By: Loyd Willaford and Matt Baker
In Helget v. City of Hays, a former administrative secretary to a police department claimed that her First Amendment rights were violated after she was terminated for testifying about confidential information. The department argued that the speech was not protected because it did not touch on a matter in the public interest and it disrupted department functions. The Tenth Circuit Court agreed and dismissed the administrative secretary’s claims.
Firma Helget worked as an administrative secretary at the City of Hays Police Department. As the Department’s purchasing agent, she was tasked with buying new ballistic vests for the officers. The Assistant Police Chief instructed her not to purchase a vest for one of the officers, an officer who organized union activity. About a month after this order, the officer was terminated, supposedly over a separate incident. The officer sued the Department and contacted Helget, who signed an affidavit showing that the Department had instructed her not to order the ballistic vest before the incident occurred. Helget was subsequently terminated by the Department due to the loss of trust in her ability to keep confidential information and the need for the Department to be able to share confidential information with her.
Helget argued that her speech (the affidavit) was protected and that her termination was a violation of her First Amendment rights. The City claimed that the Department was within its rights to terminate her because she was an employee trusted with confidential information and her disclosure disrupted the ability of the Department to function. In deciding between the free speech interests of Helget, the employee, and the City, her employer, the 10th Circuit applied the balancing test used in similar cases. The court held that Helget had less of a free speech interest in making the affidavit than the City did in maintaining confidentiality:
Helget’s chosen form of speech was disruptive, and her interest in making the statements should be discounted accordingly. Considering the circumstances as a whole, we agree with the district court that the City’s strong interests as a public employer outweigh Helget’s interest in supplying an affidavit in a former employee’s litigation.
The court emphasized that such balancing is done on a case-by-case basis, and that the facts in this case skewed in favor of the City. A core interest of the City is to keep its organizations running efficiently, whereas the voluntary affidavit was not a core interest of Helget.
This case is an example of how some Courts use a balancing test to improperly weigh evidence to protect a public employer from lawsuit. Here, the Court took at face value the City’s claim that divulging information about the purchasing of ballistic vests somehow so impaired the ability of the department to function that it outweighed Helget’s free speech rights.
The Court did not mention the chilling effect decisions like this have on public employees who wish to testify truthfully when asked to do so. The Court mentioned the fact that the Helget did not approach the department internally before disclosing the information. The Court also gratuitously mentioned that Helget has been disciplined in the past and was apparently looking for a job, thus, implying without saying directly, that she had an improper motive in disclosing the information.
These are things which should have had nothing to do with whether Helget should be able to exercise free speech rights without fear of retaliation. Even assuming these things were relevant, they were are all questions that a jury could have weighed when deciding whether Helget was justified in disclosing the information. The Court improperly weighed inferences from these facts in favor of the City and dismissed Helget’s suit.
The lesson for potential whistleblowing plaintiffs is that, before releasing information that might be damaging to a public employer, informing the employer that you are going to do beforehand may be a way of avoiding the argument that the speech is too disruptive.
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