Fed. Dist. Court in Co dismisses First Amendment retaliation claim brought by whistleblower municipal attorney

This post was authored by Amy Lavine, Esq.

In rulings issued in 2022 and 2023, the District Court for the District of Colorado dismissed First Amendment retaliation claims that were brought by the attorney for a sanitation district against several of the district’s board members and related parties. The attorney had repeatedly advised the board members that it was illegal for them to meet privately and delete emails related to ongoing lawsuits against the board, but she claimed her advice was disregarded. Eventually, she came to believe that the board members’ behavior had created substantial and unjustifiable legal and financial risks to the district and its citizens, and she began to speak about the district’s alleged corruption at public meetings and when asked for comments by reporters. In retaliation for her public comments, however, she alleged that the board members withheld her pay, published disparaging blog posts about her, and eventually secured her termination.

After being fired, the attorney sued the board members for defamation and First Amendment retaliation, but the court agreed with the board defendants that her speech fell within the scope of her employment and was therefore unprotected under the Supreme Court’s Garcetti-Pickering test. As the court explained: “Although statements regarding the District Defendants’ own allegedly improper and illegal conduct may concern an ‘unusual aspect’ of Ms. Timmins’ job, the statements involved the type of activities Ms. Timmins was paid to do as the District’s general counsel—provide the District Defendants with legal advice.” The court also explained that it was clearly established under Tenth Circuit precedent that it was irrelevant whether the attorney’s statements were intended to raise concerns about the board members’ allegedly illegal conduct, since her official duties included giving legal advice to the board regarding the “lawful and proper way” to conduct its business. Because the attorney failed to show that her speech was constitutionally protected, the court found that her other claims failed as well. Timmins v. Henderson, 2022 WL 17454551 (D Colo 12/6/22).

Following this ruling, the attorney filed an amended complaint, but the court dismissed her claims again in a decision issued in 2023. First, while she argued in her amended complaint that her comments at board meetings about the board members’ corruption were made in her capacity “as a citizen,” the court found that it had already considered and rejected this point in its prior ruling. Next, the amended complaint contended that “her statements to members of the press and public were not made pursuant to her official duties because they were made ‘outside of [her] work setting’ and were meant to expose the Director Defendants’ illegal activity.” While acknowledging that an employee’s communication with journalists “outside of their ordinary chain of command” is usually entitled to First Amendment protection, the court explained that it still had to consider the content of the statements, and upon doing so, the court found that the attorney’s speech still fell under her official duties and thus was not constitutionally protected. As the court noted, her discussions with reporters and other persons outside public meetings involved “the Board’s alleged ‘open meetings act violations,’ how the Board ‘align[ed]… with an outside attorney who had a conflict of interest,’ violations of ‘[c]ourt orders in ongoing litigation,’ including a discovery order, and ‘[board members] admission[s] in their depositions’ that they allegedly destroyed public records.” All of these matters fell squarely within the attorney’s duties as the district’s general counsel, and she acknowledged as much in her amended complaint, which expressly stated that her “speech was ‘related to alleged wrongdoing directly impacting’ her ability to ‘carry out [her] official duties’ as the District’s legal counsel.” As the court observed, she “did not remove her attorney hat simply because she was speaking after hours to individuals outside her chain of command.”

Timmins v. Henderson, 2023 WL 2390712 (D Colo 3/7/23).