Trusz v. UBS Realty Investors, LLC ( 2015 )

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RICHARD TRUSZ v. UBS REALTY
INVESTORS, LLC, ET AL.
(SC 19323)
Palmer, Zarella, Eveleigh, McDonald, Espinosa, Robinson and
Vertefeuille, Js.
Argued March 24—officially released October 13, 2015
Procedural History
Action to recover damages for the allegedly wrongful
termination of the plaintiff’s employment, and for other
relief, brought to the United States District Court for
the District of Connecticut, where the defendants filed
a motion for summary judgment; thereafter, the court,
Squatrito, J., certified to this court a question of law
regarding the interpretation of General Statutes § 31-
51q.
Wesley W. Horton, with whom were Todd Steigman,
Karen L. Dowd and, on the brief, Jacques J. Parenteau,
for the appellant (plaintiff).
James A. Wade, with whom were Brett J. Boskiewicz
and, on the brief, Thomas J. Donlon, for the appel-
lees (defendants).
Sandra J. Staub, David J. McGuire and Martin B.
Margulies filed a brief for the American Civil Liberties
Union of Connecticut as amicus curiae.
Charles Krich, principal attorney, and Jane Kelleher,
law student intern, filed a brief for the Commission on
Human Rights and Opportunities as amicus curiae.
Daniel A. Schwartz, Christopher T. Parkin and Clar-
isse N. Thomas filed a brief for Connecticut Business
and Industry Association, Inc., as amicus curiae.
Opinion
PALMER. J. This case comes before us on certifica-
tion from the United States District Court for the Dis-
trict of Connecticut pursuant to General Statutes § 51-
199b. The certified question that we must answer is:
‘‘Does the rule announced by the [United States]
Supreme Court in Garcetti v. Ceballos, 547 U.S. 410,
[421, 126 S. Ct. 1951, 164 L. Ed. 2d 689] (2006), i.e., ‘that
when . . . employees make statements pursuant to
their official duties, the employees are not speaking
as citizens for [f]irst [a]mendment purposes, and the
[c]onstitution does not insulate their communications
from employer discipline,’ apply to a claim that an
employer violated [General Statutes] § 31-51q1 by sub-
jecting an employee ‘to discipline or discharge on
account of the exercise by such employee of rights
guaranteed by . . . [§§] 3, 4 or 14 of article first of the
[c]onstitution of the state . . . .?’’ (Footnote added.)
We conclude that the answer to this question is ‘‘no.’’ We
further conclude that a modified form of the Pickering/
Connick balancing test applies to speech by a public
employee pursuant to the employee’s official duties
under the state constitution; see Connick v. Myers, 461
U.S. 138, 142, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) (in
determining scope of public employee’s constitutional
right to free speech in workplace, court’s task is to seek
‘‘a balance between the interests of the [employee], as
a citizen, in commenting upon matters of public concern
and the interest of the [s]tate, as an employer, in promot-
ing the efficiency of the public services it performs
through its employees’’ [internal quotation marks omit-
ted]); Pickering v. Board of Education, 391 U.S. 563,
568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968) (same); and
that § 31-51q extends the same protection to similar
speech by a private employee. Specifically, we conclude
that, under the state constitution, employee speech pur-
suant to official job duties on certain matters of signifi-
cant public interest is protected from employer
discipline in a public workplace, and § 31-51q extends
the same protection to employee speech pursuant to
official job duties in the private workplace.
The District Court’s certification order sets forth the
following facts that we accept as true for purposes of
responding to the certified question. ‘‘[The defendant
UBS Realty Investors, LLC (UBS Realty)] provides real
estate investment management services to clients, such
as pension funds, public employee retirement systems,
foundations, and private investors. UBS Realty is regis-
tered with the Securities and Exchange Commission as
an investment advisor. UBS Realty is a subsidiary of
[the defendant] UBS AG2 and is part of UBS AG’s
[g]lobal [a]sset [m]anagement division. UBS AG is a
corporation whose stock is publicly traded on the New
York Stock Exchange.
‘‘At all times pertinent to this action, the plaintiff,
Richard Trusz, was the head of UBS Realty’s valuation
unit and a [m]anaging [d]irector of UBS Realty. As head
of the valuation unit, [the plaintiff] managed the process
which ultimately resulted in the valuation of properties
held in UBS Realty’s private real estate investment
funds. In early 2008 [the plaintiff] reported to UBS
Realty management what he contended were errors in
the valuation of certain properties held by UBS Realty
in various investment funds. At that time [the plaintiff]
also expressed to UBS Realty management his opinions
that UBS Realty was obligated to correct and disclose
to investors the valuation errors, that UBS Realty was
obligated to return to investors any excess management
fees received as a result of the valuation errors, that
the valuation unit had insufficient staff and resources
to adequately perform its function, that UBS Realty’s
internal controls regarding valuation were inadequate,
that UBS Realty improperly provided preferential treat-
ment to certain investors, and that UBS Realty was
breaching fiduciary duties it owed to its investors.
‘‘UBS Realty’s compliance officer subsequently inves-
tigated [the plaintiff’s] contentions. Although the report
issued at the conclusion of this investigation confirmed
the valuation errors reported by [the plaintiff], it con-
cluded that none of the errors rose to a level that
required UBS Realty to restate the values to its investors
or return any management fees that had been paid by
investors. A third-party auditor for some of the funds
managed by UBS Realty also investigated [the plain-
tiff’s] claims of valuation errors. The auditor confirmed
valuation errors, but concluded that these errors were
not material to the funds’ financial statements and did
not require a restatement of any of the financial state-
ments for the funds.
‘‘[The plaintiff] disagreed with the conclusions of the
compliance officer and the third-party auditor and con-
tinued to express to both UBS Realty and UBS AG his
opinion that by not disclosing property valuation errors
to investors and not adjusting management fees in light
of these valuation errors, UBS Realty was violating its
fiduciary, legal, and ethical obligations to its investors.
‘‘[The plaintiff] subsequently filed discrimination and
retaliation complaints with the Connecticut Commis-
sion on Human Rights and Opportunities, the United
States Equal Employment Opportunity Commission,
and the United States Occupational Safety and Health
Administration. [The plaintiff] claimed that UBS Realty
discriminated against him based on a disability—a heart
condition—and later retaliated against him by taking
adverse employment actions, culminating in his termi-
nation in August, 2008, because he opposed what he
believed was unlawful activity by the defendants and
because he had reported alleged securities laws viola-
tions. The defendants dispute [the plaintiff’s] allega-
tions of unlawful activity. [The plaintiff] sued [the
defendants] in federal court in 2009.’’ (Footnote added.)
The plaintiff alleged, among other things, that the defen-
dants had violated § 31-51q by subjecting him to disci-
pline ‘‘on account of the exercise . . . of rights
guaranteed by . . . [§§] 3, 4 or 14 of article first of the
[c]onstitution of Connecticut.’’
