CORRECTIONAL OFFICER WINS
FREE SPEECH BATTLE
When Sonoma County
Correctional Officer, Jeff DiCello, wrote a letter of dissatisfaction to
Sonoma County Independent newspaper, he didn't even intend for
his letter to be published. DiCello only wanted to voice his disgust
with a series of articles about the jail which implied that a number of
inmate deaths and other problems were the fault of correctional
personnel, such as himself. In defending himself and his coworkers
against what he considered to be biased and inaccurate reporting,
DiCello used a caustic, if not insulting, parody with [Washington
Post] reporters Woodward and Bernstein to deride the Independent's
reporters who had authored the series. Unfortunately, the Independent
decided on its own to print DiCello's letter.
The sheriff's department
turned the matter into an internal affairs investigation and issued
DiCello a letter of reprimand for his "Letter to the Editor."
DiCello fought the letter of reprimand through the internal appeals
process (which culminated with the sheriff himself) to no avail.
While the case only
involved a letter of reprimand, the Legal Defense Fund (LDF) board of
trustees felt that freedom of speech for law enforcement employees was
of such importance as to justify litigating the matter. LDF panel
attorney Bill Williams was brought in to represent DiCello. A petition
for writ of mandate was brought in the Sonoma County Superior Court, but
the judge sided with county employer, stating to the effect that the
more caustic portions of letter could be severed from protected speech
and could lawfully support a disciplinary action.
The case was appealed to
the State Court of Appeal for the First District. On August 30, 2000,
the court issued its decision reversing the superior court judgment and
upholding DiCello's right to freedom of speech. The court held that
DiCello's more caustic comments could not be severed from the rest of
the letter and that the whole letter was protected speech. The court
went on to state: "Once a court finds that an employee's speech is
protected by the First Amendment, any action by an employer to restrain
this speech is unconstitutional."
Williams, who also
successfully represented former Chico POA president Terry Moore in
another major free speech case, was glad that the court recognized
DiCello's right to express his opinion about the issues in the jail and
the reporting that was done. "This case was a bit unusual in that
officer DiCello was not criticizing his employer, but was simply
defending himself and his coworkers from unjust criticism by persons
outside the department. However, the legal analysis is still the same.
Once you show that the speech addresses a matter of public concern, then
you must balance the employee's interest in expressing himself on the
issue against the employer's interest in operational efficiency. In this
case, the employer did not show any real or potential impairment to
operations. This case is also important because the court rejected the
employer's effort to sever out the more caustic portions of the speech
from the clearly protected overall content to the letter. Because it
represents an important progression in a line of state cases addressing
public employee free speech rights, we may ask that it be officially
published so that it can be used as precedent."
DiCello is grateful to
LDF for backing him and to Williams for the hard work put in on his
case. "I was just objecting to the clear bias of a series of
articles that really impugned the integrity of myself and all of the
hard-working correctional officers in the county. As a career law
enforcement officer, I was deeply offended at the portrayal of us as
incompetent, if not deliberately neglectful of our sworn duties. I'm
glad that the court recognized that I had a right to speak out on this
issue."
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