In a recent case involving termination of a public employee who disclosed confidential information about an ongoing investigation, the Fourth Circuit held that the employee’s termination was not retaliatory-discharge for the employee’s exercise of his First Amendment rights. Billioni v. Bryant, No. 20-1420 (4th Cir. 5/25/21).
Billioni worked for the York County Sheriff’s Office. His wife worked for a local news station. Following the death of an inmate at a county detention center, Billioni disclosed confidential information to his wife about a related investigation that was active at that time.
Billioni eventually confessed to the disclosure and was terminated by YCSO shortly thereafter. According to his termination letter, Billioni was let go for breaching YCSO’s confidentiality policy and for lying during an internal investigation. Following his discharge, Billioni sued the Sheriff, alleging First Amendment retaliation.
To determine whether employment action violates a public employee’s free speech rights, courts apply the “Pickeringbalancing” test. That test has three parts:
1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of public interest; 2) whether the employee’s interest in speaking about the matter of public concern outweighs the government’s interest in providing effective services to the public; and 3) whether the employee’s speech is a substantial factor in the termination decision.
At issue in this case, was the second prong– whether Billioni’s interest in speaking about the investigation outweighed the Sheriff’s interest in keeping information confidential during an ongoing investigation. The Fourth Circuit, affirming the trial court’s decision, held that it did not.
Focusing on facts that suggested Billioni was more concerned with getting colleagues in trouble than in ensuring an appropriate department response, the appellate court assigned limited weight to Billioni’s speech interest. The court also found that the record revealed a “reasonable apprehension of disruption in the YCSO, particularly considering Billioni’s speech propelled a frenzy of media attention about unconfirmed facts related to [the inmate’s] death.” The analysis, the Fourth Circuit concluded, weighed in favor of the Sheriff, rendering Billioni’s speech not protected by the First Amendment.