Thereafter, the defendants filed a motion for sum-
mary judgment contending that they were entitled to
judgment as a matter of law on the plaintiff’s claim
under § 31-51q.3 Before the court, Squatrito, J.,4 could
rule on that motion, this court issued its decision in
Schumann v. Dianon Systems, Inc., 304 Conn. 585,
598, 43 A.3d 111 (2012), in which we concluded that
the United States Supreme Court’s decision in Garcetti,
holding that speech pursuant to a public employee’s
official job duties was not protected by the first amend-
ment; Garcetti v. Ceballos, supra, 547 U.S. 421 (public
employees who make statements pursuant to their offi-
cial duties are not speaking as citizens for purposes of
first amendment); applies to claims brought pursuant
to § 31-51q against a private employer that are based
on the first amendment. See Schumann v. Dianon Sys-
tems, Inc., supra, 598. In light of our decision in Schu-
mann, the plaintiff filed in the District Court a motion
for conference to discuss new authority in which he
stated that he intended to argue that Garcetti did not
apply to his retaliation claim because he was raising
that claim under the state constitution.5 The District
Court asked the parties to submit briefs on the question
of whether it should certify the issue raised by the
plaintiff to this court. The defendants filed a brief con-
tending that § 31-51q did not apply because the plain-
tiff’s workplace speech did not relate to matters of
public concern and, therefore, was not constitutionally
protected under either Garcetti or the Pickering/Con-
nick balancing test.6 The defendants also argued, how-
ever, that if the District Court were to determine that
the plaintiff’s speech did involve matters of public con-
cern, it should certify the issue to this court. The plain-
tiff contended in his brief that the requirements for
certification set forth in § 51-199b had been met and
the question of whether the Garcetti standard applies
to the free speech provisions of the state constitution
should be certified to this court, provided that doing
so would not delay proceedings in the District Court.
Thereafter, the District Court issued its order of certifi-
cation to this court, and we accepted the question of
law previously set forth in this opinion.7
To provide context for our resolution of the certified
question, we briefly review the governing legal princi-
ples. ‘‘In Pickering v. Board of Education, [supra, 391
U.S. 568] . . . the court . . . recognized that a govern-
ment has interests as an employer in regulating the
speech of its employees that differ significantly from
those it possesses in connection with regulation of the
speech of the citizenry in general. The court then set
forth a general principle governing the constitutionality
of government restrictions on the speech of its employ-
ees: in evaluating the constitutionality of government
restrictions on an employee’s speech, a court must
arrive at a balance between the interests of the
[employee], as a citizen, in commenting upon matters
of public concern and the interest of the [s]tate, as
an employer, in promoting the efficiency of the public
services it performs . . . .’’ (Internal quotation marks
omitted.) Schumann v. Dianon Systems, Inc., supra,304 Conn. 601. ‘‘In Connick v. Myers, supra, 461 U.S.
150, the court added a modification to the general bal-
ancing test promulgated in Pickering. Under Connick,
if a government employee’s speech cannot be fairly
characterized as constituting speech on a matter of
public concern, it is unnecessary . . . to scrutinize the
reasons for [his or] her discharge.’’ (Internal quotation
marks omitted.) Schumann v. Dianon Systems, Inc.,
supra, 601. Thus, under the Pickering/Connick balanc-
ing test, employee speech in a public workplace is pro-
tected from employer discipline if it involves a matter
of public concern and if the employee’s interest in com-
menting on the matter outweighs the employer’s inter-
est in promoting the efficient performance of public
services.
In Garcetti v. Ceballos, supra, 547 U.S. 418–19, a
majority of the United States Supreme Court noted ‘‘the
practical difficulties of applying the principles articu-
lated in Pickering and Connick . . . [and] then
observed that ‘[g]overment employers, like private
employers, need a significant degree of control over
their employees’ words and actions; without it, there
would be little chance for the efficient provision of
public services. . . . Public employees, moreover,
often occupy trusted positions in society. When they
speak out, they can express views that contravene gov-
ernmental policies or impair the proper performance
of governmental functions.’ ’’ (Citation omitted.) Schu-
mann v. Dianon Systems, Inc., supra, 304 Conn. 602.
‘‘The court emphasized that [u]nderlying [its] cases has
been the premise that while the [f]irst [a]mendment
invests public employees with certain rights, it does
not empower them to constitutionalize the employee
grievance. [Garcetti v. Ceballos, supra] 420, quoting
Connick v. Myers, supra, 461 U.S. 154. Thus, the court
concluded that, when public employees make state-
ments pursuant to their official duties, the employees
are not speaking as citizens for [f]irst [a]mendment
purposes, and the [c]onstitution does not insulate their
communications from employer discipline. Garcetti v.
Ceballos, supra, 421 . . . .’’8 (Citation omitted; foot-
notes omitted; internal quotation marks omitted.) Schu-
man v. Dianon Systems, Inc., supra, 603. The court in
Garcetti reasoned that ‘‘[r]estricting speech that owes
its existence to a public employee’s professional
responsibilities does not infringe any liberties the
employee might have enjoyed as a private citizen. It
simply reflects the exercise of employer control over
what the employer itself has commissioned or created.’’
Garcetti v. Ceballos, supra, 421–22. Accordingly, under
Garcetti, a court will subject the employee’s speech
to the Pickering/Connick balancing test only if it first
determines that the employee was not speaking pursu-
ant to his or her official duties; if the employee was
speaking as an employee rather than as a citizen, the
speech is not protected by the first amendment.
In Cotto v. United Technologies Corp., 251 Conn. 1,
8, 738 A.2d 623 (1999), a majority of this court concluded
that § 31-51q prohibits a private employer from disci-
plining an employee for engaging in constitutionally
protected speech not only when the speech occurs out-
side the workplace, but also when it occurs in the work-
place.9 Thereafter, in Schumann v. Dianon Systems,
Inc., supra, 304 Conn. 610–11, we addressed a claim by
an employee against his private employer pursuant to
§ 31-51q alleging that the employer had unlawfully disci-
plined him for exercising his first amendment rights in
the workplace. The plaintiff in Schumann claimed that
‘‘Garcetti, which involved a public employer-employee
relationship, should not be applied to the private work-
place’’ so as to limit the scope of employee speech
that is protected by § 31-51q. Id., 598. The defendant
contended that, to the contrary, § 31-51q applied only
to speech by a private employee that would be protected
from employer discipline in a public workplace under
Garcetti. Id., 597–98. This court agreed with the defen-
dant.10 Id., 598. We did not reach the plaintiff’s claim in
Schumann that the state constitution provided broader
protection than Garcetti because the plaintiff had failed
to raise the issue in the trial court and, even if the
issue had been properly before us, the plaintiff’s speech
would not have been protected under the broader Pick-
ering/Connick balancing test that the plaintiff advo-
cated. Id., 619. The state constitutional issue that we
were not required to decide in Schumann is now
squarely before us.
Before considering the merits of the certified ques-
tion, however, we must first address a threshold issue.
