Trusz v. UBS Investors, LLC, 319 Conn. 175 (2015)

319 Conn. 175
Supreme Court of Connecticut.
Richard TRUSZ
v.
UBS REALTY INVESTORS, LLC, et al.
No. 19323.
Argued March 24, 2015.
Decided Oct. 13, 2015.
Synopsis
Background: Employee brought action in federal court against former employer alleging, among other things, that employer had subjected him to discipline for the exercise of his rights under the Connecticut Constitution. The United States District Court for the District of Connecticut, Squatrito, J., certified question.
Holdings: The Supreme Court, Palmer, J., held that:
1 employee speech pursuant to official duties in a public workplace is protected from employer discipline under the state constitution only if it involves a comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety, and
2 such protections extend to private employees under statute subjecting an employer to liability for disciplining or discharging an employee who exercises his or her constitutional right to free speech.
Certified question answered.
Zarella, J., filed concurring opinion.
**1213 Wesley W. Horton, with whom were Todd Steigman, Karen L. Dowd and, on the brief, Jacques J. Parenteau, Hartford, for the appellant (plaintiff).
James A. Wade, Hartford, with whom were Brett J. Boskiewicz and, on the brief, Thomas J. Donlon, Stamford, for the appellees (defendants).
Sandra J. Staub, David J. McGuire and Martin B. Margulies filed a brief for the American Civil Liberties Union of Connecticut as amicus curiae.
Charles Krich, principal attorney, and Jane Kelleher, law student intern, filed a brief for the Commission on Human Rights and Opportunities as amicus curiae.
Daniel A. Schwartz, Hartford, Christopher T. Parkin and Clarisse N. Thomas, Stamford, filed a brief for Connecticut Business and Industry Association, Inc., as amicus curiae.
PALMER, ZARELLA, EVELEIGH, MCDONALD, ESPINOSA, ROBINSON and VERTEFEUILLE, Js.
Opinion
PALMER, J.
*178 This case comes before us on certification from the United States District Court for the District of Connecticut pursuant to General Statutes § 51–199b. The certified question that we must answer is: “Does the rule announced by the [United States] Supreme Court in Garcetti v. Ceballos, 547 U.S. 410, [421, 126 S.Ct. 1951, 164 L.Ed.2d 689] (2006), i.e., ‘that when ... employees make statements pursuant to their official duties, the employees are not speaking as citizens for [f]irst [a]mendment purposes, and the [c]onstitution does not insulate their communications from employer discipline,’ apply to a claim that an employer violated [General Statutes] § 31–51q1 by subjecting *179 an employee ‘to discipline or discharge on account of the exercise by such employee of rights guaranteed by ... [§§] 3, 4 or 14 of article first **1214 of the [c]onstitution of the state ....?” (Footnote added.) We conclude that the answer to this question is “no.” We further conclude that a modified form of the Pickering/Connick balancing test applies to speech by a public employee pursuant to the employee's official duties under the state constitution; see Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) (in determining scope of public employee's constitutional right to free speech in workplace, court's task is to seek “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [s]tate, as an employer, in promoting the efficiency of the public services it performs through its employees” [internal quotation marks omitted] ); Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (same); and that § 31–51q extends the same protection to similar speech by a private employee. Specifically, we conclude that, under the state constitution, employee speech pursuant to official job duties on certain matters of significant public interest is protected from employer discipline in a public workplace, and § 31–51q extends the same protection to employee speech pursuant to official job duties in the private workplace.
The District Court's certification order sets forth the following facts that we accept as true for purposes of responding to the certified question. “[The defendant UBS Realty Investors, LLC (UBS Realty) ] provides real estate investment management services to clients, such *180 as pension funds, public employee retirement systems, foundations, and private investors. UBS Realty is registered with the Securities and Exchange Commission as an investment advisor. UBS Realty is a subsidiary of [the defendant] UBS AG2 and is part of UBS AG's [g]lobal [a]sset [m]anagement division. UBS AG is a corporation whose stock is publicly traded on the New York Stock Exchange.
“At all times pertinent to this action, the plaintiff, Richard Trusz, was the head of UBS Realty's valuation unit and a [m]anaging [d]irector of UBS Realty. As head of the valuation unit, [the plaintiff] managed the process which ultimately resulted in the valuation of properties held in UBS Realty's private real estate investment funds. In early 2008 [the plaintiff] reported to UBS Realty management what he contended were errors in the valuation of certain properties held by UBS Realty in various investment funds. At that time [the plaintiff] also expressed to UBS Realty management his opinions that UBS Realty was obligated to correct and disclose to investors the valuation errors, that UBS Realty was obligated to return to investors any excess management fees received as a result of the valuation errors, that the valuation unit had insufficient staff and resources to adequately perform its function, that UBS Realty's internal controls regarding valuation were inadequate, that UBS Realty improperly provided preferential treatment to certain investors, and that UBS Realty was breaching fiduciary duties it owed to its investors.
“UBS Realty's compliance officer subsequently investigated [the plaintiff's] contentions. Although the report issued at the conclusion of this investigation confirmed the valuation errors reported by [the plaintiff], it concluded that none of the errors rose to a level that *181 required UBS Realty to restate the values to its investors or return any management fees that had been paid by investors. A third-party auditor for some of the funds managed by **1215 UBS Realty also investigated [the plaintiff's] claims of valuation errors. The auditor confirmed valuation errors, but concluded that these errors were not material to the funds' financial statements and did not require a restatement of any of the financial statements for the funds.
“[The plaintiff] disagreed with the conclusions of the compliance officer and the third-party auditor and continued to express to both UBS Realty and UBS AG his opinion that by not disclosing property valuation errors to investors and not adjusting management fees in light of these valuation errors, UBS Realty was violating its fiduciary, legal, and ethical obligations to its investors.
“[The plaintiff] subsequently filed discrimination and retaliation complaints with the Connecticut Commission on Human Rights and Opportunities, the United States Equal Employment Opportunity Commission, and the United States Occupational Safety and Health Administration. [The plaintiff] claimed that UBS Realty discriminated against him based on a disability—a heart condition—and later retaliated against him by taking adverse employment actions, culminating in his termination in August, 2008, because he opposed what he believed was unlawful activity by the defendants and because he had reported alleged securities laws violations. The defendants dispute [the plaintiff's] allegations of unlawful activity. [The plaintiff] sued [the defendants] in federal court in 2009.” (Footnote added.) The plaintiff alleged, among other things, that the defendants had violated § 31–51q by subjecting him to discipline “on account of the exercise ... of rights guaranteed by ... [§§] 3, 4 or 14 of article first of the [c]onstitution of Connecticut.”
