discovery pursuant to Section 1043 and 1046 of the Evidence Code. (Pen. Code, § 832.7(a).) This statute establishes a general condition of confidentiality that applies beyond criminal and civil proceedings and cannot be circumvented by third parties invoking the California Public Records Act. (Copley Press v. Superior Court (2006) 39 Cal.4th 1272, 1286.)

    According to Penal Code Section 832.7, such confidential information may only be subject to discovery pursuant to Evidence Code Sections 1043 and 1045. The statutes establish procedures for discovery which require a party seeking the records to follow the Pitchess procedures. Such procedures include, among other things, a noticed motion, identification of the proceeding in which disclosure is sought, a description of the records, a time and place at which the motion for disclosure shall be heard, and affidavits showing good cause for the discovery sought. If the court finds “good cause” for the disclosure of the records, the court ruling on the motion must examine the records in camera and determine whether there are portions of the record to be excluded from disclosure.

CSUEU Attempted to Circumvent the Pitchess Procedures for Disclosure

    CSUEU refused to follow the Pitchess procedures; instead insisting the report be disclosed under HEERA and that CSU meet and confer over any privacy concerns.  PERB rejected the argument, explaining that because the peace officer personnel records are confidential pursuant to Penal Code 832.7, the requirement for CSU to meet and confer over privacy interests does not apply. PERB went on to find that on the facts of this case, meeting and conferring over CSUEU’s request for information would have been futile.

    Penal Code Section 832.7 and Evidence Code Sections 1043 and 1045 only permit discovery in the context of a pending hearing. CSUEU did not request the investigation report in the context of any pending action. Rather, it sought the report for the general purpose to better represent its members in future matters. The Supreme Court and PERB find that Penal Code Section 832.7 would be circumvented if it did not apply in the context of a pre-dispute information request. Therefore, CSUEU would need to comply with the Pitchess statutes to obtain a copy of the report. 

    PERB noted that a peace officer personnel record’s exemption from disclosure under CPRA does not render it entirely privileged under HEERA. However, the procedures for disclosure under HEERA must maintain the balance that the Legislature intended with the Pitchess statutes. Still, compliance is not possible without a pending proceeding in which the requesting party may file a motion to establish good cause to receive the records and a hearing officer can conduct an in-camera review prior to disclosure. 

    PERB concluded that an exclusive representative is not entitled to receive records covered by Penal Code Section 832.7 absent compliance with the Pitchess procedures. Given that CSUEU did not adhere to the requisite procedures and there was no pending hearing, the dismissal of the unfair practice charge was upheld. An exclusive representative may only obtain records deemed confidential under Penal Code Section 832.7 by invoking Evidence Code section 1043 in any hearing or arbitration where they are material. 

    This decision upholds the protections of Penal Code section 832.7 and prevents an exclusive representative or employee from undermining the Pitchess procedures through a request for information submitted before any action was pending before a hearing officer. PERB was firm in its refusal to issue a “…complaint alleging failure to provide information merely as a mechanism to assign an ALJ and allow a Pitchess motion to be filed; [finding] such bootstrapping falls outside the substantive and procedural boundaries of the confidentiality exception explained in the above-referenced jurisprudence.”  (California State University Employees Union v. Trustees of the California State University (Stanislaus) (2025) PERB Decision No. 2940-H at p. 16.)

SCOTUS Update: Law Enforcement Groups Again File Brief in Support of Petition for Certiorari to the U.S. Supreme Court to Review Excessive CCW Carry Restrictions

 On February 18, 2025, the Peace Officers’ Research Association of California, the California Association of Highway Patrolmen, the California State Sheriffs' Association and the Crime Prevention Research Center (CPPC) filed an amicus brief in support of a Petition for Certiorari to review the constitutionality of New York’s new concealed carry law, which severely restricts the places CCW permit holders may carry concealed handguns much like California’s Senate Bill 2 (SB 2).  

 The brief is in connection to the U.S. Supreme Court case of Ivan Antonyuk, et al. v. Steven James, the Acting Superintendent of the New York State Police, et al. The case challenges New York’s Concealed Carry Improvement Act (CCIA), a revised gun law adopted in New York in July 2022 – only days after the Supreme Court’s landmark ruling in New York State Rifle & Pistol Association Inc. v. Bruen (Bruen). These law enforcement Amici had previously filed a similar brief in support of review on March 25^th, 2024, as well as an Amici Curiae brief in the United States Court of Appeals for the Ninth Circuit regarding a  California law, Senate Bill 2.

