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In a case involving the rights of public employees to criticize conduct by their government employer, a federal appeals court has ruled that Springfield, Ill., officials may have violated the First Amendment rights of Health Inspector Cynthia Myers when they suspended her for making comments about an open-air produce market that she alleged was operating in violation of state and local laws. The Sept. 5 decision by the 7th U.S. Circuit Court of Appeals reverses a decision by U.S. District Judge Richard Mills, which granted summary judgment in favor of Springfield’s mayor, Karen Hasara, and the acting head of the city’s public health department, Gail Danner. Summary judgment was granted on the grounds that Myers’ comments did not involve a matter of public concern and, therefore, did not outweigh the city’s interest in the effective administration of its health inspection process. Judge Mills also had found that both Hasara and Danner were entitled to qualified immunity as government officials. But the three-judge panel took issue with Mills’ decision. Writing for the court, Judge Michael S. Kanne explained that “[t]he Supreme Court has long held that a public employee maintains a First Amendment right to speak out on matters of public concern even though she works for the government.” As a result, “[a] public employee can be punished for exercising that right only if the facts of the case . . . indicate that the employer’s interest in promoting efficiency of public services outweighs the employee’s interest in free speech.” Myers v. Hasara, No. 99-2680. The case dates back to 1995, when as a supervisor in Springfield’s health inspection program, Myers inspected an open-air market — Parsons’ Produce — and found it was selling packaged food products in violation of state and local laws. Myers filed a report with her superiors, who confirmed her findings and formally notified the city’s director of community services that Parsons was in violation of city and state health laws. Despite several meetings among Springfield officials, however, no action was ever taken against Parsons. In 1996, Myers again inspected the Parsons facility and found that it continued to sell packaged food products without proper license. Myers reported this to Danner and refused to act on Parsons’ application for a new agricultural commodity permit. Danner, however, allegedly acting on the orders of her superiors, including Hasara, approved the permit and ordered Myers not to have any further involvement with Parsons. Ultimately, a local newspaper published an article reporting that Parsons was operating in violation of state and city laws with the city’s knowledge. In response to questions about the article from the manager of a mall at which Parsons operated, Myers allegedly confirmed that Parsons was in violation of its permit, and the city had decided to take no action. After word of Myers’ comments reached Hasara, Myers’ was charged with failing to obey a reasonable directive and suspended for five days. In ruling that Myers’ comments were constitutionally protected, Judge Kanne noted the importance “to good government that public employees be free to expose misdeeds and illegality in their departments.” The court disagreed with Judge Mills’ conclusion that the subject of Myers’ comments was not a matter of public concern. “Myers’ criticism of the city for turning a blind eye to a known permit violation and potential health risk . . . was more than a personal employee grievance,” the court reasoned. “A specific violation of a law that creates a risk to public health, safety or good governance [] is a matter of public concern.” The court also rejected the notion that Hasara and Danner were entitled to qualified immunity because their conduct arose while performing discretionary functions as government officials. At the time of the incident, it was clear “that government employees had a First Amendment right to speak on matters of public concern that must be weighed against the employer’s right to punish insubordination,” the court opined. Hasara and Danner, then “cannot claim not to have known that disciplining Myers under these circumstances would not implicate her right to free speech.” The court remanded the case to the district court for a jury to resolve whether Myers’ right to express herself was outweighed by the city’s interest in “promoting efficient and effective public service.” Joining Judge Kanne in the decision were Judges Harlington Wood, Jr. and Diane P. Wood. Springfield attorney James P. Baker represented Myers, while Hasara and Danner were represented by Robert M. Rogers and Bradley B. Wilson of the Springfield Corporation Counsel’s office. To view the decision in Myers v. Hasara, visit law.com/Illinois.

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