The defendants claim that this court in Cotto v. United
Technologies Corp., supra, 251 Conn. 1, ‘‘left open’’ the
question of whether any speech in the private work-
place is constitutionally protected, and they contend
that it is not. The defendants further contend that,
because § 31-51q applies only to constitutionally pro-
tected speech, no § 31-51q claim arising from speech
in the workplace is possible. Contrary to the defendants’
claim, however, Cotto clearly held that at least some
employee speech in the workplace is constitutionally
protected. See id., 8 (‘‘§ 31-51q confirms the legislature’s
intent to provide coverage for the exercise of constitu-
tional rights at a private as well as at a public work-
place’’ [emphasis added]). Otherwise, § 31-51q would
not protect it. See General Statutes § 31-51q (employer
may not subject employee to discipline ‘‘on account of
the exercise by such employee of rights guaranteed by
the first amendment . . . or [§§] 3, 4 or 14 of article
first of the [c]onstitution of the state’’). Indeed, there
was no suggestion to the contrary, either by the defen-
dant in Cotto or by Justice Borden in his concurring
and dissenting opinion in that case. Specifically, Justice
Borden did not argue that employee speech in a private
workplace was not constitutionally protected, that is,
that it could be prohibited or punished by the govern-
ment at will, but only that interference with such speech
by a private employer did not violate the employee’s
constitutional rights. Cotto v. United Technologies
Corp., supra, 26; but see footnote 9 of this opinion.
Moreover, nothing in Pickering, Connick or Garcetti
supports the proposition that speech in the workplace,
whether public or private, generally enjoys less first
amendment protection than speech elsewhere. Rather,
the United States Supreme Court emphasized in Con-
nick that even speech by an employee on personal and
private matters enjoys first amendment protection in
the workplace, in the sense that such speech cannot
be lawfully prohibited or punished by the government.
See Connick v. Myers, supra, 461 U.S. 147 (‘‘We in no
sense suggest that speech on private matters falls into
one of the narrow and well-defined classes of expres-
sion which carries so little social value, such as obscen-
ity, that the [s]tate can prohibit and punish such
expression by all persons in its jurisdiction. . . . For
example, an employee’s false criticism of his employer
on grounds not of public concern may be cause for his
discharge but would be entitled to the same protection
in a libel action accorded an identical statement made
by a man on the street.’’ [Citations omitted.]). The court
also emphasized that it was holding ‘‘only that when a
public employee speaks not as a citizen upon matters
of public concern, but instead as an employee upon
matters only of personal interest, absent the most
unusual circumstances, a federal court is not the appro-
priate forum in which to review the wisdom of a person-
nel decision taken by a public agency allegedly in
reaction to the employee’s behavior.’’ Id. In other words,
although workplace speech on private matters is pro-
tected by the first amendment to the same extent that
it is protected elsewhere insofar that it cannot be pun-
ished or prohibited by the government acting in its role
as a lawmaker, a public employer nevertheless may
discipline the employee for such speech in its role as
an employer, subject to certain limitations.
We do not suggest that, because all speech in the
workplace is constitutionally protected to the same
extent as speech elsewhere, the protection provided to
the speech of public employees by the United States
Supreme Court’s decisions in Pickering, Connick and
Garcetti was based on something other than first
amendment principles. To the contrary, the court has
drawn the line between constitutionally protected
speech that is also protected from discipline by a public
employer and constitutionally protected speech that
may subject the employee to employer discipline by
analyzing ‘‘the hierarchy of [f]irst [a]mendment values
. . . .’’ (Internal quotation marks omitted.) Id., 145. The
court concluded in Connick that, because certain
speech is low in the hierarchy of constitutionally pro-
tected speech, the first amendment does not protect it
from discipline by a public employer. Id., 145–47. Only
in that special and narrow sense, however, may it be
said that such speech is not constitutionally protected.11
Although we recognize that this distinction may seem
somewhat technical, making the distinction is
important in order to avoid the type of confusion into
which the defendants in the present case appear to
have fallen, and also to avoid any suggestion that the
government, acting as a lawmaker, has greater leeway
to regulate speech in the workplace than it has to regu-
late speech in other locales. Because it is undisputed
that § 31-51q was intended to prevent interference by
a private employer with the constitutionally protected
speech of its employees, and because employee speech
in a private workplace is constitutionally protected to
the same extent that it is protected in other locales, in
the sense that the government cannot prohibit or punish
it, we reject the defendants’ claim that ‘‘no § 31-51q
claim is possible’’ based on employee speech in a pri-
vate workplace.12
We note, however, that this court held in Schumann
v. Dianon Systems, Inc., supra, 304 Conn. 607–608, that
§ 31-51q was not intended to confer on employees in the
private sector a broader right to be free from employer
discipline on the basis of speech in the workplace than
the constitutionally based right enjoyed by employees
in the public sector, and the plaintiff in the present case
has not asked us to reconsider that decision. See id.,
607 (‘‘[w]e disagree with those cases holding Garcetti
inapplicable in the private sector because of their incon-
gruous effect of giving private sector employees greater
workplace free speech rights than those afforded to
their public sector counterparts’’). In other words, we
concluded in Schumann that any limitations on the first
amendment right of employees in a public workplace
to be free from discipline on the basis of their speech
also apply to the speech rights of employees in a private
workplace under § 31-51q. We can perceive no reason,
and the plaintiff does not contend, that the same princi-
ple should not apply to speech rights under the state
constitution. The defendants contend, however, that
the scope of the right of an employee in a private work-
place to be free from employer discipline based on
speech pursuant to § 31-51q is narrower than the analo-
gous constitutionally based right of a public employee
in some respects. Accordingly, the questions that we
must answer are: (1) What is the scope of the protection
afforded by the free speech provisions of the state con-
stitution to a public employee’s speech in the work-
place?; and (2) Is the protection afforded by § 31-51q
to an employee’s speech in a private workplace coexten-
sive with or narrower than the protection afforded by
the speech provisions of the state constitution to speech
by an employee in a public workplace?13
I
We first address the scope of a public employee’s
right to be protected from employer discipline on the
basis of workplace speech under the speech provisions
of the state constitution. The plaintiff contends that the
free speech provisions of the state constitution provide
broader protection to the speech of public employees
than does the first amendment. Specifically, the plaintiff
contends that the flexible Pickering/Connick formula,
and not the bright line rule of Garcetti, applies to work-
place speech by a public employee under the state con-
stitution. We conclude that the state constitution
incorporates a slightly modified form of the Pickering/
Connick test.
‘‘It is [well established] that federal constitutional
and statutory law establishes a minimum national stan-
dard for the exercise of individual rights and does not
inhibit state governments from affording higher level
of protection for such rights. . . . State v. Geisler, 222
Conn. 672, 684, 610 A.2d 1225 (1992). In determining
the contours of the protections provided by our state
constitution, we employ a multifactor approach that we
first adopted in Geisler. The factors that we consider
are: (1) the text of the relevant constitutional provi-
sions; (2) related Connecticut precedents; (3) persua-
sive federal precedents; (4) persuasive precedents of
other state courts; (5) historical insights into the intent
of [the] constitutional [framers]; and (6) contemporary
understandings of applicable economic and sociologi-
cal norms.’’ (Internal quotation marks omitted.) State
v. Kelly, 313 Conn. 1, 14, 95 A.3d 1081 (2014). We now
turn to these factors.
A
We first address the text of the operative constitu-
tional provision. Article first, § 4, of the Connecticut
constitution provides: ‘‘Every citizen may freely speak,
write and publish his sentiments on all subjects, being
responsible for the abuse of that liberty.’’ Article first,
§ 5, of the Connecticut constitution provides: ‘‘No law
shall ever be passed to curtail or restrain the liberty of
speech or of the press.’’ Finally, article first, § 14, of the
Connecticut constitution provides: ‘‘The citizens have
a right, in a peaceable manner, to assemble for their
common good, and to apply to those invested with the
powers of government, for redress of grievances, or
other proper purposes, by petition, address or remon-
strance.’’