The Second Circuit issued a new opinion upholding most of New York’s “Concealed Carry Improvement Act” in an opinion issued after remand, which is nearly identical to the opinion vacated in light of United States v. Rahimi, 602 U.S. 680 (2024). Both the Second Circuit and the Ninth Circuit opinions upheld the majority of the respective restrictions on carry locations, disregarding the U.S. Supreme Court's warning against “expanding the category of ‘sensitive places’ simply to all places of public congregation that are not isolated from law enforcement” and “effectively declar[ing] the island of Manhattan a ‘sensitive place.’” Bruen at 2134.  

Bruen held “only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” Id. at 2126. This Court identified “settled” sensitive places, such as “legislative assemblies, polling places, and courthouses,” where the carrying of firearms may be prohibited and directed lower courts to “use analogies to those historical regulations” to determine if new sensitive places restrictions are constitutionally permissible. Id. at 2133. Defying these Constitutional commands, New York and California expanded longstanding sensitive place definitions to encompass nearly their entire states, other than some streets and sidewalks. 

The Amici have an important interest in the Supreme Court correcting the Second Circuit Opinion to promote judicial economy, ensure a uniform interpretation of the Second Amendment, and uphold the principle of equal treatment under the law. The Ninth Circuit issued a consolidated opinion addressing SB 2 in Wolford v. Lopez, 116 F.4th 959, 970 (9th Cir. 2024), which upheld more restrictive California and Hawaii laws modeled after the NY law. The Ninth Circuit created a split from the Second Circuit and every other district court by upholding the reversal of the consent presumption that permit-holders may carry on private property. This restriction is commonly know as the vampire rule, wherein CCW permit holders cannot carry on private property without advance permission.  

The issues presented in this appeal are of national concern. The constitutionality of restrictions on where concealed carry may be prohibited is a serious national concern, particularly for the Sheriffs who issue the permits and the officers that must enforce constitutionally suspect laws.  Forcing officers to potentially violate citizens’ civil rights will subject officers to section 1983 liability and damages public confidence in law enforcement. Moreover, officers have a direct interest in protecting their own right to self-defense and concealed carry in their retirement. 

Attorneys David E. Mastagni, Taylor Davies-Mahaffey, and Timothy Talbot authored the brief. 

Ninth Circuit Ruling Prompts Refusal to Respond to Mental Health Calls

Because of a new ruling from the Ninth Circuit Court of Appeals, some firefighters and other first responders are finding themselves left without police backup as more and more departments are saying that they will no longer dispatch officers to certain 911 calls. The Sacramento County Sheriff announced Tuesday his deputies will no longer respond to mental health calls where a crime is not being committed. The shift in policy comes, Sheriff Jim Cooper said, after a 2024 ruling by the Ninth Circuit Court of Appeals in Scott v. Smith, 109 F.4th 1215 (2024).

Such circumstances create a dilemma for firefighters and medical providers: people need their help urgently but now, without law enforcement to secure the scene, they must potentially risk working in an unsafe environment.  But why is this happening? The source of this particular issue stems from the Ninth Circuit Court of Appeals ruling that expands officers' potential liability when restraining a subject suffering from a mental health crisis.

The Facts

Roy Scott dialed 911 on March 3, 2019, claiming people were outside his apartment with a saw. Police officers Kyle Smith and Theodore Huntsman were the first to arrive, with dispatch alerting them that Scott was mentally ill. When they arrived at the apartment, they knocked and identified themselves, remaining outside despite Scott’s urgings for them to “break the door down.” After a few minutes they came to the conclusion that Scott was indeed suffering from a mental illness. After about 7 minutes from their arrival, Scott opened the door holding a metal pipe.

The officers retreated from Scott and ordered him to drop the pipe, which he did. Scott was clearly disoriented. The officers ordered him to stand by the wall and asked if he had any more weapons. Scott complied and produced a knife, apologizing whilst he did so, and handed it handle-first to Huntsman without making any threatening gestures. At this point Scott informed the officers that he had paranoid schizophrenia. Scott repeatedly insisted he was not fine and requested to be put in the patrol car. The officers at this point knew that Scott was clearly distressed and qualified for a “medical hold.”

The officers then pulled Scott to the ground, while Scott yelled and struggled, he was rolled onto his stomach with his arms restrained behind his back. Then, Huntsman put his body weight on Scott’s back and neck for about 1-2 minutes while Smith put his weight on Scott’s lower body. After handcuffing and rolling him over, Scott’s face was bloody from thrashing against the ground, and he stopped yelling. He did not respond to the officers’ attempts to wake him up and was soon pronounced dead from restraint asphyxia.

