County Employee’s Sworn Testimony Not Protected Speech, 10th Circuit Says
San Miguel County worker claimed his demotion violated First Amendment rights

by Law Week

When government workers testify in court as private citizens, is their sworn testimony protected from workplace retaliation under the First Amendment? Not necessarily, according to an appellate ruling published March 29.

The 10th Circuit Court of Appeals found that it wouldn’t be a free speech violation for a San Miguel County agency to demote an employee because of testimony he gave in court. In Butler v. Board of County Commissioners, a panel ruled 2-1 that plaintiff Jarud Butler’s testimony, which he gave in his sister-in-law’s child custody hearing, didn’t qualify as protected speech because it wasn’t on “a matter of public concern.”

While the 3rd and 5th circuits treat all truthful sworn testimony by public employees as a matter of public con- cern, the 10th Circuit majority held free speech protection depends on the content of that testimony “on a case- by-case basis.” With this finding, the panel affirmed the district court’s dismissal of Butler’s lawsuit against the San Miguel County board.

In a statement to Law Week, Butler’s attorneys called the decision “a significant departure from First Amendment precedent” and noted Circuit Judge Carlos Lucero’s dissent. The rm, Killian Davis Richter & Mayle in Grand Junction, also said it in- tends to petition the 10th Circuit for a rehearing en banc and for certiorari to the U.S. Supreme Court.

The arguing counsel for the San Miguel Board of County Commissioners didn’t respond to a request for comment.

When public employees claim their employer violated their free speech rights, federal courts use a multifaceted test to decide whether the workers’ speech was actually protected. The Garcetti-Pickering test, spawned from the U.S. Supreme Court’s decisions in Garcetti v. Cebal- los and Pickering v. Board of Education, analyzes that right in five steps. The 10th Circuit was focused on the step requiring that the speech be on a matter of public concern.

The question was whether the private nature of the custody hearing was nonetheless “public” enough to warrant free speech protection under the Supreme Court’s test. Chief Judge Timothy Tymkovich and Senior U.S. Circuit Judge David Ebel decided it was not.

“Although Butler’s testimony involved a matter of great significance to the private parties involved in the proceeding, it did not relate to any matter of political, social or other concern of the larger community,” according to the majority opinion by Ebel.

In September 2016, Butler was promoted to a district supervisor position at the San Miguel County Road and Bridge Department and then demoted within weeks. In between, he had testified in his sister-in-law’s child custody case against her ex-husband, who happened to work in the same department as Butler. “Butler testi ed as to the hours of operation for the [county department] among other things,” as Senior U.S. District Judge Wiley Daniel recounted in his December 2017 order to dismiss the case.

Butler’s supervisors conducted an investigation into his testimony, after- ward issuing him a written reprimand and a demotion. He then sued them

alleging free speech violations, and Judge Daniel would dismiss the complaint finding no constitutional violation that would overcome the supervisors’ qualified immunity.

“Butler has not shown that the personal nature of a family member’s child custody dispute is the subject of general interest, value, and concern to the public,” Daniel wrote in the order.

On appeal, the 10th Circuit majority reached a similar conclusion.

Quoting the 2014 Supreme Court decision in Lane v. Franks, the majority framed speech to be involving public concern when it “relat[es] to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest.” With its 2011 decision in Leverington v. City of Colorado Springs, the 10th Circuit’s own precedent tells its courts to “construe public concern very narrowly.”

Butler argued that a government worker’s truthful testimony should always be considered a matter of public concern.

In case that argument failed, Butler also contended that his testimony relates to a public concern anyway be- cause it was in a proceeding involving child welfare.

To read this story and other complete articles featured in the April 8, 2019 print edition of Law Week Colorado, copies are available for purchase online.