In a surprise for free speech advocates, city police department employees fired after filing a report critical of the department may proceed with a lawsuit asserting their terminations violated the First Amendment and the Kentucky Whistleblower Act, the U.S. Court of Appeals for the Sixth Circuit rules in an unpublished opinion.
Writing for the 2-1 majority, Judge Clay says under precedent from the
Kentucky Supreme Court, the city of Jeffersontown was the former "employer" of
Melvin Kindle for purposes of the whistleblower law. Clay writes that the
district court had also erred in granting summary judgment as a matter of law
to the city on the First Amendment claim because Kindle's misconduct report was
on a "matter of public concern." Clay vacated and remandsed the case to the
district court for further proceedings.
Judge Guy dissents, writing that he would have certified the state law
question to the Kentucky Supreme Court, and that Kindle's report was on purely
internal personnel issues and not of public concern. There is nothing stunning or innovative about the majority or dissent opinions, but it is increasingly rare for public employees to exercise free speech related to their jobs, or even off their jobs, so this case comes as a pleasant surprise.
Kindle v. Jeffersontown, 6th Cir., No. 09-5119, unpublished opinion 3/15/10