Scott’s daughter sued under the Fourth Amendment for violating Scott’s right to be free from excessive force and the Fourteenth Amendment for violating her right to familial association (basically depriving her of a family member). This blog’s focus is on the Fourth Amendment.

Fourth Amendment Claim – Excessive Force

The Fourth Amendment states that police may only use force that is objectively reasonable under the circumstances. In order to decide what is “objectively reasonable” courts look to 3 different factors to see whether, from the perspective of a reasonable officer in that moment (and not using hindsight), the actions were reasonable. The 3 factors are (1) how badly did the use of force violate the Fourth Amendment (2) did the government have a good reason for using this force (for example, were the police trying to stop an active crime), and (3) a balancing act between the first two factors, namely, how badly the Fourth Amendment was violated versus how important it was that the government use that force. 

Factor One: Type and amount of force used and how badly that violated the Fourth Amendment

In order to decide if the force used by the police was okay, the court looked at both the level of risk that physical contact would cause harm as well as the actual harm that was actually inflicted. Here, they found that the police officers used deadly force because bodyweight compression was applied to Scott’s back and neck for 1-2 minutes while Scott became increasingly breathless. This is in line with a prior case, Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1056–57 (9th Cir. 2003), where officers went too far when putting their weight on someone’s neck while they were restrained on the ground.

Factor Two: Did the government have a good reason to use this force

The court here looked to, among other things, whether a crime was being committed, whether the suspect was trying to escape or resist arrest, and whether the suspect was a danger to police officers or anybody else. Espinosa v. City and County of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). The court also stated that when dealing with someone with only mental health issues, the government’s interest is going to automatically be limited because they are not dealing with a criminal. Even if the person with mental health issues is acting out. 

The court found that the government did not have a good reason for using force because Scott was not suspected of committing a crime, he listened to officer instructions, and, even though he had two weapons, he did not brandish them and instantly handed them over and submitted to police control. The court also said his struggles were not considered resisting arrest because he did not threaten to or attempt to attack the police. Lastly, because the court thought less intrusive alternatives to bodyweight force were available, they did not believe the police had a good reason to use the level of force that they did. 

Factor Three: Balancing Interests

Lastly, the court looks to see whether the amount of force used by the police officers was necessary. The court here quickly concludes that the bodyweight hold was not necessary because they said that deadly force is not needed to restrain a person with mental health issues so that they can be put into a mental health hold.

Because Scott’s Fourth Amendment Rights were violated, and the police officers had good reason to know that these actions would violate Scott’s rights based off of the existing caselaw, the court ultimately held that qualified immunity does not apply here.

Conclusions

Scott v. Smith imposes a regrettable restraint on first responders’ ability to act. As a result of this decision, law enforcement agencies and officers are now faced with bad choices when responding to people with mental health issues. They can attempt to restrain the subject and secure the scene and risk losing qualified immunity, or direct officers not to respond. 

With qualified immunity now able to be stripped away on a case-by-case basis, agencies are understandably hesitant to secure the scene for firefighters and other first responders to do their work safely and efficiently even when there is no crime or threat of violence. Sacramento Metropolitan Fire Department spokesperson Parker Wilbourn expressed his desire for “either a legislative effort or the courts to make a decision.”  Hopefully, this decision will be reversed.  

Chief of Police Forced Out After Sending Racially-Charged Private Messages: Ninth Circuit Finds No First Amendment Violation by the County as Chief's Speech Not Protected by the First Amendment

    In September of 2024, the Ninth Circuit Court of Appeals ruled that a public employee’s private text messages were not protected under the First Amendment. A former California Chief of Police appealed after the  district court dismissed her  First Amendment retaliation and derivative conspiracy claims. Prior to becoming the Police Chief, , she engaged in a private text conversation in 2013 with a then-friend and coworker in which she shared two images that she received from an undisclosed source. Along with the images, she shared the message “Some rude racist just sent this!!” The images contained a racist epithet and slur. That same day, she forwarded the images to another coworker and then-friend. The messages were not disclosed nor made readily discoverable by the general public. It was clear that the messages were intended for a purely private audience in the context of private conversational exchanges. Several years passed before one of the recipients of the images reported the exchange in retaliation of disciplinary action taken against them by the chief. The Chief was pressured to and did ultimately resign..

    In 2022, she filed suit claiming, among other things, deprivation of the right to free speech under the First Amendment and First Amendment conspiracy. The district court dismissed her complaint for failure to state a claim of a First Amendment violation, holding that Adam’s speech was not a matter of public concern.

