By Erica Shelley Nelson and Sarah Burke
In Howell v. Town of Ball, a former police officer in Louisiana, alleged he was fired for cooperating with an FBI investigation of public corruption. The Fifth Circuit overturned the district court in finding that the officer was entitled to First Amendment protection for his cooperation.
Thomas Howell was a police officer for the town of Ball, Louisiana. In 2008, while serving as a police sergeant, Howell became aware that Ball’s mayor, Roy Hebron, had fraudulently obtained FEMA funds. Howell expressed to the FBI that he had pertinent information he wanted to give them regarding the fraud. Howell was able to give the FBI this information and later became a confidential informant.
The investigation was successful. On September 25, 2009, Mayor Hebron and four other Ball employees, including Police Chief Jay Barber, were indicted for crimes related to the FEMA fraud.
A new police chief was appointed, but when the chief learned of Howell’s involvement, he began to harass him in retaliation for helping with the FBI investigation. The chief began to ask Howell if he was wearing a wire and made him unbutton his shirt to confirm he was not on one occasion. In May 2011, Howell heard rumors that the chief had started a departmental investigation into allegations that Howell had stolen a USB flash drive from a coworker’s foot locker. When Howell confronted the chief about this, the conversation took a turn for the worse and Howell was fired.
Howell argued that his termination was because of his cooperation in the FBI investigation and a violation of his First Amendment rights. The Town disagreed, arguing the termination was for a valid reason.
In order for a plaintiff to prevail on a First Amendment claim, a plaintiff must establish that:
(1) [H]e suffered an adverse employment decision; (2) his speech involved a matter of public concern; (3) his interest in speaking outweighed the governmental defendant’s interest in promoting efficiency; and (4) the protected speech motivated the defendant’s conduct.
While the district court found Howell could not succeed on this claim, the Fifth Circuit disagreed. Instead, the Fifth Circuit held that:
Howell had shown that his involvement in the FBI investigation was not within the ordinary perimeters of his job duties, and thus that his involvement in the FBI investigation was a protected First Amendment right.
In summary, because the officer was able to show that his role as an informant was outside the scope of his regular employment duties, the Fifth Circuit found he could proceed to trial with his claim.
There were several good facts in this case that likely persuaded the court.
Proving adverse actions taken by an employer are connected or on the basis of the protected speech can be challenging.
The first good fact in showing this connection in this case is that after the FBI investigation and the termination of the police chief, the new chief took action against Howell that was directly related to his involvement in the FBI investigation. For example, the chief’s checking to find out if Howell was wearing a wire shows that the chief picked on Howell because he provided information to the FBI as part of the investigation.
The chief’s actions in checking for a wire coupled with the other adverse taken by the chief certainly strengthen Howell’s argument that he was singled out because of his protected speech.
The second good fact is that there is no question that his speaking out on corruption within the town and department is a very important matter of public concern. And Howell was doing his part as a public servant in exposing the corruption to the public, which probably carried some weight in the court ruling his case could move forward to trial.
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