*182 Thereafter, the defendants filed a motion for summary judgment contending that they were entitled to judgment as a matter of law on the plaintiff's claim under § 31–51q.3 Before the court, Squatrito, J.,4 could rule on that motion, this court issued its decision in Schumann v. Dianon Systems, Inc., 304 Conn. 585, 598, 43 A.3d 111 (2012), in which we concluded that the United States Supreme Court's decision in Garcetti, holding that speech pursuant to a public employee's official job duties was not protected by the first amendment; Garcetti v. Ceballos, supra, 547 U.S. at 421, 126 S.Ct. 1951 (public employees who make statements pursuant to their official duties are not speaking as citizens for purposes of first amendment); applies to claims brought pursuant to § 31–51q against a private employer that are based on the first amendment. See Schumann v. Dianon Systems, Inc., supra, at 598, 43 A.3d 111. In light of our decision in Schumann, the plaintiff filed in the District Court a motion for conference to discuss new authority in which he stated that he intended to argue that Garcetti did not apply to his retaliation claim because he was raising that claim under the state constitution.5 The District Court asked **1216 the parties to submit briefs on the question of whether it should certify the issue raised by the plaintiff to this court. The defendants filed a brief contending that § 31–51q did not apply because the plaintiff's workplace speech did not relate to matters of *183 public concern and, therefore, was not constitutionally protected under either Garcetti or the Pickering/Connick balancing test.6 The defendants also argued, however, that if the District Court were to determine that the plaintiff's speech did involve matters of public concern, it should certify the issue to this court. The plaintiff contended in his brief that the requirements for certification set forth in § 51–199b had been met and the question of whether the Garcetti standard applies to the free speech provisions of the state constitution should be certified to this court, provided that doing so would not delay proceedings in the District Court. Thereafter, the District Court issued its order of certification to this court, and we accepted the question of law previously set forth in this opinion.7
To provide context for our resolution of the certified question, we briefly review the governing legal principles. “In Pickering v. Board of Education, [supra, 391 U.S. at 568, 88 S.Ct. 1731] ... the court ... recognized that a government has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The court then set forth a general principle governing the constitutionality of government restrictions on the speech of its employees: *184 in evaluating the constitutionality of government restrictions on an employee's speech, a court must arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [s]tate, as an employer, in promoting the efficiency of the public services it performs ....” (Internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 601, 43 A.3d 111. “In Connick v. Myers, supra, 461 U.S. [at] 150 [103 S.Ct. 1684] the court added a modification to the general balancing test promulgated in Pickering. Under Connick, if a government employee's speech cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary ... to scrutinize the reasons for [his or] her discharge.” (Internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., supra, at 601, 43 A.3d 111. Thus, under the Pickering/ Connick balancing test, employee speech in a public workplace is protected from employer discipline if it involves a matter of public concern and if the employee's interest in commenting on the matter outweighs the employer's interest in promoting the efficient performance of public services.
**1217 In Garcetti v. Ceballos, supra, 547 U.S. at 418–19, 126 S.Ct. 1951 a majority of the United States Supreme Court noted “the practical difficulties of applying the principles articulated in Pickering and Connick ... [and] then observed that ‘[g]overnment employers, like private employers, need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services .... Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.’ ” (Citation omitted.) Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 602, 43 A.3d 111. *185 “The court emphasized that [u]nderlying [its] cases has been the premise that while the [f]irst [a]mendment invests public employees with certain rights, it does not empower them to constitutionalize the employee grievance. [Garcetti v. Ceballos, supra at] 420 [126 S.Ct. 1951], quoting Connick v. Myers, supra, 461 U.S. [at] 154 [103 S.Ct. 1684]. Thus, the court concluded that, when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for [f]irst [a]mendment purposes, and the [c]onstitution does not insulate their communications from employer discipline. Garcetti v. Ceballos, supra [at], 421 [126 S.Ct. 1951] ....”8 (Citation omitted; footnotes omitted; internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., supra, at 603, 43 A.3d 111. The court in Garcetti reasoned that “[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Garcetti v. Ceballos, supra, at 421–22, 126 S.Ct. 1951. Accordingly, under Garcetti, a court will subject the employee's speech to the Pickering/Connick balancing test only if it first determines that the employee was not speaking pursuant to his or her official duties; if the employee was speaking as an employee rather than as a citizen, the speech is not protected by the first amendment.
In Cotto v. United Technologies Corp., 251 Conn. 1, 8, 738 A.2d 623 (1999), a majority of this court concluded that § 31–51q prohibits a private employer from disciplining an employee for engaging in constitutionally protected speech not only when the speech occurs outside *186 the workplace, but also when it occurs in the workplace.9 Thereafter, in Schumann v. **1218 Dianon Systems, Inc., supra, 304 Conn. at 610–11, 43 A.3d 111 we addressed a claim by an employee against his private employer pursuant to § 31–51q alleging that the employer had unlawfully disciplined him for exercising his first amendment rights in the workplace. The plaintiff in Schumann claimed that “Garcetti, which involved a public employer-employee relationship, should not be applied to the private workplace” so as to limit the scope of employee speech that is protected by § 31–51q. Id., at 598, 43 A.3d 111. The defendant contended that, to the contrary, § 31–51q applied only to speech by a private employee that would be protected from employer discipline in a public workplace under Garcetti. Id., at 597–98, 43 A.3d 111. This court agreed with the defendant.10 Id., at 598, 43 A.3d 111. We did not reach the plaintiff's claim in Schumann that the state constitution provided broader protection than Garcetti because the plaintiff had failed to raise the issue in the trial court and, even if the issue had been properly before us, the plaintiff's speech would not have been protected under the broader Pickering/Connick balancing test that the plaintiff advocated. Id., at 619, 43 A.3d 111. The state constitutional issue that we *187 were not required to decide in Schumann is now squarely before us.
...
I
We first address the scope of a public employee's right to be protected from employer discipline on the basis of workplace speech under the speech provisions of the state constitution. The plaintiff contends that the free speech provisions of the state constitution provide broader protection to the speech of public employees than does the first amendment. Specifically, the plaintiff contends that the flexible Pickering/Connick formula, and not the bright line rule of Garcetti, applies to workplace speech by a public employee under the **1221 state constitution. We conclude that the state constitution incorporates a slightly modified form of the Pickering/ Connick test.
23“It is [well established] that federal constitutional and statutory law establishes a minimum national standard for the exercise of individual rights and does not inhibit state governments from affording higher level of protection for such rights .... State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992). In determining the contours of the protections provided by our state constitution, we employ a multifactor approach that we first adopted in Geisler. The factors that we consider are: (1) the text of the relevant constitutional provisions; *192 (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of other state courts; (5) historical insights into the intent of [the] constitutional [framers]; and (6) contemporary understandings of applicable economic and sociological norms.” (Internal quotation marks omitted.) State v. Kelly, 313 Conn. 1, 14, 95 A.3d 1081 (2014). We now turn to these factors.
