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Cassidy v. Salt Lake County Fire Civil Service Council3/4/1999
inal court--a move she strongly opposed--she expressed her dissatisfaction to her supervisors. See id. Myers also distributed a survey to other district attorneys in her office "concerning office transfer policy, office morale, the need for a grievance committee, the level of confidence in supervisors, and whether employees felt pressured to work in political campaigns." Id.
The Court ultimately decided that none of Myers's speech, except one question on her survey, touched upon a public concern. See id. at 1691. In reaching that Conclusion, the Court reiterated that no "'general standard against which all . . . statements may be Judged'" existed. Id. at 1694 (quoting Pickering, 391 U.S. at 569, 88 S. Ct. at 1735). Instead, the Court examined the "content, form, and context of a given statement, as revealed by the whole record." Id. at 1690.
The record in this case reveals that the 1990 proposed changes in department inspection protocol potentially affected public safety. Likewise, the creation of the wildland fire crew not only concerned the internal operation of the department but also touched upon the public's interest in how the department provided essential public services. Therefore, Cassidy's speech, both in 1990 and in 1992, when viewed in the context of the entire record, addressed public concerns.
B.
Seeing no clear error in the trial court's finding that Cassidy's speech addressed public concerns, we direct our attention to the final factor in the Pickering analysis. For even if Cassidy can establish causation and the Council cannot show the same decision would have been made absent Cassidy's speech, Cassidy's claim must still fail if the department's interests in "'promoting the efficiency of the public services it performs through its employees'" outweigh Cassidy's interests in "'commenting on matters of public concern.'" Umbehr, 116 S. Ct. at 2347-48 (quoting Pickering, 391 U.S. at 568, 88 S. Ct. at 1734). This determination is a mixed question of law and fact, leaving the final determination of law to the reviewing court. See Anderson, 3 F. Supp. 2d at 1225.
First Amendment jurisprudence normally provides broader protection to content-based speech of private citizens. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 725-26 (1964). That balance shifts somewhat, however, when the citizen is a public employee. Justice O'Connor explained this difference is justified by the government's unique position as employer:
"The government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer. The government cannot restrict the speech of the public at large just in the name of efficiency. But where the government is employing someone for the very purpose of effectively achieving its goals, such restrictions may well be appropriate." Waters, 511 U.S. at 675, 114 S. Ct. at 1888.
Thus, the Supreme Court has justified curtailing even core First Amendment rights of public employees, such as the right to participate in political campaigns. See id. at 1886 (citing Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908 (1973); Civil Service Comm'n v. Letter Carriers, 413 U.S. 548, 93 S. Ct. 2880 (1973); Public Workers v. Mitchell, 330 U.S. 75, 67 S. Ct. 556 (1947)); see also Rutan, 497 U.S. at 99, 110 S. Ct. at 2750 (Scalia, J., Dissenting)(recognizing political expression standards differ for public employees).
Even if we were to conclude Cassidy's speech played a significant role in the Council's decision not to promote him, we agree wit
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