First Amendment Analysis

    Public employees do not surrender their First Amendment rights merely by virtue of their position. The First Amendment prohibits government officials from disciplining public employees for having engaged in protected speech. In analyzing whether a public employee’s speech is protected under the First Amendment, courts employ a balancing test established by the United States Supreme Court in Pickering v. Board of Education (1986) 391 U.S. 563. Under Pickering, a plaintiff claiming a violation of their First Amendment rights must establish that: (1) she spoke on a matter of public concern, (2) she spoke as a private citizen rather than a public employee, and (3) the relevant speech was a substantial or motivating factor in the adverse employment action. If the public employee meets this burden, the employer must then demonstrate that it had an adequate justification for treating the employe differently than other members of the general public and that it would have disciplined the employee even absent the protected speech. In short, to show that one’s speech is protected by the First Amendment, a public employee must prove that they spoke as a private citizen on a matter of public concern. The public employee must then prove that the public’s collective interest in the speech outweighs the governmental interest in avoiding disruption to its operations that could or would be caused by that speech.

    In this case, the Court framed the threshold question as whether the statements substantially addressed a matter of public concern. If speech does not do so, there is no actionable cause under the First Amendment. To determine whether a public employee’s speech is a matter of public concern, the court considers the “content, form, and context of a given statement as revealed by the whole record.” (Connick v. Meyers (1983) 461 U.S. 138, 147-48.) Speech involves a matter of public concern when it can be fairly considered to relate to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest. (Lane v. Franks (2014) 573 U.S. 228, 241.) The content of the communication must be of broad societal concern. If the speech concerns only personal or private interest, an action based on a violation of the employee’s First Amendment rights is not the appropriate method of challenging agency discipline. Restricting speech on purely private matters does not implicate constitutional concerns.

    Speech regarding matters of race, religion, or other such topics are a matter of public concern when they involve the public’s interest in governmental conduct that affects society as a whole. (Alpha Energy Savers, Inc. v. Hansen (9th Cir. 2004) 381 F.3d 917, 926-27.) Conversely, speech that complains of private, out-of-work, offensive individual contact by unknown parties, as is in this case, is not of public concern. Additionally, inappropriate or controversial character of a statement is irrelevant to the Pickering analysis.

    The Court determined that the text messages were of private interest, not of public concern. The text messages and distribution of the images expressed only her opinion on being sent the messages, which is a purely private matter. The messages did not discuss generally applicable policies and practices, nor did she suggest that her receipt of the messages was connected to wrongful governmental action. When addressing why she made the speech, the court concluded she intended the messages to be entirely private, conversational in nature, and only meant to convey a personal grievance about receiving offensive images. As such, the district court’s dismissal was affirmed. The court acknowledged dismissal may be unfair, but it cannot be challenged as a violation of her freedom of speech.

    Conversely, the Civil Service Commission of Massachusetts determined that an off-duty Boston Police Officer’s private tweets regarding the January 6^th, 2021, rally in Washington D.C. were protected and the disciplinary action taken against the officer on the basis of the tweets was actionable under the First Amendment. (Abasciano v. Boston Police Department (December 24, 2024) Civ. Serv. Comm. D1-23-033.) The plaintiff in this case was discharged by the Boston Police Department for tweets published from an anonymous twitter while attending the rally. The tweets were sent while the officer was off-duty, from a private account, and they did not identify the plaintiff or his employment with the Boston Police Department.

    The rules and procedures of the Department permitted employees to express political opinions and attend political conventions and rallies. Throughout a series of tweets, the officer publicly commented on the rally, shared his opinions on various political figures and authorities, and generally called for patriotism. Following Pickering, the commission determined that because the tweets were sent as a private citizen, there was nothing to indicate that the plaintiff was acting in his official capacity as a police officer, and the tweets were matters of public concern as they pertained to broad commentary on politics, they were protected. As such the Department was then required to provide justification to restrict the speech. This aspect of the Pickering balancing test is comprised of two prongs: (1) the inflammatory nature of the speech, and (2) whether the speech could reasonably be expected to interfere with Department functions. Several officers testified affirming that it was unlikely that the content and nature of the tweets would interfere with his ability to perform his official duties. As such, the commission ruled in favor of the plaintiff officer and deemed his discharge to be in violation of his First Amendment rights.

    In sum, public employees must be conscious of speech made both in private and in public. Private speech is not protected by the First Amendment but may nonetheless provide the basis for administrative discipline. Alternatively, public speech by a public employee is protected by the First Amendment only when it is clear the speech is made by the officer in their personal, not official, capacity; the speech regards a matter of broad public concern; and the employing agency does not have a greater interest in preventing the speech for the sake of administrative efficiency.