A
We first address the text of the operative constitutional provision. Article first, § 4, of the Connecticut constitution provides: “Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” Article first, § 5, of the Connecticut constitution provides: “No law shall ever be passed to curtail or restrain the liberty of speech or of the press.” Finally, article first, § 14, of the Connecticut constitution provides: “The citizens have a right, in a peaceable manner, to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or other proper purposes, by petition, address or remonstrance.”
4This court previously has held that because, unlike the first amendment to the federal constitution: (1) article first, § 4, of the Connecticut constitution includes language protecting free speech “on all subjects”; (2) article first, § 5, of the Connecticut constitution uses the word “ever,” thereby providing “additional emphasis to the force of the provision”; (internal quotation marks omitted) *193 State v. Linares, 232 Conn. 345, 381, 655 A.2d 737 (1995); and (3) article first, § 14, of the Connecticut constitution provides a right to seek redress for grievances by way of “remonstrance,” and therefore “sets forth free speech rights more emphatically than its federal counterpart”; (internal quotation marks omitted) State v. Linares, supra, at 381, 655 A.2d 737; these textual differences “warrant an interpretation separate and distinct from that of the first amendment.” (Internal quotation marks omitted.) Id. The text of article first, § 4, of the Connecticut constitution providing that citizens of this state are free to speak “on all subjects, being responsible for the abuse of that liberty”; (emphasis added); is particularly relevant in the present case. This broad and encompassing language supports the conclusion that the state constitution protects employee speech in the public workplace on the widest possible range of topics, as long as the speech does not undermine the employer's legitimate interest in maintaining discipline, harmony and efficiency in the workplace. See Ozols v. Madison, United States District Court, Docket No. 3:11cv1324 (SRU), 2012 WL 3595130 (D.Conn. August 20, 2012) (“[t]he breadth of the Connecticut [c]onstitution's language suggests that a citizen's speech is protected, even when the speech is about her employment”). This standard is more consistent with the Pickering/Connick **1222 standard than with Garcetti. Compare Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. 1731 (employee has right to comment on matters of public interest that must be weighed against employer's interest in promoting efficient services); id., at 570, 88 S.Ct. 1731 (noting employer's interest in maintaining discipline, harmony, personal loyalty and confidence in workplace), with Garcetti v. Ceballos, supra, 547 U.S. at 423–24, 126 S.Ct. 1951 (employee's speech pursuant to his or her official job duties is not constitutionally protected, even if it involves matter of public concern and employee's interest in commenting on matter outweighs employer's interest in performing its services efficiently). It is apparent, therefore, that the text of article first, § 4, supports the plaintiff's position that the Pickering/ Connick balancing test provides the proper standard under the state constitution.
In support of their claim to the contrary, the defendants contend that, because article first, § 4, of the *194 Connecticut constitution provides that “[e]very citizen,” and not every person, “may freely speak, write and publish his sentiments on all subjects,” the provision is narrower than the first amendment. They further contend that, when a person is speaking pursuant to his or her official job duties, the person is not speaking as a citizen and, therefore, the speech is not protected under this provision. Cf. Garcetti v. Ceballos, supra, 547 U.S. at 421, 126 S.Ct. 1951 (“when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for [f]irst [a]mendment purposes”); Connick v. Myers, supra, 461 U.S. at 146, 103 S.Ct. 1684 (“[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the [f]irst [a]mendment”). The defendants' argument, however, proves too much. Taken to its logical conclusion, the defendants' interpretation would permit the state to regulate all speech on personal or private matters that is not made in the speaker's capacity as a citizen, regardless of where the speech occurred. There is no evidence that the constitutional framers intended to impose such severe limits on the speech rights of the state's citizenry. Moreover, the defendants' interpretation would render article first, § 4, internally inconsistent, as it would prevent citizens from speaking freely “on all subjects”; (emphasis added) Conn. Const. art. 1, § 4; including those subjects that do not involve the speaker's role as a citizen. For these reasons, we reject the defendants' contention.

B
We next consider the second Geisler factor, the holdings and dicta of this court and the Appellate Court. As we have indicated, this court held in State v. Linares, supra, 232 Conn. at 381, 655 A.2d 737, that the free speech provisions *195 of the state constitution have “an interpretation separate and distinct from that of the first amendment”; (internal quotation marks omitted); and that “the framers of our constitution contemplated vibrant public speech, and a minimum of governmental interference ....” Id., at 386, 655 A.2d 737. In Linares, this court rejected the rigid “federal forum analysis, which affords the most rigorous protection of speech only at ‘traditional’ forums and narrowly defines ‘traditional’ to exclude modern public gathering places often otherwise compatible with public expression” in favor of a more “flexible approach,” requiring a “case-by-case balancing of the right to free speech against the competing interest of preventing unreasonable interference **1223 with the ‘normal activity’ of a particular place.” Id., at 382, 655 A.2d 737. This court reasoned that “this flexible approach prohibits the government from unilaterally and unnecessarily limiting speech ....” Id., at 386, 655 A.2d 737. Similarly, in the present case, the sensitive, case-by-case balancing test set forth in Pickering and Connick would minimize unilateral governmental interference with employee speech that is compatible with the legitimate interests of employers more effectively than the rigid Garcetti rule, which categorically denies constitutional protection to any speech by an employee in his or her official capacity, regardless of whether the speech unduly burdens the employer.
Moreover, as the Appellate Court has observed, “Connecticut's appellate courts have not been hesitant to continue to grant its citizens the same protection as did the ‘old’ federal decisions, when the United States Supreme Court has retreated from a previously enunciated broad protection reading of [a federal constitutional provision].”14 *196 State v. DeFusco, 27 Conn.App. 248, 256, 606 A.2d 1 (1992), aff'd, 224 Conn. 627, 620 A.2d 746 (1993). This willingness to adhere to an old rule that provides broader protection than the new rule is consistent with the principle that “our state constitution is an instrument of progress, it is intended to stand for a great length of time and should not be interpreted too narrowly or too literally so that it fails to have contemporary effectiveness for all of our citizens.” (Internal quotation marks omitted.) State v. Linares, supra, 232 Conn. at 382, 655 A.2d 737. When a constitutional rule has been in place for a long period of time, a sudden contraction of the rule may well violate the entrenched constitutional expectations of the state's citizenry.15 Cf. *197 **1224 State v. DeFusco, supra, at 256, 606 A.2d 1 (observing that, in State v. Marsala, 216 Conn. 150, 579 A.2d 58 [ (1990) ], this “court interpreted our state constitution to allow the maintenance of a constitutional status quo that had existed for our citizens for at least twenty-nine years”). We note that Pickering was decided in 1968, Connick was decided in 1983 and Garcetti was decided in 2006. Thus, the citizens of this state enjoyed the benefit of the Pickering balancing test for thirty-eight years. Accordingly, we conclude that the precedents of this court and the Appellate Court support the plaintiff's position in the present case.16
*198 C
We next address the third Geisler factor, persuasive federal precedent. As we have explained, the primary federal precedents consist of the United States Supreme Court's decisions in Pickering, Connick and Garcetti. For the following interrelated reasons, we find Pickering and Connick to be more persuasive than Garcetti.
