Court: Maricopa County worker’s talk with reporter was not protected speech
By Joseph Guzman, Cronkite News | Thursday, Feb. 23, 2017
WASHINGTON – A federal appeals court ruled Thursday that the Maricopa County Attorney’s Office did not violate the First Amendment rights or employee contract of a former worker it terminated following comments she made to the Arizona Republic.
A three-judge panel of the 9th U.S. Circuit Court of Appeals rejected a lower court’s finding that the attorney’s office improperly fired Maria Brandon in retaliation for a statement she made to a reporter on a Maricopa County Sheriff’s Department case she was working on.
The court also reversed the lower court’s finding that county risk management officials had interfered with Brandon’s employment contract by asking the attorney’s office to reassign some of her cases to other lawyers in the office.
Lawyers who represented the county attorney’s office declined to comment on the ruling Thursday. Brandon’s attorney was not immediately available for comment.
Brandon had worked as a civil litigation attorney in the county attorney’s office for several decades before leaving in 2009 to join a special litigation department that Maricopa County formed to step in for the attorney’s office “in certain civil lawsuits,” the court case said.
It was while there that Brandon spoke to a reporter regarding the settlement of a lawsuit on which she was the attorney of record, which involved claims of brutality by the sheriff’s department toward protesters.
The article suggested that the county “made an overly generous settlement offer to prevent embarrassing certain county officials who might have been required to answer questions in depositions.”
When asked about the size of the settlement, Brandon was quoted in the article as saying, “I don’t know why they did what they did, and I’m sure they have their reasons.”
The special litigation was dissolved in 2011, after state courts ruled that the county could not reassign legal work outside the county attorney’s office. Brandon was rehired by the county attorney’s office on a probationary contract, during which time risk management officers concerned by her comments to the reporter asked that she not be allowed to handle cases “in which the county was a party and which involved risk management.”
Brandon was let go during her probationary period back at the attorney’s office for what the court said was an altercation with another employee.
Brandon sued on claims that the county failed to follow proper procedures or due process in her firing, that the reassignment of her work “interfered with her employment contract” and that the firing was retaliation for her exercising her First Amendment rights.
A jury rejected the first two claims but agreed with her on the free-speech claim and the claim that work reassignment interefered with her contract, awarding damages of $1 on the first and $638,147 on the second.
A district court judge denied the county’s request for a new trial and awarded Brandon $302,175 in attorney’s fees.
The county appealed and the circuit judges reversed, rejecting all of Brandon’s claims.
In the opinion, Circuit Judge Carlos T. Bea wrote that Brandon’s speech is not protected when she acts in her role as a Maricopa County public employee. Bea said Brandon’s comments to the reporter fell into that category because they “involved a case she worked on as a county employee, discussed her work product and the comment was made on her county office phone in response to a call during business hours.”
Bea also said the decision to take cases out from under Brandon’s control was proper, since the risk management office was concerned about her conduct and “has a legally protected interest in ensuring that the MCAO provided quality legal services to the county.”
“Brandon publicly commented on a sensitive and ongoing county legal matter they reasonably perceived as unprofessional and betraying her duty of loyalty,” Bea wrote of the county officials. Asking for the removal of a lawyer “reasonably perceived as a liability to the county certainly cannot be considered an improper means for protecting the county’s legitimate legal interests.”