This court previously has held that because, unlike
the first amendment to the federal constitution: (1) arti-
cle first, § 4, of the Connecticut constitution includes
language protecting free speech ‘‘on all subjects’’; (2)
article first, § 5, of the Connecticut constitution uses the
word ‘‘ever,’’ thereby providing ‘‘additional emphasis to
the force of the provision’’; (internal quotation marks
omitted) State v. Linares, 232 Conn. 345, 381, 655 A.2d
737 (1995); and (3) article first, § 14, of the Connecticut
constitution provides a right to seek redress for griev-
ances by way of ‘‘remonstrance,’’ and therefore ‘‘sets
forth free speech rights more emphatically than its fed-
eral counterpart’’; (internal quotation marks omitted)
State v. Linares, supra, 381; these textual differences
‘‘warrant an interpretation separate and distinct from
that of the first amendment.’’ (Internal quotation marks
omitted.) Id. The text of article first, § 4, of the Connecti-
cut constitution providing that citizens of this state are
free to speak ‘‘on all subjects, being responsible for the
abuse of that liberty’’; (emphasis added); is particularly
relevant in the present case. This broad and encom-
passing language supports the conclusion that the state
constitution protects employee speech in the public
workplace on the widest possible range of topics, as
long as the speech does not undermine the employer’s
legitimate interest in maintaining discipline, harmony
and efficiency in the workplace. See Ozols v. Madison,
United States District Court, Docket No. 3:11cv1324
(SRU) (D. Conn. August 20, 2012) (‘‘[t]he breadth of
the Connecticut [c]onstitution’s language suggests that
a citizen’s speech is protected, even when the speech
is about her employment’’). This standard is more con-
sistent with the Pickering/Connick standard than with
Garcetti. Compare Pickering v. Board of Education,
supra, 391 U.S. 568 (employee has right to comment on
matters of public interest that must be weighed against
employer’s interest in promoting efficient services); id.,
570 (noting employer’s interest in maintaining disci-
pline, harmony, personal loyalty and confidence in
workplace), with Garcetti v. Ceballos, supra, 547 U.S.
423–24 (employee’s speech pursuant to his or her offi-
cial job duties is not constitutionally protected, even if
it involves matter of public concern and employee’s
interest in commenting on matter outweighs employer’s
interest in performing its services efficiently). It is
apparent, therefore, that the text of article first, § 4,
supports the plaintiff’s position that the Pickering/Con-
nick balancing test provides the proper standard under
the state constitution.
In support of their claim to the contrary, the defen-
dants contend that, because article first, § 4, of the
Connecticut constitution provides that ‘‘[e]very citi-
zen,’’ and not every person, ‘‘may freely speak, write and
publish his sentiments on all subjects,’’ the provision
is narrower than the first amendment. They further
contend that, when a person is speaking pursuant to
his or her official job duties, the person is not speaking
as a citizen and, therefore, the speech is not protected
under this provision. Cf. Garcetti v. Ceballos, supra, 547
U.S. 421 (‘‘when public employees make statements
pursuant to their official duties, the employees are not
speaking as citizens for [f]irst [a]mendment purposes’’);
Connick v. Myers, supra, 461 U.S. 146 (‘‘[w]hen
employee expression cannot be fairly considered as
relating to any matter of political, social, or other con-
cern to the community, government officials should
enjoy wide latitude in managing their offices, without
intrusive oversight by the judiciary in the name of the
[f]irst [a]mendment’’). The defendants’ argument, how-
ever, proves too much. Taken to its logical conclusion,
the defendants’ interpretation would permit the state
to regulate all speech on personal or private matters
that is not made in the speaker’s capacity as a citizen,
regardless of where the speech occurred. There is no
evidence that the constitutional framers intended to
impose such severe limits on the speech rights of the
state’s citizenry. Moreover, the defendants’ interpreta-
tion would render article first, § 4, internally inconsis-
tent, as it would prevent citizens from speaking freely
‘‘on all subjects’’; (emphasis added) Conn. Const., art.
1, § 4; including those subjects that do not involve the
speaker’s role as a citizen. For these reasons, we reject
the defendants’ contention.
B
We next consider the second Geisler factor, the hold-
ings and dicta of this court and the Appellate Court.
As we have indicated, this court held in State v. Linares,
supra, 232 Conn. 381, that the free speech provisions
of the state constitution have ‘‘an interpretation sepa-
rate and distinct from that of the first amendment’’;
(internal quotation marks omitted); and that ‘‘the fram-
ers of our constitution contemplated vibrant public
speech, and a minimum of governmental interference
. . . .’’ Id., 386. In Linares, this court rejected the rigid
‘‘federal forum analysis, which affords the most rigor-
ous protection of speech only at ‘traditional’ forums
and narrowly defines ‘traditional’ to exclude modern
public gathering places often otherwise compatible
with public expression’’ in favor of a more ‘‘flexible
approach,’’ requiring a ‘‘case-by-case balancing of the
right to free speech against the competing interest of
preventing unreasonable interference with the ‘normal
activity’ of a particular place.’’ Id., 382. This court rea-
soned that ‘‘this flexible approach prohibits the govern-
ment from unilaterally and unnecessarily limiting
speech . . . .’’ Id., 386. Similarly, in the present case,
the sensitive, case-by-case balancing test set forth in
Pickering and Connick would minimize unilateral gov-
ernmental interference with employee speech that is
compatible with the legitimate interests of employers
more effectively than the rigid Garcetti rule, which cate-
gorically denies constitutional protection to any speech
by an employee in his or her official capacity, regardless
of whether the speech unduly burdens the employer.
Moreover, as the Appellate Court has observed, ‘‘Con-
necticut’s appellate courts have not been hesitant to
continue to grant its citizens the same protection as
did the ‘old’ federal decisions, when the United States
Supreme Court has retreated from a previously enunci-
ated broad protection reading of [a federal constitu-
tional provision].’’14 State v. DeFusco, 27 Conn. App.
248, 256, 606 A.2d 1 (1992), aff’d, 224 Conn. 627, 620
A.2d 746 (1993). This willingness to adhere to an old
rule that provides broader protection than the new rule
is consistent with the principle that ‘‘our state constitu-
tion is an instrument of progress, it is intended to stand
for a great length of time and should not be interpreted
too narrowly or too literally so that it fails to have
contemporary effectiveness for all of our citizens.’’
(Internal quotation marks omitted.) State v. Linares,
supra, 232 Conn. 382. When a constitutional rule has
been in place for a long period of time, a sudden contrac-
tion of the rule may well violate the entrenched constitu-
tional expectations of the state’s citizenry.15 Cf. State v.