First, we believe that the distinction that the court made in Garcetti between an employee's speech on a matter of public concern in the speaker's role as citizen and an employee's speech on a matter of public **1225 concern pursuant to official duties is somewhat artificial and potentially difficult to apply. See Ozols v. Madison, supra, United States District Court, Docket No. 3:11cv1324 (SRU) (concluding that Garcetti does not apply to § 31–51q claims under state constitution because “there is something strangely arbitrary about a judicial inquiry into when a citizen is acting as a citizen”). As Justice Souter pointed out in his dissenting opinion in Garcetti, under the rule adopted by the majority in that case, a “schoolteacher is protected when complaining to the principal about hiring policy,” because hiring is not within the duties of a teacher, but “a school personnel officer would not be [protected] if he protested that the principal disapproved of hiring minority job applicants.” Garcetti v. Ceballos, supra, 547 U.S. at 430, 126 S.Ct. 1951; see also id., at 429, 126 S.Ct. 1951 (Souter, J., dissenting), citing Madison, Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167, 177 n. 11, 97 S.Ct. 421, 50 L.Ed.2d 376 (1976) (schoolteacher who spoke at school board meeting about pending labor negotiations between board and teachers' *199 union spoke “both as an employee and a citizen exercising [f]irst [a]mendment rights”); Garcetti v. Ceballos, supra, at 427, 126 S.Ct. 1951 (Stevens, J., dissenting) (“[P]ublic employees are still citizens while they are in the office. The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one's employment is quite wrong.”). Justice Souter also stated in his dissenting opinion that this distinction “seems stranger still in light of the majority's concession of some [f]irst [a]mendment protection when a public employee repeats statements made pursuant to his duties but in a separate, public forum or in a letter to a newspaper.” Garcetti v. Ceballos, supra, at 430 n. 1, 126 S.Ct. 1951. He argued that “separating the citizen's interest from the employee's interest ignores the fact that the ranks of public service include those who share the poet's ‘object ... to unite [m]y avocation and my vocation’; these citizen servants are the ones whose civic interest rises highest when they speak pursuant to their duties, and these are exactly the ones government employers most want to attract.” (Footnote omitted.) Id., at 432, 126 S.Ct. 1951 (Souter, J., dissenting). Finally, Justice Souter observed in his dissent that “public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers, operations which are of substantial concern to the public. Were they not able to speak on these matters, the community would be deprived of informed opinions on important public issues .... This is not a whit less true when an employee's job duties require him to speak about such things: when, for example, a public auditor speaks on his discovery of embezzlement of public funds, when a building inspector makes an obligatory report of an attempt to bribe him, or when a law enforcement officer expressly balks at a superior's order to violate constitutional rights he is sworn to protect.” (Citation omitted; internal quotation marks omitted.) Id., at 433, 126 S.Ct. 1951. We generally find Justice Souter's argument persuasive.
*200 Second, and relatedly, although Garcetti sought to justify the adoption of a categorical rule on the ground that a more flexible test “would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business”; id., at 423, 126 S.Ct. 1951; Garcetti has merely created new uncertainties that will require judicial resolution. Specifically, the court **1226 in Garcetti did not provide any clear guidance on what speech will be found to be “pursuant to official responsibilities,” but merely noted that “[t]he proper inquiry is a practical one.” Id., at 424, 126 S.Ct. 1951; see also C. Rhodes, “Public Employee Speech Rights Fall Prey to an Emerging Doctrinal Formalism,” 15 Wm. & Mary Bill Rts. J. 1173, 1193 (2007) (“the [c]ourt [in Garcetti ] has merely shifted the uncertainty to the scope of the underlying categorization”); C. Rhodes, supra, at 1194–98 (discussing conundrums that arise when attempting to apply “ ‘practical inquiry’ ” standard under Garcetti ). Not surprisingly, courts have struggled with this issue. See Weintraub v. Board of Education, 593 F.3d 196, 203 (2d Cir.) (concluding that teacher who filed grievance to complain about supervisor's failure to discipline student who repeatedly threw books at teacher was speaking pursuant to official duties “even though [such speech] is not required by, or included in, the employee's job description or in response to a request by the employer” because speech “was part-and-parcel of his concerns about his ability to properly execute his duties” [internal quotation marks omitted] ), cert. denied, 562 U.S. 995, 131 S.Ct. 444, 178 L.Ed.2d 344 (2010); id., at 205 (Calabresi, J., dissenting) (arguing that Garcetti “lends itself to multiple interpretations, and the majority's decision to construe it broadly ... while a possible reading, is not compelled by anything in the Supreme Court's opinion”); Davis v. McKinney, supra, 518 F.3d at 314 *201 under Garcetti, court is required to analyze “separately each aspect of a communication with multiple topics and recipients” to determine whether each aspect of speech was pursuant to official job duties); Davis v. McKinney, supra, at 315 (employee speech “directed within the employee's chain of command is not protected,” but speech to fellow employee outside chain of command is protected). Accordingly, we are not persuaded that Garcetti's purported bright line rule reduces the need for judicial oversight of workplace disputes.
Third, we are persuaded that “Garcetti's reasoning ... turned the Pickering/Connick test on its head by privileging employment status over the subject matter of public employee speech.” S. Nahmod, “Public Employee Speech, Categorical Balancing and § 1983: A Critique of Garcetti v. Ceballos,” 42 U. Rich. L.Rev. 561, 573 (2008). As we have explained, in Pickering and Connick, the court focused on the place of the employee's speech in the “the hierarchy of [f]irst [a]mendment values ....” (Internal quotation marks omitted.) Connick v. Myers, supra, 461 U.S. at 145, 103 S.Ct. 1684. If the speech occupied a high rung in that hierarchy, it was protected. In contrast, Garcetti focuses on “the employee's [f]irst [a]mendment status. If the speech is required by the job, the public employee loses his status as a citizen with [f]irst [a]mendment protection against employer discipline ....” S. Nahmod, supra, at 574. This is so even if the speech has the highest first amendment value because it involves a matter of great public concern, and even if the speech imposed little burden on the employer's legitimate interests. See, e.g., Davis v. McKinney, supra, 518 F.3d at 315–16 (employee's speech to supervisor expressing concerns about inadequate response to employee's investigation into fellow employees' use of workplace computers to access pornography, possibly including child pornography, not *202 protected from employer discipline under Garcetti ); Morales v. Jones, 494 F.3d 590, 593–94, 597 (7th Cir.2007) (police officer's statement to fellow police officer that deputy police chief had harbored felon not protected because first police officer had official duty to apprise **1227 second police officer of information pertinent to investigation; second police officer's statement to district attorney about deputy chief's harboring felon not protected because second police officer had duty to assist district attorney by providing details of investigation), cert. denied, 552 U.S. 1099, 128 S.Ct. 905, 169 L.Ed.2d 729 (2008); see also Morales v. Jones, supra, at 598 (concluding that first police officer's deposition testimony regarding deputy chief was protected and recognizing “the oddity of a constitutional ruling in which speech said to one individual may be protected under the [f]irst [a]mendment, while precisely the same speech said to another individual is not protected”); compare Lane v. Franks, ––– U.S. ––––, 134 S.Ct. 2369, 2378 n. 4, 2380, 189 L.Ed.2d 312 (2014) (holding that truthful sworn testimony in court given outside job duties is protected, but declining to address question whether truthful sworn testimony pursuant to employee's ordinary job duties would be protected). We conclude that the flexible Pickering/Connick balancing test is preferable to Garcetti's categorical rule in this context. See C. Rhodes, supra, 15 Wm. & Mary Bill Rts. J. at 1192 (“[p]ublic employee speech cases defy simple rule-based categorization because of the almost limitless circumstances in which they arise”).
