Parole Officer is Garcettized, Loses First Amendment Retaliation Case

A longtime parole officer for the New York State Department of Corrections and Community Supervision (DOCCS) lost her First Amendment retaliation case before a federal district court.   The ruling shows the unfairness and continued negative impact of the U.S. Supreme Court’s disastrous decision in Garcetti v. Ceballos (2006).

Rita Flynn has worked as a parole officer for DOCCS since 1979.  From 2007 until 2016, she worked as a parole officer handling sex offenders in the Sexual Offenders Management Unit (SOMU).   In September 2016, Flynn learned that a sex offender who had a history of illegal sexual contact with children was due to be released.  This offender, known in court papers only as “John Doe”, was a serial offender and had other issues.

In September and October 2016, Flynn expressed her concerns to her superiors about Doe’s treatment plan upon release.  She also warned that the motel where Doe was to stay housed other sex offenders and was located in an area children.

Flynn voiced her reservations to not only her superiors but also to the New York State Office of Mental Health.   She also told a police chief Doe’s expressed fantasies about sexually abusing a baby.

A doctor at a mental health clinic that treated Doe upon his release told Flynn that Doe was a “ticking time bomb” and “very dangerous.”  Flynn relayed this information to her superiors.

Shortly after expressing these concerns, officials removed Flynn from her special assignment in the SOMU.    Flynn later sued the DOCCS, alleging she was removed from this position and faced other retaliatory actions because of her protected speech speaking out against the treatment plan for Doe.

Flynn’s speech was of imminent public importance.   However, U.S. District Judge Vincent L. Briccetti granted the DOCCS’ motion to dismiss in Flynn v. New York State Dep’t of Corr. & Cmty. Supervision.   The judge’s basis for the dismissal was Garcetti.  In other words, Flynn was Garcettized.

The categorical rule from Garcetti provides that public employees have no free-speech rights for speech made pursuant to their official job duties.  “Here, all of the statements Flynn made were related to her supervision of Doe, and therefore pursuant to her official duties,” the judge wrote.   Her whistleblowing speech all related to her job duties and, thus, she had no First Amendment protection.

This decision shows the absurdity and potential dangerousness of the Garcetti rule.   Public employees certainly should not face retaliation for expressing concerns about the treatment and handling of serial sex offenders.

Hopefully, one day the U.S. Supreme Court will recognize the errors of its ways in Garcetti.

Until then public employees who speak out on controversial or touchy issues remain at risk – and so does public safety.




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