DeFusco, supra, 256 (observing that, in State v. Marsala,
216 Conn. 150, 579 A.2d 58 [1990], this ‘‘court interpreted
our state constitution to allow the maintenance of a
constitutional status quo that had existed for our citi-
zens for at least twenty-nine years’’). We note that Pick-
ering was decided in 1968, Connick was decided in 1983
and Garcetti was decided in 2006. Thus, the citizens of
this state enjoyed the benefit of the Pickering balancing
test for thirty-eight years. Accordingly, we conclude
that the precedents of this court and the Appellate Court
support the plaintiff’s position in the present case.16
C
We next address the third Geisler factor, persuasive
federal precedent. As we have explained, the primary
federal precedents consist of the United States Supreme
Court’s decisions in Pickering, Connick and Garcetti.
For the following interrelated reasons, we find Picker-
ing and Connick to be more persuasive than Garcetti.
First, we believe that the distinction that the court
made in Garcetti between an employee’s speech on a
matter of public concern in the speaker’s role as citizen
and an employee’s speech on a matter of public concern
pursuant to official duties is somewhat artificial and
potentially difficult to apply. See Ozols v. Madison,
supra, United States District Court, Docket No.
3:11cv1324 (SRU) (concluding that Garcetti does not
apply to § 31-51q claims under state constitution
because ‘‘there is something strangely arbitrary about
a judicial inquiry into when a citizen is acting as a
citizen’’). As Justice Souter pointed out in his dissenting
opinion in Garcetti, under the rule adopted by the
majority in that case, a ‘‘schoolteacher is protected
when complaining to the principal about hiring policy,’’
because hiring is not within the duties of a teacher, but
‘‘a school personnel officer would not be [protected] if
he protested that the principal disapproved of hiring
minority job applicants.’’ Garcetti v. Ceballos, supra,547 U.S. 430; see also id., 429 (Souter, J., dissenting),
citing Madison, Joint School District No. 8 v. Wiscon-
sin Employment Relations Commission, 429 U.S. 167,
177 n.11, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976) (school-
teacher who spoke at school board meeting about pend-
ing labor negotiations between board and teachers’
union spoke ‘‘both as an employee and a citizen exercis-
ing [f]irst [a]mendment rights’’); Garcetti v. Ceballos,
supra, 427 (Stevens, J., dissenting) (‘‘[P]ublic employees
are still citizens while they are in the office. The notion
that there is a categorical difference between speaking
as a citizen and speaking in the course of one’s employ-
ment is quite wrong.’’). Justice Souter also stated in his
dissenting opinion that this distinction ‘‘seems stranger
still in light of the majority’s concession of some [f]irst
[a]mendment protection when a public employee
repeats statements made pursuant to his duties but in
a separate, public forum or in a letter to a newspaper.’’
Garcetti v. Ceballos, supra, 430 n.1. He argued that
‘‘separating the citizen’s interest from the employee’s
interest ignores the fact that the ranks of public service
include those who share the poet’s ‘object . . . to unite
[m]y avocation and my vocation’; these citizen servants
are the ones whose civic interest rises highest when
they speak pursuant to their duties, and these are
exactly the ones government employers most want to
attract.’’ (Footnote omitted.) Id., 432 (Souter, J., dis-
senting). Finally, Justice Souter observed in his dissent
that ‘‘public employees are often the members of the
community who are likely to have informed opinions as
to the operations of their public employers, operations
which are of substantial concern to the public. Were
they not able to speak on these matters, the community
would be deprived of informed opinions on important
public issues. . . . This is not a whit less true when
an employee’s job duties require him to speak about
such things: when, for example, a public auditor speaks
on his discovery of embezzlement of public funds, when
a building inspector makes an obligatory report of an
attempt to bribe him, or when a law enforcement officer
expressly balks at a superior’s order to violate constitu-
tional rights he is sworn to protect.’’ (Citation omitted;
internal quotation marks omitted.) Id., 433. We generally
find Justice Souter’s argument persuasive.
Second, and relatedly, although Garcetti sought to
justify the adoption of a categorical rule on the ground
that a more flexible test ‘‘would commit state and fed-
eral courts to a new, permanent, and intrusive role,
mandating judicial oversight of communications
between and among government employees and their
superiors in the course of official business’’; id., 423;
Garcetti has merely created new uncertainties that will
require judicial resolution. Specifically, the court in
Garcetti did not provide any clear guidance on what
speech will be found to be ‘‘pursuant to official responsi-
bilities,’’ but merely noted that ‘‘[t]he proper inquiry is
a practical one.’’ Id., 424; see also C. Rhodes, ‘‘Public
Employee Speech Rights Fall Prey to an Emerging Doc-
trinal Formalism,’’ 15 Wm. & Mary Bill Rts. J. 1173, 1193
(2007) (‘‘the [c]ourt [in Garcetti] has merely shifted the
uncertainty to the scope of the underlying categoriza-
tion’’); C. Rhodes, supra, 1194–98 (discussing conun-
drums that arise when attempting to apply ‘‘ ‘practical
inquiry’ ’’ standard under Garcetti). Not surprisingly,
courts have struggled with this issue. See Weintraub
v. Board of Education, 593 F.3d 196, 203 (2d Cir.) (con-
cluding that teacher who filed grievance to complain
about supervisor’s failure to discipline student who
repeatedly threw books at teacher was speaking pursu-
ant to official duties ‘‘even though [such speech] is not
required by, or included in, the employee’s job descrip-
tion or in response to a request by the employer’’
because speech ‘‘was part-and-parcel of his concerns
about his ability to properly execute his duties’’ [internal
quotation marks omitted]), cert. denied, 562 U.S. 995,
131 S. Ct. 444, 178 L. Ed. 2d 344 (2010); id., 205 (Cala-
bresi, J., dissenting) (arguing that Garcetti ‘‘lends itself
to multiple interpretations, and the majority’s decision
to construe it broadly . . . while a possible reading,
is not compelled by anything in the Supreme Court’s
opinion’’); Davis v. McKinney, supra, 518 F.3d 314(under Garcetti, court is required to analyze ‘‘separately
each aspect of a communication with multiple topics
and recipients’’ to determine whether each aspect of
speech was pursuant to official job duties); Davis v.
McKinney, supra, 315 (employee speech ‘‘directed
within the employee’s chain of command is not pro-
tected,’’ but speech to fellow employee outside chain
of command is protected). Accordingly, we are not per-
suaded that Garcetti’s purported bright line rule
reduces the need for judicial oversight of workplace
disputes.
Third, we are persuaded that ‘‘Garcetti’s reasoning
. . . turned the Pickering/Connick test on its head by
privileging employment status over the subject matter
of public employee speech.’’ S. Nahmod, ‘‘Public
Employee Speech, Categorical Balancing and § 1983: A
Critique of Garcetti v. Ceballos,’’ 42 U. Rich. L. Rev.
561, 573 (2008). As we have explained, in Pickering
and Connick, the court focused on the place of the
employee’s speech in the ‘‘the hierarchy of [f]irst
[a]mendment values . . . .’’ (Internal quotation marks
omitted.) Connick v. Myers, supra, 461 U.S. 145. If the
speech occupied a high rung in that hierarchy, it was
protected. In contrast, Garcetti focuses on ‘‘the employ-
ee’s [f]irst [a]mendment status. If the speech is required
by the job, the public employee loses his status as a
citizen with [f]irst [a]mendment protection against
employer discipline . . . .’’ S. Nahmod, supra, 574. This
is so even if the speech has the highest first amendment
value because it involves a matter of great public con-
cern, and even if the speech imposed little burden on
the employer’s legitimate interests. See, e.g., Davis v.
