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The First Amendment does not protect a police officer who goes outside the chain of command in discussing police corruption issues because such an officer is not engaging in “protected speech,” the 3rd U.S. Circuit Court of Appeals has ruled. In Ober v. Evanko, a unanimous three-judge panel reversed a lower court’s denial of a motion to dismiss a suit brought by a Pennsylvania state police officer who said he suffered retaliation for bypassing the chain of command to tell a high-ranking officer about an FBI investigation of corruption at the State Police Academy. The appellate court found that Darrell Ober’s lawsuit should have been dismissed because it satisfied only the first prong of the two-part balancing test used to determine if an employee has engaged in protected speech established by the U.S. Supreme Court’s 1968 decision in Pickering v. Board of Education. Under the Pickering test, the appellate court found, Ober easily satisfied the first prong because “there is little doubt that speech regarding alleged police corruption is a matter of public concern, particularly given the vital role state police play in promoting public safety and enforcing and upholding the laws.” But the court said the suit failed the second prong that focuses on the context in which the speech was made and government’s interest in regulating it. Writing for the panel, visiting U.S. District Judge Joseph E. Irenas of the District of New Jersey found that Pickering‘s second prong requires “a fact-sensitive and deferential weighing of the government’s legitimate interests” in regulating a public employee’s speech. Irenas, in an unpublished opinion joined by 3rd Circuit Judges Richard L. Nygaard and D. Brooks Smith, found that court review is especially deferential in suits brought by law enforcement personnel. “Courts have given law enforcement agencies wide latitude to regulate an employee’s speech when that speech impacts on areas such as discipline, morale, harmony, uniformity, and trust in the ranks,” Irenas wrote. Ober’s case, Irenas said, “presents precisely the type of situation in which latitude should be given to the state police.” According to court papers, Ober was working as the division director for the Pennsylvania State Police Internal Affairs Division when he was approached in 1998 by FBI special agent Ralph Kush. In the suit, Ober claims Kush told him that the FBI suspected Pennsylvania state police trooper Kipp Stanton of taking bribes in return for rigging the cadet selection process and asked for Ober’s help in gathering information. The suit says Ober bypassed the established chain of command and spoke about the investigation with Lt. Col. Robert Hickes, the department’s deputy commissioner of staff. Under state police regulations, troopers are required to “promptly report to their supervisors any information which comes to their attention and which tends to indicate that any other member or employee has violated any law, rule, regulation or order.” Ober conceded that he never discussed the FBI investigation with his direct supervisor at the time, Maj. Hawthorne Conley, and that the FBI agent never told him to keep the investigation secret, and never suggested that any of Ober’s superiors were involved. According to the suit, about seven months after Ober told Hickes of the FBI probe, the two informed state police Commissioner Paul Evanko. By that time, the FBI had completed its investigation and determined that Stanton was the only trooper engaged in any wrongdoing, according to court papers. Neither Ober nor Hickes was disciplined for violating chain-of-command regulations, the suit says, but Ober claims he was targeted for retaliation. Over the next few months, Ober claims he was removed from volunteer positions, investigated for his off-duty activities, denied educational opportunities, and assigned to undesirable posts. He also claims the retaliation led to his being passed over for a promotion to the rank of major. U.S. District Judge William W. Caldwell of the Middle District of Pennsylvania refused to dismiss the suit, finding that the First Amendment right asserted by Ober was “clearly established” and that state police officials therefore were not entitled to qualified immunity. Now the 3rd Circuit has ruled that Caldwell erred because Ober never engaged in any “protected speech.” Irenas found that Ober chose to violate the chain of command even though he had no reason to suspect that his superiors might be involved in the corruption. “While it is possible that bypassing the chain of command might be justified if an officer’s superiors were reasonably suspected of wrongdoing, nothing in Ober’s conversation with Kush or elsewhere in the record suggests that Conley, Conley’s superiors, or Commissioner Evanko were involved in Stanton’s scheme or could not be trusted,” Irenas wrote. “Ober was required by regulation to report his conversation to his supervisor; his decision to go outside of the appropriate hierarchy is not a constitutionally protected free speech right given the strong governmental interest in having that regulation followed.” According to court records, the target of the FBI investigation, Stanton, was accused of attempting to help Dennis Bridge to bribe his way into the State Police Academy after Bridge failed the entrance examination. Prosecutors said in court papers that Bridge and Stanton thought that Michael Fiore, a Democratic committeeman, would take the payoff and pass it to state Rep. Joseph Preston in return for a police academy opening. Preston told investigators he knew nothing of the arrangement, and Fiore alerted investigators after Stanton made the bribe proposal to him. Bridge pleaded guilty to conspiracy to obstruct the administration of law and was sentenced to probation. Stanton was suspended and later removed from the force, but the criminal charges against him were dropped in 2001 after a judge threw out critical wiretap evidence.

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