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Cassidy v. Salt Lake County Fire Civil Service Council3/4/1999
e the public.").
Still, "the First Amendment does not . . . guarantee absolute freedom of speech," Board of County Comm'rs v. Umbehr, 116 S. Ct. 2342, 2347 (1996), and "'there may be limits on the extent to which an employee in a sensitive or policymaking position may freely criticize his superiors and the policies they espouse.'" Janusaitis v. Middlebury Volunteer Fire Dept., 607 F.2d 17, 26 n.12 (7th Cir. 1979)(quoting Pickering, 391 U.S. at 570 n.3). The United States Supreme Court has also recognized that, when regulating speech, "the government as employer indeed has far broader powers than does the government as sovereign." Waters v. Churchill, 511 U.S. 661, 671, 114 S. Ct. 1878, 1886 (1994). As a result, the Court has "consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large." Id. at 673; 114 S. Ct. at 1887.
Recently, the federal district court for Utah thoughtfully examined the history of the Supreme Court's decisions regarding free speech in the public employment arena and determined that the Pickering analysis falls into four parts. See Andersen v. McCotter, 3 F. Supp. 2d 1223, 1225-29 (D. Utah 1998)(examining Pickering; Connick; Rankin v. McPherson, 483 U.S. 378, 107 S. Ct. 2891 (1987); and Waters). First, the party challenging an employer's action must demonstrate his or her speech addressed a matter of public concern. See id. at 1225. Second, the employee must establish causation; in other words, the employee must show his or her protected speech played a substantial role in causing the adverse employment action. See id. Third, if the employee establishes causation, the employer may escape liability by demonstrating it would have made the same decision regardless of the speech. See id. Fourth, if the reviewing court determines an adverse employment action was in retaliation for the employee's exercise of protected speech, the court must weigh the employee's free speech rights against the interests of the public agency in the efficient operation of its public service. See id. Finally, if the public agency's interests outweigh the employee's free speech rights, the adverse employment action may be justified. See id.; Umbehr, 116 S. Ct. at 2347-48.
Using this analysis, we first address whether Cassidy's speech addressed a public concern.
A.
Cassidy asserts, and the trial court found, that Cassidy's 1992 complaint regarding the wildland fire crew addressed a public concern. The trial court, however, made no specific finding regarding the 1990 protocol modification grievance; nevertheless, Cassidy maintains on appeal that this speech is also protected. Whether speech relates to a public concern is a mixed question of law and fact. See Anderson, 3 F. Supp. 2d at 1225. Accordingly, we defer to the trial court's determination of underlying facts unless we find clear error; however, legal Conclusions about the protected status of Cassidy's speech are within the province of this court. See Connick, 461 U.S. at 148 n.7, 103 S. Ct. at 1690 n.7; Anderson, 3 F. Supp. 2d at 1225; Drake v. Industrial Comm'n, 939 P.2d 177, 181 (Utah 1997).
To determine whether Cassidy's speech addressed a public concern, we look to the Supreme Court's decision in Connick for instruction. In that case, the respondent Myers, an assistant district attorney in New Orleans, filed a civil rights claim under 42 U.S.C. ยง 1983 after she was terminated for insubordination. See Connick, 461 U.S. at 141, 103 S. Ct. at 1687. After her supervising district attorney transferred her to a different section in the crim
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