Fourth, because employee speech to persons outside the workplace is potentially protected under Garcetti even if it involves the employee's official duties, Garcetti creates a perverse incentive for public employees to bring their work-related concerns to such persons before trying to resolve them internally.17 See *203 Garcetti v. Ceballos, supra, 547 U.S. at 423–24, 126 S.Ct. 1951 (“Employees who make public statements outside the course of performing their official duties retain some possibility of [f]irst [a]mendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper ....” [Citations omitted.] ); see also Davis v. McKinney, supra, 518 F.3d at 315–16 (employee's speech to supervisor complaining of inadequate response to employee's investigation revealing use of workplace computers to view pornography not protected, while employee's complaints to Federal Bureau of Investigation about possible use of computers to view child pornography were protected);18 P. Secunda, “ **1228 Garcetti's Impact on the First Amendment Speech Rights of Federal Employees,” 7 First Amend. L.Rev. 117, 127 (2008–2009) (“[t]he moral of the Garcetti story appears to be to go directly to an external agency, do not pass [g]o, and certainly do not attempt to resolve internally”).
5Finally, although we recognize that public employers have an important interest in ensuring that “their *204 employees' official communications are accurate, demonstrate sound judgment and promote the employer's mission”; (internal quotation marks omitted) Garcetti v. Ceballos, supra, 547 U.S. at 434, 126 S.Ct. 1951 (Souter, J., dissenting); we are persuaded by Justice Souter's argument that this interest can be adequately protected by applying a slightly modified Pickering test, under which the employee could prevail only if “he speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he does it.”19 Id., at 435, 126 S.Ct. 1951. Specifically, Justice Souter proposed that “only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee's favor” when an employee is speaking pursuant to official job duties. Id. Thus, under Justice Souter's proposed standard, speech pursuant to an employee's official duties regarding, for example, a mere policy disagreement with the employer would not be protected, even if it pertained to a matter of public concern and had little effect on a legitimate employer interest.20
*205 Because we find Pickering and Connick to be more persuasive than Garcetti, we conclude that the weight of persuasive federal precedent favors a broader reading of the free speech provisions of the state constitution than of the first amendment.
D
We next address the fourth Geisler factor, persuasive sister state decisions. The defendants point out that the three state courts that have considered the issue that is before us have concluded that Garcetti applies to claims under the respective state constitution. See Kaye v. Board of Trustees, 179 Cal.App.4th 48, 101 Cal.Rptr.3d 456 (2009); Newell v. Runnels, 407 Md. 578, 967 A.2d 729 (2009); Gilbert **1229 v. Flandreau Santee Sioux Tribe, 725 N.W.2d 249 (S.D.2006).
We do not find these cases persuasive. In Kaye v. Board of Trustees, supra, 179 Cal.App.4th at 57–58, 101 Cal.Rptr.3d 456, the court concluded the relevant state constitutional provision21 was not broader than the first amendment in this context because Garcetti did not narrow the scope of protected speech in the workplace and the case was not “illogical, unpersuasive or incompatible with its prior precedents.” For the reasons set forth in part I C of this opinion, we disagree with this conclusion. In Newell v. Runnels, supra, 407 Md. at 608, 967 A.2d 729, the court merely stated conclusorily that the speech protections provided by the Maryland constitution22 are “generally *206 ‘coextensive’ with the protections accorded by the [f]irst [a]mendment.” There is no such general presumption in this state. Similarly, the court in Gilbert v. Flandreau Santee Sioux Tribe, supra, 725 N.W.2d at 258, stated that the majority of states with constitutional free speech provisions like South Dakota's23 “have interpreted their state constitutional free speech provisions as coextensive with their federal counterparts.” The court did not analyze Garcetti or compare the holding and reasoning of that case to the holdings and reasoning of the United States Supreme Court in Pickering and Connick. These cases, therefore, provide little, if any, support to the defendants' position in the present case.
E
We next consider the fifth Geisler factor, historical insights into the intent of the constitutional framers. This court previously has recognized that “our constitution's speech provisions reflect a unique historical experience and a move toward enhanced civil liberties, particularly those liberties designed to foster individuality .... This historical background indicates that the framers of our constitution contemplated vibrant public speech, and a minimum of governmental interference ....” (Citation omitted; internal quotation marks omitted.) State v. Linares, supra, 232 Conn. at 385–86, 655 A.2d 737. Thus, this factor supports the conclusion that, when employee speech will not unduly interfere with a public employer's interests in promoting efficient services, in maintaining discipline, harmony, personal loyalty and confidence in the workplace and in setting official policy within the limits of the law, the mere fact that the employee was speaking pursuant to his or her official duties should not subject the employee to discipline.
*207 F
Finally, we consider the sixth Geisler factors, contemporary understandings of applicable economic and sociological norms. This factor has significant overlap with the first Geisler factor, the persuasiveness of the United States Supreme Court's decision in Pickering, Connick and **1230 Garcetti. Specifically, we noted in part I A of this opinion that, by eliminating first amendment protection for employee speech pursuant to official job duties, even if the speech is on a matter of public concern and places little burden on the employer, Garcetti reduced the likelihood that public employees would speak to their employers regarding corrupt practices, threats to the public safety or other illegal or dangerous workplace practices. Thus, the persons who are in the best position to know about corrupt or dangerous practices by public entities face the prospect of discipline or discharge if they bring such practices to the attention of their employers. Moreover, Garcetti created an incentive for public employees to raise their concerns outside the workplace in the first instance. Although public employees certainly have the right to raise their concerns externally, we can discern no public policy that would be advanced by requiring them to do so. Finally, the public policy expressed by § 31–51q is that employees in this state should have the right to speak freely on all subjects, even in the workplace, as long as their speech does not “substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer ....” General Statutes § 31–51q. Accordingly, we conclude that these public policy factors weigh in favor of the plaintiff's position.
