Tuesday, May 14, 2013

Ninth Circuit: First Amendment Protects Peace Officer Labor Leaders from Retaliation

In Ellins v. City of Sierra Madre (Mar. 22, 2013) 2013 WL 1180299, the Court of Appeals ruled it is unconstitutional for an employer to retaliate against a peace officer union president for comments made as part of his role as union president.

The case involved John Ellins, a Sierra Madre police officer who led a no confidence vote of the police officers union against the Chief of Police, Marilyn Diaz. Then, Diaz delayed granting Ellins a certification that would result in a 5% raise. Ellins sued alleging the delay was an unconstitutional retaliation for the exercise of his first amendment rights. While waiting for the approval of his raise Ellins served a suspension he received years before. During the trial the city granted his pay-raise and backdated it to the date Ellins completed his suspension.

The court ruled Ellins is protected by the first amendment because comments made by a police officer acting as a union representative are not pursuant to the officers' official duties. Hence the officer is speaking as a private citizen. Furthermore, even though his pay-raise was backdated Ellins still suffered an “adverse employment action”. The court reasoned that an adverse employment action exists whenever any economic benefit is withheld for any amount of time.

The court then concluded that the proximity in time of the adverse employment action and the protected speech was enough to infer the possibility of retaliation. However, the court did not find retaliation on its own and ordered that a trial be held on the issue.