McKinney, supra, 518 F.3d 315–16 (employee’s speech
to supervisor expressing concerns about inadequate
response to employee’s investigation into fellow
employees’ use of workplace computers to access por-
nography, possibly including child pornography, not
protected from employer discipline under Garcetti);
Morales v. Jones, 494 F.3d 590, 593–94, 597 (7th Cir.
2007) (police officer’s statement to fellow police officer
that deputy police chief had harbored felon not pro-
tected because first police officer had official duty to
apprise second police officer of information pertinent
to investigation; second police officer’s statement to
district attorney about deputy chief’s harboring felon
not protected because second police officer had duty
to assist district attorney by providing details of investi-
gation), cert. denied, 522 U.S. 1099, 128 S. Ct. 905, 169
L. Ed. 2d 729 (2008); see also Morales v. Jones, supra,
598 (concluding that first police officer’s deposition
testimony regarding deputy chief was protected and
recognizing ‘‘the oddity of a constitutional ruling in
which speech said to one individual may be protected
under the [f]irst [a]mendment, while precisely the same
speech said to another individual is not protected’’);
compare Lane v. Franks, U.S. , 134 S. Ct. 2369,
2378 n.4, 2380, 189 L. Ed. 2d 312 (2014) (holding that
truthful sworn testimony in court given outside job
duties is protected, but declining to address question
whether truthful sworn testimony pursuant to employ-
ee’s ordinary job duties would be protected). We con-
clude that the flexible Pickering/Connick balancing test
is preferable to Garcetti’s categorical rule in this con-
text. See C. Rhodes, supra, 15 Wm. & Mary Bill Rts. J.
1192 (‘‘[p]ublic employee speech cases defy simple rule-
based categorization because of the almost limitless
circumstances in which they arise’’).
Fourth, because employee speech to persons outside
the workplace is potentially protected under Garcetti
even if it involves the employee’s official duties, Gar-
cetti creates a perverse incentive for public employees
to bring their work-related concerns to such persons
before trying to resolve them internally.17 See Garcetti
v. Ceballos, supra, 547 U.S. 423–24 (‘‘Employees who
make public statements outside the course of per-
forming their official duties retain some possibility of
[f]irst [a]mendment protection because that is the kind
of activity engaged in by citizens who do not work for
the government. The same goes for writing a letter to
a local newspaper . . . .’’ [Citations omitted.]); see also
Davis v. McKinney, supra, 518 F.3d 315–16 (employee’s
speech to supervisor complaining of inadequate
response to employee’s investigation revealing use of
workplace computers to view pornography not pro-
tected, while employee’s complaints to Federal Bureau
of Investigation about possible use of computers to
view child pornography were protected);18 P. Secunda,
‘‘Garcetti’s Impact on the First Amendment Speech
Rights of Federal Employees,’’ 7 First Amend. L. Rev.
117, 127 (2008–2009) (‘‘[t]he moral of the Garcetti story
appears to be to go directly to an external agency, do
not pass [g]o, and certainly do not attempt to resolve
internally’’).
Finally, although we recognize that public employers
have an important interest in ensuring that ‘‘their
employees’ official communications are accurate, dem-
onstrate sound judgment and promote the employer’s
mission’’; (internal quotation marks omitted) Garcetti
v. Ceballos, supra, 547 U.S. 434 (Souter, J., dissenting);
we are persuaded by Justice Souter’s argument that
this interest can be adequately protected by applying
a slightly modified Pickering test, under which the
employee could prevail only if ‘‘he speaks on a matter
of unusual importance and satisfies high standards of
responsibility in the way he does it.’’19 Id., 435. Specifi-
cally, Justice Souter proposed that ‘‘only comment on
official dishonesty, deliberately unconstitutional action,
other serious wrongdoing, or threats to health and
safety can weigh out in an employee’s favor’’ when an
employee is speaking pursuant to official job duties. Id.Thus, under Justice Souter’s proposed standard, speech
pursuant to an employee’s official duties regarding, for
example, a mere policy disagreement with the employer
would not be protected, even if it pertained to a matter
of public concern and had little effect on a legitimate
employer interest.20
Because we find Pickering and Connick to be more
persuasive than Garcetti, we conclude that the weight
of persuasive federal precedent favors a broader read-
ing of the free speech provisions of the state constitu-
tion than of the first amendment.
D
We next address the fourth Geisler factor, persuasive
sister state decisions. The defendants point out that the
three state courts that have considered the issue that
is before us have concluded that Garcetti applies to
claims under the respective state constitution. See Kaye
v. Board of Trustees, 179 Cal. App. 4th 48, 101 Cal. Rptr.
3d 456 (2009); Newell v. Runnels, 407 Md. 578, 967 A.2d
729 (2009); Gilbert v. Flandreau Santee Sioux Tribe,
725 N.W.2d 249 (S.D. 2006).
We do not find these cases persuasive. In Kaye v.
Board of Trustees, supra, 179 Cal. App. 4th 57–58, the
court concluded the relevant state constitutional provi-
sion21 was not broader than the first amendment in this
context because Garcetti did not narrow the scope of
protected speech in the workplace and the case was
not ‘‘illogical, unpersuasive or incompatible with its
prior precedents.’’ For the reasons set forth in part I C
of this opinion, we disagree with this conclusion. In
Newell v. Runnels, supra, 407 Md. 608, the court merely
stated conclusorily that the speech protections pro-
vided by the Maryland constitution22 are ‘‘generally
‘coextensive’ with the protections accorded by the
[f]irst [a]mendment.’’ There is no such general presump-
tion in this state. Similarly, the court in Gilbert v. Flan-
dreau Santee Sioux Tribe, supra, 725 N.W.2d 258, stated
that the majority of states with constitutional free
speech provisions like South Dakota’s23 ‘‘have interpre-
ted their state constitutional free speech provisions as
coextensive with their federal counterparts.’’ The court
did not analyze Garcetti or compare the holding and
reasoning of that case to the holdings and reasoning
of the United States Supreme Court in Pickering and
Connick. These cases, therefore, provide little, if any,
support to the defendants’ position in the present case.
E
We next consider the fifth Geisler factor, historical
insights into the intent of the constitutional framers.
This court previously has recognized that ‘‘our constitu-
tion’s speech provisions reflect a unique historical expe-
rience and a move toward enhanced civil liberties,
particularly those liberties designed to foster individual-
ity. . . . This historical background indicates that the
framers of our constitution contemplated vibrant public
speech, and a minimum of governmental interference
. . . .’’ (Citation omitted; internal quotation marks
omitted.) State v. Linares, supra, 232 Conn. 385–86.
Thus, this factor supports the conclusion that, when
employee speech will not unduly interfere with a public
employer’s interests in promoting efficient services, in
maintaining discipline, harmony, personal loyalty and
confidence in the workplace and in setting official pol-
icy within the limits of the law, the mere fact that the
employee was speaking pursuant to his or her official
duties should not subject the employee to discipline.