...
Finally, the defendants contend that the bright line rule of Garcetti provides clearer guidance to employers than the flexible Pickering/ Connick test. As we explained in part I C of this opinion, however, Garcetti merely substituted one difficult question—whether a public employee is speaking pursuant to his official job duties or as a citizen—for another difficult question—whether the employee's speech is on a matter of public concern and outweighs the employer's legitimate interests in workplace discipline, order and efficiency. But even if it is true that the rule in Garcetti is marginally easier to apply than the Pickering/Connick test, that fact would hardly outweigh the obvious benefits associated with the significantly greater free speech rights afforded under the latter standard.
G
In summary, the Geisler factors as a whole provide considerable support for the plaintiff's claim that the Garcetti standard does not comport with the free speech provisions of the state constitution, and no such factor provides any meaningful support for a contrary determination. We conclude, therefore, that Justice Souter's modified Pickering/Connick balancing test, which recognizes both the state constitutional principle that speech on all subjects should be protected to the maximum extent possible and the important interests of an employer in controlling its own message and preserving workplace discipline, harmony and efficiency, provides the proper test for determining the scope of a public employee's rights under the free **1232 speech provisions of the state constitution when the employee is speaking pursuant to his or her official duties. Id., at 435, 126 S.Ct. 1951 *211 (Souter, J., dissenting) (“only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can weigh out in an employee's favor” when employee is speaking pursuant to official duties); see also part I C of this opinion. In our view, Justice Souter's test properly balances the employer's heightened interest in controlling employee speech pursuant to official job duties—an interest that Pickering did not specifically address—and the important interests of the employee and of the public in allowing employees to speak without fear of retaliation about matters of particularly acute public concern—interests that the Garcetti standard fails to protect. As Justice Stevens aptly stated in his dissenting opinion in Garcetti, “[t]he proper answer to the question ‘whether the [constitution] protects a government employee from discipline based on speech made pursuant to the employee's official duties' ... is ‘[s]ometimes,’ not ‘[n]ever.’ ” Garcetti v. Ceballos, supra, 547 U.S. at 426, 126 S.Ct. 1951 (Stevens, J., dissenting).
...
III
For all of the foregoing reasons, we conclude that the answer to the certified question is “no.” We further conclude that the Pickering/Connick balancing test, as modified by Justice Souter in his dissenting opinion in Garcetti; see Garcetti v. Ceballos, supra, 547 U.S. at 435, 126 S.Ct. 1951 (Souter, J., dissenting) (“only comment on official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety can *217 weigh out in an employee's favor” when employee is speaking pursuant to official duties); applies to speech in a public workplace under the state constitution and that § 31–51q extends the same protection to employee speech in a private workplace for claims involving the state constitution.
No costs will be taxed in this court to the plaintiff or the defendants.
In this opinion EVELEIGH, McDONALD, ESPINOSA, ROBINSON and VERTEFEUILLE, Js., concurred.
ZARELLA, J., concurring.
I agree with the result that the majority reaches. I write separately simply to reiterate that I would interpret General Statutes § 31–51q as being “inapplicable to any speech made by a private sector employee in a private workplace, contrary to the reasoning in Cotto v. United Technologies Corp., 251 Conn. 1, 738 A.2d 623 (1999).” (Footnote omitted.) Schumann v. Dianon Systems, Inc., 304 Conn. 585, 627–28, 43 A.3d 111 (2012) (Zarella, J., concurring). I recognize that this claim has not been raised by the parties in the present case, and, therefore, it would be inappropriate to decide the case on that basis. Nevertheless, “when presented with the appropriate case, I would overrule Cotto and instead follow Justice Borden's concurrence and dissent in Cotto. [See Cotto v. United Technologies Corp., supra, at 21, 738 A.2d 623 (Borden, J., concurring and dissenting).] A proper reading of § 31–51q extends protections to private sector employees only from discipline or discharge [resulting from] the exercise of their constitutionally guaranteed free speech rights outside of the workplace. It does not protect a private sector employee's speech in the private workplace, regardless of whether that speech [is] a matter of public concern or made pursuant to his or her job duties.” **1236 Schumann v. Dianon Systems, Inc., supra, at 638, 43 A.3d 111 (Zarella, J., concurring). Accordingly, I respectfully concur.
All Citations
319 Conn. 175, 123 A.3d 1212, 166 Lab.Cas. P 61,639, 40 IER Cases 1275
Footnotes
1
General Statutes § 31–51q provides: “Any employer, including the state and any instrumentality or political subdivision thereof, who subjects any employee to discipline or discharge on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or section 3, 4 or 14 of article first of the Constitution of the state, provided such activity does not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer, shall be liable to such employee for damages caused by such discipline or discharge, including punitive damages, and for reasonable attorney's fees as part of the costs of any such action for damages. If the court determines that such action for damages was brought without substantial justification, the court may award costs and reasonable attorney's fees to the employer.”
2
Hereinafter, joint references to UBS Realty and UBS AG are to the defendants, and references to the defendants individually are by name.
3
Because the record before us does not contain the defendants' motion for summary judgment, the basis of the defendants' claim is unclear.
4
Hereinafter, all references to the District Court are to Judge Squatrito unless otherwise indicated.
5
Before filing their motion for summary judgment, the defendants had filed a motion to dismiss the plaintiff's claims. In her ruling on the motion to dismiss the claim pursuant to § 31–51q, the District Court judge to whom the matter was then assigned, Arterton, J., concluded that Garcetti did not apply to the claim because Garcetti did not apply to claims arising in a private workplace. See Trusz v. UBS Realty Investors, LLC, United States District Court, Docket No. 3:09cv268 (JBA), 2010 WL 1287148 (D.Conn. March 30, 2010). This court's decision in Schumann abrogated Judge Arterton's ruling.
6
See Garcetti v. Ceballos, supra, 547 U.S. at 419, 126 S.Ct. 1951 (“[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively”); Connick v. Myers, supra, 461 U.S. at 146, 103 S.Ct. 1684 (“[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the [f]irst [a]mendment”).
7
After we accepted the certified question from the District Court, we granted permission to the American Civil Liberties Union of Connecticut and the Commission on Human Rights and Opportunities to file briefs as amici curiae in support of the plaintiff's position, and to the Connecticut Business and Industry Association, Inc., to file an amicus curiae brief in support of the defendants' position.
8
In Garcetti, Justice Stevens authored a dissenting opinion; see Garcetti v. Ceballos, supra, 547 U.S. at 426, 126 S.Ct. 1951; Justice Souter authored a dissenting opinion, in which Justice Stevens and Justice Ginsburg joined; id., at 427, 126 S.Ct. 1951; and Justice Breyer authored a dissenting opinion. Id., at 444, 126 S.Ct. 1951. We discuss the substance of these dissenting opinions later in this opinion.
