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Click here for the full text of this decision FACTS:Between May 2004 and January 2006, Thomas Nixon wrote a monthly column entitled “The Insider” in 002 Magazine, a local Houston periodical. In such articles, Nixon identified himself as a police officer, discussed his police-related activities, commented on his duties as an officer and HPD policies and � according to HPD � made “caustic, offensive, and disrespectful” statements regarding certain groups of citizens, including minorities, women and the homeless. The Houston Police Department eventually received a citizen complaint about Nixon’s articles. On or about Sept. 28, 2005, HPD initiated an internal affairs investigation to determine if Nixon and his articles violated any HPD policies. The investigation determined that Nixon’s activities related to authoring and publishing the articles violated numerous HPD policies and undermined the efficiency of the services provided by HPD. Consequently, HPD temporarily suspended Nixon for 15 days without pay beginning on Feb. 1, 2006. On Jan. 18, 2006, there was a highly publicized high-speed police pursuit involving a fleeing suspect and state and local law enforcement officers, including HPD officers. After the identification of the fleeing suspect, HPD supervisors ordered all HPD officers to discontinue the pursuit but permitted them to follow at a distance. Nonetheless, the fleeing suspect eventually collided with an innocent motorist. Although Nixon was not involved in the pursuit, he knew about it from local television reports he saw while he was off-duty, at home and preparing for his shift. As soon as his shift started, Nixon proceeded to the scene of the accident even though he was never instructed to do so. Upon arriving, Nixon asked a supervisor if anyone was going to make a statement to the media and suggested that he (Nixon) do so. After the supervisor failed to respond (other than by laughing), Nixon proceeded to speak to the media. Nixon, however, was not designated as an HPD spokesperson and was not authorized to make statements to the media at the scene. In his statement, Nixon criticized HPD’s decision to disengage the pursuit and stated he was “embarrassed to be a police officer,” because the department did not stop fleeing suspects. The next day, on Jan. 19, 2006, Nixon continued his criticism of HPD and its pursuit policy by voluntarily calling into multiple radio talk shows and by giving television interviews. After his remarks on both days, Nixon informed the HPD media relations office that he had spoken to the media, presumably in an attempt to comply with his employer’s media policy. In response to these statements, HPD launched an investigation against Nixon. On June 2, 2006, HPD terminated Nixon’s employment. HOLDING:Affirmed. To establish a claim under 42 U.S.C. �1983 claim for employment retaliation related to speech, a plaintiff-employee must show that: 1. he suffered “an adverse employment action;” 2. he spoke “as a citizen on a matter of public concern;” 3. his interest in the speech outweighs the government’s interest in the efficient provision of public services; and 4. the speech “precipitated the adverse employment action.” Neither party, the court stated, disputed that Nixon’s 15-day suspension and later termination constituted adverse employment actions or that his speech precipitated the adverse employment actions. Thus, the court set out to determine: 1. whether Nixon was speaking in his role as an employee or as a citizen on a matter of public concern; and 2. if he was speaking as a citizen, whether his interest in speaking outweighed the government’s interest in efficiency. Under the 2006 U.S. Supreme Court decision Garcetti v. Ceballos, the court stated that for an employee’s speech to qualify for First Amendment protection, he must be speaking “as a citizen on a matter of public concern.” If an employee is not speaking in his or her role as an employee, but rather as a citizen on a matter of public concern, “the possibility of a First Amendment claim arises,” the court stated. It is clear, the court stated, that Nixon’s Jan. 18, 2006, media statement at the scene of the accident is not protected by the First Amendment, because it was made pursuant to his official duties and during the course of performing his job. Even if Nixon’s Jan. 19, 2006, media statements constitute citizen speech, the court stated, such speech � in conjunction with his Jan. 18, 2006, statements � is not afforded First Amendment protection. The court stated that Nixon’s interest in commenting upon matters of public concern � although significant � was outweighed by the government’s substantial interests in the efficient provision of government services. Nixon’s 2006 media statements, the court stated, undermined HPD’s interests in maintaining discipline and order among employees and in promoting and maintaining public confidence in HPD. Nixon’s statements and conduct, the court stated, smack of insubordination. “[I]t is entirely reasonable for HPD to predict that such insubordination and likely acts of future insubordination would harm HPD’s ability to maintain discipline and order in the department, morale within the department, and close-working relationships between Nixon, his fellow officers, and his supervisors.” Furthermore, the court stated that HPD could reasonably predict that an officer criticizing HPD policy while masking as an official spokesperson at the scene of an accident and discussing his past violations of HPD policy and future willingness to violate such policies would bring the mission of HPD and the professionalism of its officers into disrepute. Similarly, the court stated that given the exposure of Nixon’s “Insider” articles to the Houston community and the caustic statements in some of his articles, it was reasonable for HPD to believe that his articles would negatively impact the relationship between HPD and Houston citizens and generally bring “the mission of the [police department] and the professionalism of its officers into serious disrepute” � certainly legitimate and substantial interests, harm to which would undoubtedly impair the proper performance of HPD functions. Nixon asserted the same interests in his magazine articles as he did with respect to his January 2006 media statements � his interest in commenting upon matters of public concern and the public’s interest in receiving information on police protection and public safety issues. The court found the value of Nixon’s articles, however, “somewhat diminished by the fact that a significant amount of his speech” was directed “at denigrating certain segments of the Houston population.” Although Nixon’s free speech interests are substantial, the court found them to be simply outweighed by the important government interests discussed above. The court viewed his comments deriding and insulting the community not as legitimate criticism of police practices but as a direct blow to the relationship with the community HPD serves. “HPD,” the court stated, “must be able to prohibit such speech if it is to perform its function and maintain its professionalism.” OPINION:Garwood, Garza and Benavides, JJ.

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