Alaska Employment Law

Manual instruction to “enforce all laws” doesn’t satisfy Garcetti

In Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), the Supreme Court held, generally, that the 1st Amendment doesn’t protect public employee speech required by the employee’s job responsibilities.  That holding triggered fears that public employers could immunize themselves from retaliation claims by drafting needlessly broad job descriptions.  The 9th Circuit today somewhat allayed such fears. 

Ken Marable worked as an engineer for the Washington State Ferries.  After he reported allegedly corrupt and wasteful practices to management, the Ferry system disciplined him.  He sued under § 1983 and various state laws.

The 9th Circuit has now reversed the District Court’s summary judgment that Marable’s complaints were unprotected speech.   Judge Gould (with Kleinfeld and Gould) stated:

Marable’s formal job description is perhaps not dispositive.   Functionally, however, it cannot be disputed that his job was to do the tasks of a Chief Engineer on his ferry, and such tasks did not include pointing to corrupt actions of higher level officials whom he purportedly thought were abusing the public trust and converting public funds to their own use by overpayment schemes. 

Making the practical inquiry on Marable’s job duties, which we think is required by the Supreme Court’s reasoning, we conclude that Marable had no official duty to ensure that his supervisors were refraining from the alleged corrupt practices.  While the WSF Human Resources Safety and Training Manual’s description is not dispositive, it is informative. As a Chief Engineer for WSF, Marable was “in full charge of [his ferry’s] Engine Department . . . .” His official duties all related to “ensuring that all machinery aboard [his] vessel, both mechanical and electrical, . . . [wa]s properly maintained and serviced” i.e., he was responsible for ensuring that his ferry’s physical machinery functioned properly and safely. He was not responsible for attempting to ensure that his superiors abstained from allegedly corrupt financial schemes. ¹³

[Fn. 13] Defendants rely in part on broad language in the WSF training manuals to argue a different conclusion. However, as suggested, the mere fact that the WSF’s official Chief Engineer manual includes catch-all provisions such as that Marable, as a Chief Engineer, “[k]now and enforce all applicable federal and state rules and regulations” does little to inform our analysis. As the Supreme Court stated in Ceballos—in which there was no question but that the plaintiff’s internal memorandum was pursuant to his official duties, Ceballos, 126 S. Ct. at 1960— “[w]e reject . . . the suggestion that employers can restrict employees’ rights by creating excessively broad job descriptions. The proper inquiry is a practical one [into] . . . the duties an employee actually is expected to perform . . . .” Id. at 1961-62 (internal citations omitted). Additionally, defendants urge us to conclude that the relevant speech falls within Marable’s official duties because of the communications’ purported links to safety issues.   However, defendants’ argument is unconvincing because Marable’s duties as Chief Engineer in charge of the engine room only concerned safety insofar as he was required to ensure the safe operation of the ferry’s mechanical systems.

Marable v. Nitchman, 2007 WL 4561144 (9th Cir. Dec. 26, 2007)

Comment:  It’s tempting to infer from this opinion that front-line, blue collar public employees will rarely fall into the Garcetti exemption from 1st Amendment protection.