9
Justice Borden authored a concurring and dissenting opinion in Cotto, in which he argued that, although § 31–51q applied to private employers, it did not provide protection against infringement of speech rights in a private workplace, because interference with speech rights by a private employer does not violate the constitution. Cotto v. United Technologies Corp., supra, 251 Conn. at 32–33, 738 A.2d 623. Justice Katz authored a concurring and dissenting opinion in which she agreed with the majority's interpretation of § 31–51q, but disagreed with the majority's conclusion that the defendant had not violated the statute. Id., at 41, 738 A.2d 623. Justice Francis McDonald issued a concurring opinion in which he maintained that § 31–51q did not apply to employee speech in the workplace because private employers have a constitutional right to express their own views on their property, free from government interference. Id., at 53–54, 738 A.2d 623.
10
We note that Justice Zarella authored a concurring opinion in which he argued that § 31–51q was inapplicable to any speech made by an employee in a private workplace and that Cotto should be overruled. Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 628–29, 43 A.3d 111.
11
To be sure, some language in Schumann may be read as suggesting that private employee speech pursuant to official job duties is not protected under the first amendment. See Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 610 n. 21, 43 A.3d 111 (rejecting plaintiff's claim that § 31–51q applies to employee speech pursuant to official duties because “§ 31–51q, by its plain language, applies only ‘to constitutionally protected speech,’ ” which, under Garcetti, does not include speech pursuant to official job duties). To the extent that this language possibly could be interpreted to suggest that the government may freely punish or prohibit such speech, we now disavow any such suggestion. Rather, as we have explained, speech by a public employee pursuant to official job duties is not constitutionally protected under the federal constitution only in the special sense that the constitution does not insulate such speech from employer discipline.
12
We recognize that § 31–51q confers only statutory protection against a private employer's interference with constitutionally protected employee speech, whereas an employer's right to address employees as it sees fit is, at least to some degree, constitutionally protected from government interference. To the extent that the defendants intended to claim that § 31–51q is facially unconstitutional because it confers a statutory speech right on employees that constrains the employer's constitutional speech rights, we conclude that any such claim is unreviewable because it was inadequately briefed.
13
The District Court has asked us only to articulate the proper legal standard under the state constitution; it has not asked us to apply that standard to the facts of this case.
14
“See, e.g., State v. Marsala, [216 Conn. 150, 579 A.2d 58 (1990) ]; State v. Geisler, supra, [222 Conn. at 672, 610 A.2d 1225]. Thus, in [Marsala ], our Supreme Court refused to follow United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and gave our citizens the protection of the exclusionary rule, under our constitution, undiluted by a good faith exception, as allowed in Leon. Until Leon, a broad exclusionary rule under the federal constitution had been a constant in fourth amendment analysis, having been first announced in Weeks v. United States, 232 U.S. 383, [398] 34 S.Ct. 341, 58 L.Ed. 652 (1914), and made applicable to the states through the fourteenth amendment to the United States constitution in Mapp v. Ohio, 367 U.S. 643, [655] 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Marsala court interpreted our state constitution to allow the maintenance of a constitutional status quo that had existed for our citizens for at least twenty-nine years.
“In [Geisler ], this court refused to follow New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990). The Harris court also created an exception to the exclusionary rule under the federal constitution, and held that evidence obtained outside a residence, immediately following an illegal warrantless arrest made in the residence, was admissible at trial. [Id., at 21, 110 S.Ct. 1640.] Such evidence had been previously banned as violative of the fourth amendment. See Payton v. New York, 445 U.S. 573, [590] 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Our conclusion in Geisler aligned our state constitutional protections with those protections long afforded by the federal constitution prior to Harris and followed by the courts of this state.” State v. DeFusco, 27 Conn.App. 248, 256–57, 606 A.2d 1 (1992), aff'd, 224 Conn. 627, 620 A.2d 746 (1993).
15
Authorities have disagreed as to whether Garcetti narrowed the Pickering/Connick test or, instead, merely addressed an issue that it had not previously had the opportunity to address. Compare Kaye v. Board of Trustees, 179 Cal.App.4th 48, 58, 101 Cal.Rptr.3d 456 (2009) ( “Garcetti does not ... limit rights established by earlier precedents in a manner inconsistent with those precedents. Rather, Garcetti relied upon and applied earlier precedents to address an issue that had never been directly addressed by them ....”), with R. Garcia, “Against Legislation: Garcetti v. Ceballos, and the Paradox of Statutory Protection for Public Employees,” 7 First Amend. L.Rev. 22, 24 (2008–2009) (Garcetti “narrowed the scope of the [f]irst [a]mendment protections that public employees had enjoyed for decades”). In our view, Garcetti narrowed the scope of protected speech. Before Garcetti was decided, public employees reasonably could have expected that speech pursuant to their official duties would be protected from employer discipline if it related to a matter of public concern and if it satisfied the Pickering balancing test. After Garcetti, the “answer to the question whether the [f]irst [a]mendment protects a government employee from discipline based on speech made pursuant to the employee's official duties' ... is ... ‘[n]ever.’ ” Garcetti v. Ceballos, supra, 547 U.S. at 426, 126 S.Ct. 1951 (Stevens, J., dissenting).
16
Although the second prong of Geisler focuses on the decisions of this court and the Appellate Court, it bears noting that, on at least five occasions, our trial courts have either declined to apply Garcetti to § 31–51q claims involving the state constitution or held that it is an open question whether Garcetti applies to such claims. See Sanchez v. High Watch Recovery Center, Inc., Superior Court, judicial district of Hartford, Docket No. HHD–CV–12–6032834–S (January 14, 2013) (denying motion to strike claim pursuant to § 31–51q pursuant to Garcetti because “the Connecticut constitution is more liberal than the federal constitution on freedom of speech”); Maysonet v. Primecare, Inc., Superior Court, judicial district of Waterbury, Docket No. CV–10–5016091–S, 2013 WL 812109 (February 1, 2013) (denying defendant's motion for summary judgment “because Connecticut may afford individuals greater protection under its own constitution” than is afforded by Garcetti ); Matthews v. Dept. of Public Safety, Superior Court, judicial district of Hartford, Docket No. HHD–CV–11–6019959–S, 2013 WL 3306435 (May 31, 2013) (56 Conn. L. Rptr. 262, 270–82) (conducting Geisler analysis and concluding that Pickering/ Connick balancing test applies to employee speech under Connecticut constitution); Cubilla v. Montville, Superior Court, judicial district of New London, Docket No. KNL–CV–11–6010874–S, 2014 WL 1565899 (March 18, 2014) (57 Conn. L. Rptr. 860, 864 n. 65) (adopting analysis of court in Matthews ); Carson v. Dept. of Children & Families, Superior Court, judicial district of Hartford, Docket No. HHD–CV–07–5036578–S, 2014 WL 1674165 (March 27, 2014) (denying motion to strike claim pursuant to § 31–51q pursuant to Garcetti because free speech rights may be broader under state constitution); see also Ozols v. Madison, supra, United States District Court, Docket No. 3:11cv1324 (SRU) (concluding that Garcetti does not apply “to those portions of [§] 31–51q that relate to rights protected by the Connecticut [c]onstitution”); but see Cabrera v. American School for the Deaf, Superior Court, judicial district of Hartford, Docket No. HHD–CV–12–6035273–S, 2013 WL 1189383 (February 26, 2013) (55 Conn. L. Rptr. 637, 639–41) (performing Geisler analysis and concluding that Garcetti applies to claims under state constitution).