F
Finally, we consider the sixth Geisler factors, con-
temporary understandings of applicable economic and
sociological norms. This factor has significant overlap
with the first Geisler factor, the persuasiveness of the
United States Supreme Court’s decision in Pickering,
Connick and Garcetti. Specifically, we noted in part I
A of this opinion that, by eliminating first amendment
protection for employee speech pursuant to official job
duties, even if the speech is on a matter of public con-
cern and places little burden on the employer, Garcetti
reduced the likelihood that public employees would
speak to their employers regarding corrupt practices,
threats to the public safety or other illegal or dangerous
workplace practices. Thus, the persons who are in the
best position to know about corrupt or dangerous prac-
tices by public entities face the prospect of discipline
or discharge if they bring such practices to the attention
of their employers. Moreover, Garcetti created an
incentive for public employees to raise their concerns
outside the workplace in the first instance. Although
public employees certainly have the right to raise their
concerns externally, we can discern no public policy
that would be advanced by requiring them to do so.
Finally, the public policy expressed by § 31-51q is that
employees in this state should have the right to speak
freely on all subjects, even in the workplace, as long
as their speech does not ‘‘substantially or materially
interfere with the employee’s bona fide job performance
or the working relationship between the employee and
the employer . . . .’’ General Statutes § 31-51q. Accord-
ingly, we conclude that these public policy factors
weigh in favor of the plaintiff’s position.
The defendants contend, however, that other public
policy considerations weigh strongly in favor of
applying the Garcetti standard to claims under the state
constitution. First, they contend that public employers
have the right to control their employees’ official job
related speech so that their communications are accu-
rate and promote the employer’s mission. Under the
standard that Justice Souter articulated in his dissenting
opinion in Garcetti, however; see part I C of this opin-
ion; inaccurate employee speech or employee speech
that undermines a legitimate employer policy or mis-
sion would not be protected. Although employee speech
that undermines a corrupt or dangerous employer mis-
sion would be protected, we have concluded that this
fact weighs against adopting the Garcetti standard as
the state constitutional standard.
Second, relying on our decision in Schumann, the
defendants contend that applying Garcetti would avoid
a clash of employee and employer speech rights. See
Schumann v. Dianon Systems, Inc., supra, 304 Conn.
610 (‘‘[a]pplying Garcetti to federal constitutional
claims brought under § 31-51q keeps courts from the
constitutionally untenable task of, in essence, having
to choose sides in a work-related viewpoint dispute
between two private actors’’); see also Cotto v. United
Technologies Corp., supra, 251 Conn. 30 (Borden, J.,
concurring and dissenting) (‘‘interpreting [§ 31-51q] to
apply to private workplace conduct could . . . bring
two competing sets of expressive rights into conflict,
and therefore places the state, in the form of the courts,
on one side of that contest’’). The question that we were
addressing in Schumann, however, is whether Garcetti
limited the scope of employee speech in the private
workplace that was protected by § 31-51q or, instead,
as the plaintiff in that case claimed, § 31-51q applied to
all such speech that is protected by the first amendment
in the sense that the government cannot punish or pro-
hibit it. Schumann v. Dianon Systems, Inc., supra, 598.
The question that we are addressing here is whether
Garcetti or the Pickering/Connick test provides the
proper rule for public employees under the state consti-
tution. Nothing in Garcetti, Pickering or Connick sug-
gests that a public employer has any speech rights
beyond the right to control its official policies within
the limits of the law and to efficiently and properly carry
out its legitimate mission. Accordingly, if the Pickering/
Connick test is adequate to protect that right, the fact
that it may limit other speech of the public employer
has no bearing on our analysis. The question of whether
Garcetti is preferable to the Pickering/Connick test in
the private workplace is more properly considered in
part II of this opinion, in which we address the defen-
dants’ claim that § 31-51q protects less speech in a pri-
vate workplace than the state constitution protects in
a public workplace.
Third, the defendants contend that extending consti-
tutional protection to job related speech would trans-
form § 31-51q into ‘‘a sweeping whistleblower
protection law that will apply to all public and private
employers in any circumstance,’’ and that doing so is
more properly the function of the legislature than of
this court. Again, we disagree. If the Garcetti standard
is inconsistent with the intent of the constitutional fram-
ers to protect speech by public employees on all sub-
jects to the greatest extent possible, consistent with
the legitimate interests of public employers, we cannot
adopt that standard merely because the constitutional
speech provisions confer greater protection in certain
circumstances than that provided by statute. The legis-
lature has no power to define constitutional speech
rights. See Garcetti v. Ceballos, supra, 547 U.S. 430(Souter, J., dissenting) (‘‘[t]he applicability of a provi-
sion of the [c]onstitution has never depended on the
vagaries of state or federal law’’ [internal quotation
marks omitted]); id., 440 (‘‘the combined variants of
statutory whistle-blower definitions and protections
add up to a patchwork, not a showing that [constitu-
tional] worries may be remitted to legislatures for
relief’’). Accordingly, the question of whether § 31-51q
protects less speech in the private workplace than is
constitutionally protected in the public workplace is
also more properly considered in part II of this opinion.
Finally, the defendants contend that the bright line
rule of Garcetti provides clearer guidance to employers
than the flexible Pickering/Connick test. As we
explained in part I C of this opinion, however, Garcetti
merely substituted one difficult question—whether a
public employee is speaking pursuant to his official job
duties or as a citizen—for another difficult question—
whether the employee’s speech is on a matter of public
concern and outweighs the employer’s legitimate inter-
ests in workplace discipline, order and efficiency. But
even if it is true that the rule in Garcetti is marginally
easier to apply than the Pickering/Connick test, that
fact would hardly outweigh the obvious benefits associ-
ated with the significantly greater free speech rights
afforded under the latter standard.
G
In summary, the Geisler factors as a whole provide
considerable support for the plaintiff’s claim that the
Garcetti standard does not comport with the free
speech provisions of the state constitution, and no such
factor provides any meaningful support for a contrary
determination. We conclude, therefore, that Justice
Souter’s modified Pickering/Connick balancing test,
which recognizes both the state constitutional principle
that speech on all subjects should be protected to the
maximum extent possible and the important interests
of an employer in controlling its own message and pre-
serving workplace discipline, harmony and efficiency,
provides the proper test for determining the scope of
a public employee’s rights under the free speech provi-
sions of the state constitution when the employee is
speaking pursuant to his or her official duties. Id., 435
(Souter, J., dissenting) (‘‘only comment on official dis-
honesty, deliberately unconstitutional action, other
serious wrongdoing, or threats to health and safety can
weigh out in an employee’s favor’’ when employee is
speaking pursuant to official duties); see also part I C of
this opinion. In our view, Justice Souter’s test properly
balances the employer’s heightened interest in control-
ling employee speech pursuant to official job duties—
an interest that Pickering did not specifically address—
and the important interests of the employee and of the
public in allowing employees to speak without fear of
retaliation about matters of particularly acute public
concern—interests that the Garcetti standard fails to
protect. As Justice Stevens aptly stated in his dissenting
opinion in Garcetti, ‘‘[t]he proper answer to the ques-
tion ‘whether the [constitution] protects a government
employee from discipline based on speech made pursu-
ant to the employee’s official duties’ . . . is ‘[s]ome-
times,’ not ‘[n]ever.’ ’’ Garcetti v. Ceballos, supra, 547
U.S. 426 (Stevens, J., dissenting).
