A former deputy with the Saginaw (Mich.) County Sheriff’s Department lost an appeal of his First Amendment case before a federal appeals court panel because his whistleblowing-type speech fell within his official job duties. The panel found that his claim fell within the large reach of the U.S. Supreme Court ruling in Garcetti v. Ceballos (2006).
Garrett DeWyse served as the Sheriff’s Department’s property-and-evidence-room manager. After a detective had seized more than $22,000 in cash during a narcotics investigation, and much of the money was forfeited to the department, the detective asked DeWyse to release $2,000 for controlled-substance buys.
DeWyse refused but released the money after a lieutenant ordered him to do so. The detective then returned to the property room and made several withdrawals.
Later, the sheriff asked DeWyse to compile an annual report to the State of Michigan on the department’s civil-forfeiture activities. During this work, DeWyse came to believe that funds had been mishandled and that the detective’s actions were illegal. He told the finance director in the city Comptroller’s Office about the alleged malfeasance.
DeWyse contends that he was reprimanded and removed from the property room after his complaints. After transferring to another law enforcement job, he filed a federal lawsuit, alleging a violation of his First Amendment free-speech rights.
A federal district court dismissed the lawsuit, ruling that DeWyse’s speech was part of his official duties within the meaning of Garcetti.
On appeal, a three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed in its Oct. 9, 2020, decision in DeWyse v. Federspiel. The panel reasoned that DeWyse’s speech about the mishandling of funds was part of his job duties.
DeWyse argued that his comments to the Comptroller’s Office were technically outside his chain of command and, therefore, not part of his official job-duty speech. However, the panel noted that DeWyse had been instructed to speak to the Comptroller’s Office and the subject matter of his speech related to his official job duties.
“It makes no difference whether DeWyse communicated with [the finance director] in the context of the special audit role [the sheriff] assigned him rather than in his customary role as property room manager,” the panel wrote, saying that ad hoc or de facto duties still constitute official job duty speech.
The panel noted that DeWyse had a “laudable intent” in disclosing possible misuse of funds. “But in this public employment setting laudable intent alone is not enough to secure First Amendment protection,” the panel concluded.
The decision shows the continued power and reach of the Garcetti decision, which continues to wreak havoc on public employee’s free-speech claims.
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of First Amendment: Freedom of Speech (2012), of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and of a 24-part lecture series, The American Constitution 101 (2019).