17
The court in Garcetti stated that “[i]f ... a government employer is troubled by the perceived anomaly, it has the means at hand to avoid it. A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public.” Garcetti v. Ceballos, supra, 547 U.S. at 424, 126 S.Ct. 1951. The court failed to recognize, however, that a public employee who speaks pursuant to such internal policies and procedures still might face the prospect of employer discipline for the speech, unless the policies and procedures rose to the level of a contractual guarantee that there would be no retaliation for critical speech. Moreover, we do not see why this important issue of public policy should be subject to a public employer's unilateral choice.
18
Compare Matthews v. Lynch, United States District Court, Docket No. 3:07cv739 (WWE), 2011 WL 1363783 (D. Conn. April 11, 2011) (speech of state police officer relating to alleged corruption within Connecticut State Police and directed at office of Connecticut attorney general and New York State Police not protected because speaker was “charged with reporting crime and ... he did in fact report misconduct to the agencies to which he was supposed to report such misconduct”).
19
Indeed, it is arguable that what Justice Souter characterized as an “adjustment” of the Pickering test; Garcetti v. Ceballos, supra, 547 U.S. at 434, 126 S.Ct. 1951; is not an adjustment at all, but is a straightforward application of Pickering to a specific type of speech, that is, speech pursuant to an employee's official duties, that the employer has a particularly important interest in controlling.
Justice Breyer argued in his dissenting opinion in Garcetti that the standard adopted by the majority was too narrow, but that Justice Souter's proposed standard was too broad. Id., at 446–48, 126 S.Ct. 1951. In his view the Pickering balancing test should apply to employee speech pursuant to official duties “only in the presence of augmented need for constitutional protection and diminished risk of undue judicial interference with governmental management of the public's affairs.” Id., at 450, 126 S.Ct. 1951. He concluded that that test was met in Garcetti because the case involved the speech of an attorney, which is subject to regulation by canons of professional ethics, and because it involved the speech of a prosecutor, which is subject to the constitutional mandate to communicate with the defense about exculpatory and impeachment evidence in the government's possession. Id., at 446–47, 126 S.Ct. 1951. We believe that Justice Souter's proposed standard provides adequate protection of the interests of public employers.
20
For example, if a public employee responsible for establishing state traffic rules and policies insisted that, contrary to the state's established policy, the speed limit on interstate highways should be eighty miles per hour, that speech would not be protected under Justice Souter's approach, even though it was on a matter of public concern and placed little burden on the employer.
21
The California constitution provides in relevant part: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” Cal. Const. art. I, § 2(a).
22
The Maryland constitution provides in relevant part: “That the liberty of the press ought to be inviolably preserved; that every citizen of the [s]tate ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.” Md. Const. art. 40.
23
The South Dakota constitution provides in relevant part: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right ....” S.D. Const. art. VI, § 5.
24
In the public workplace, the modified Pickering/Connick test also would protect speech regarding deliberately unconstitutional action by the employer because that conduct would satisfy the state action requirement. Garcetti v. Ceballos, supra, 547 U.S. at 435, 126 S.Ct. 1951 (Souter, J., dissenting).
25
The defendants raise the hypothetical examples of an employee who “has a racist bumper sticker on a car that he or she uses when visiting customers,” an employee who “hands out political leaflets to customers or solicits donations to social causes,” an employee who “hands out religious materials when meeting customers,” and an employee who “uses racist or sexist slurs when conducting business or communicating with other employees.” Presumably, however, none of these examples involves speech pursuant to official job duties. Thus, if they would be protected under the Pickering/Connick balancing test, they would be protected under Garcetti, which is the standard that the defendants would have us adopt under the state constitution. Moreover, although there is no need in the present case to consider whether such speech would be protected under the Pickering/Connick test, we doubt that the employee's interest in engaging in such speech would outweigh the employer's legitimate interest in maintaining discipline, harmony and efficiency in the workplace or that the speech would satisfy the statutory requirement that the employee's activity “not substantially or materially interfere with the employee's bona fide job performance or the working relationship between the employee and the employer ....” General Statutes § 31–51q. Indeed, a number of these activities would subject the employer to legal action, which would hardly promote a harmonious working relationship between the employee and the employer.
The amicus Connecticut Business and Industry Association, Inc., contends that, in the present case, “not only was [the plaintiff's] speech part of his professional duties, but his speech occurred even after his employer fully considered his concerns, and, after two separate investigations, disagreed with [the plaintiff] that additional disclosures were necessary.” (Emphasis in original.) As we have indicated, however, we have not been asked to apply the standard that we have adopted to the facts of the present case. Accordingly, we express no opinion as to whether the plaintiff's speech was protected under § 31–51q.
26
As the majority in Cotto stated, “[w]e do not dispute the possibility that circumstances may arise when the rights of an employee under § 31–51q may conflict with the employer's own free expression rights. If and when that case does arise, we will be required to resolve any such conflict in light of the particular facts and circumstances then presented.” Cotto v. United Technologies Corp., supra, 251 Conn. at 8 n. 5, 738 A.2d 623.
27
The defendants' reliance on Schumann in support of their claim to the contrary is misplaced. In Schumann, we rejected the plaintiff's claim that applying Garcetti to the speech of internal whistleblowers in the private workplace pursuant to § 31–51q would chill such speech, stating that “by its plain language, [§ 31–51q] applies only to constitutionally protected speech ....” (Internal quotation marks omitted.) Schumann v. Dianon Systems, Inc., supra, 304 Conn. at 610 n. 21, 43 A.3d 111. Thus, we held only that, if the first amendment did not protect internal whistleblower speech in a public workplace from employer discipline under Garcetti, § 31–51q did not protect such speech from discipline by a private employer in claims involving the first amendment. We did not suggest that, if the speech provisions of the state constitution do protect internal whistleblower speech in a public workplace, § 31–51q could not be construed to provide protection to such speech in the private workplace if the protection went beyond that provided by other statutes.
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