II
We next consider the defendants’ claim that the scope
of speech that is protected by § 31-51q is narrower than
the scope of speech by public employees that is pro-
tected by the free speech provisions of the state consti-
tution. Specifically, the defendants contend that: (1)
private employers have the right to control their
employees’ job related speech; (2) applying the Garcetti
standard under § 31-51q avoids a clash of employee and
employer speech rights; (3) broadening the scope of
whistleblower speech that is protected by § 31-51q is a
matter for the legislature, not this court; (4) applying
the Pickering/Connick test under § 31-51q undermines
the ability of private employers to make timely and
certain decisions; and (5) the public policy in favor of
bringing corrupt and dangerous employer practices to
light carries less weight when the employer is private.
We address, and reject, each of these claims in turn.
With respect to the defendants’ first claim, that pri-
vate employers have the right to control their employ-
ees’ job related speech, we are satisfied that the
modified Pickering/Connick standard adequately pro-
tects this right. Under this standard, if an employee’s
job related speech reflects a mere policy difference
with the employer, it is not protected. It is only when
the employee’s speech is on a matter of public concern
and implicates an employer’s ‘‘official dishonesty . . .
other serious wrongdoing, or threats to health and
safety’’; id., 435 (Souter, J., dissenting); that the speech
trumps the employer’s right to control its own employ-
ees and policies.24 With respect to the defendants’ argu-
ment that ‘‘[t]he general public does not have the same
interest in, or entitlement to, information about the
operations of private businesses’’ as it has in public
entities, the defendants fail to recognize that, even
under Garcetti, an employee’s speech outside the work-
place about the employee’s job related duties—for
example, a letter to the editor—is protected, as long
as the speech involves a matter of public concern. See
Garcetti v. Ceballos, supra, 547 U.S. 423. Accordingly,
we fail to see how protecting such speech within the
workplace would threaten a private employer’s privacy
interests. To the contrary, protecting such speech will
remove the incentive for an employee to raise concerns
publicly without first raising them internally. Finally,
we are mindful that ‘‘[a]s a remedial statute, § 31-51q
deserves a generous construction . . . .’’ Cotto v.
United Technologies Corp., supra, 251 Conn. 8–9.
The defendants also claim that the Garcetti standard
avoids a clash of employee and employer speech rights.
We are persuaded that the modified Pickering/Connick
standard is sufficient to avoid such a clash. We first
note that when Justice Borden, in his concurring and
dissenting opinion in Cotto; see id., 30; and Justice Zare-
lla, in his concurring opinion in Schumann; see Schu-
mann v. Dianon Systems, Inc., supra, 304 Conn. 636;
expressed concerns about a clash of employee and
employer speech rights, they were objecting to the hold-
ing of the court in Cotto that § 31-51q applies to
employee speech in the private workplace. The correct-
ness of that holding is not before us in this appeal.
Rather, the issue that we are deciding is whether Gar-
cetti or the Pickering/Connick balancing test, or some
other standard, determines the scope of the protection
afforded by § 31-51q to employee speech in the private
workplace. For all of the reasons that we have pre-
viously discussed in this opinion, we conclude that the
modified Pickering/Connick test does not place a signif-
icantly greater burden on the speech rights of private
employers than does the Garcetti test.25 The only
employee speech that is protected by the modified Pick-
ering/Connick test and that is not protected by Garcetti
is speech pursuant to an employee’s official job duties
that is on a matter of public concern and involves the
employer’s ‘‘official dishonesty . . . other serious
wrongdoing, or threats to health and safety . . . .’’ Gar-
cetti v. Ceballos, supra, 547 U.S. 435 (Souter, J., dis-
senting). Moreover, the defendants in the present case
have made no claim that their own first amendment
rights would be violated if § 31-51q protected the plain-
tiff’s speech.26 Accordingly, we reject this claim.
The defendants next argue that the decision to extend
whistleblower protection to employee speech pursuant
to official job duties in a private workplace should be
left to the legislature. The legislature, however, has
expressed its intent in § 31-51q that constitutionally pro-
tected speech in the private workplace should be pro-
tected from employer discipline. See Cotto v. United
Technologies Corp., supra, 251 Conn. 16 (‘‘[W]e are per-
suaded that the legislature meant what it said. Section
31-51q extends protection of rights of free speech under
the federal and the state constitutions to employees in
the private workplace.’’). We have concluded in the
present case that, under the free speech provisions of
the state constitution, speech by a public employee on
all subjects, including internal whistleblowing speech,
should be protected from employer discipline to the
greatest extent possible, consistent with the legitimate
interests of the employer. We see no evidence that the
legislature intended to carve out an exception for inter-
nal whistleblowing speech under § 31-51q merely
because such speech is not protected under other statu-
tory provisions.27 To the contrary, as we observed in
Cotto, the legislative history of § 31-51q supports the
conclusion that one purpose of the statute was to pro-
tect employees from retribution for speaking about dan-
gerous or illegal workplace conditions. See id., 9–10
(underscoring remarks of Senator Howard T. Owens
during Senate debate on proposed legislation that pur-
pose of legislation was to prevent retribution against
employees who complain about violations of federal
occupational safety laws and labor laws). We therefore
reject this claim as well.
The defendants further contend that § 31-51q should
not protect employee speech pursuant to official job
duties because employers need to be able to make
timely decisions with certainty. They argue that the
bright line rule of Garcetti provides clearer guidance
than the flexible Pickering/Connick test as to when
employee speech is protected from discipline. We note,
however, that, although there is no presumption that
the official job duties of a private employee, unlike
those of a public employee, implicate the public inter-
est, under the state constitutional standard that we have
adopted in the present case employee speech pursuant
to official job duties would be protected by § 31-51q only
to the extent that it involves dishonest or dangerous
practices by the employer that would be a matter of
public concern. When speaking on such matters, a pri-
vate employee is speaking both as an employee and as
a citizen, just as a public employee would be. Accord-
ingly, for the same reason that we rejected this claim
in part I B of this opinion, namely, that the question of
whether an employee is speaking as a citizen or as an
employee is often no less difficult than the questions
presented by the Pickering/Connick test, we also reject
it here.
Similarly, with respect to the defendants’ claim that
greater efficiency and proper performance by a private
employer are not matters of public concern, although
we would agree that that is true as a general rule, it is
clear that that is not always the case. Under the standard
that we have adopted, only employee speech that
involves employer policies and practices that are mat-
ters of significant public concern is protected. For that
reason, this claim also fails.
III
For all of the foregoing reasons, we conclude that
the answer to the certified question is ‘‘no.’’ We further
conclude that the Pickering/Connick balancing test, as
modified by Justice Souter in his dissenting opinion in
Garcetti; see Garcetti v. Ceballos, supra, 547 U.S. 435(Souter, J., dissenting) (‘‘only comment on official dis-
honesty, deliberately unconstitutional action, other
serious wrongdoing, or threats to health and safety can
weigh out in an employee’s favor’’ when employee is
speaking pursuant to official duties); applies to speech
in a public workplace under the state constitution and
that § 31-51q extends the same protection to employee
speech in a private workplace for claims involving the
state constitution.
No costs will be taxed in this court to the plaintiff
or the defendants.
In this opinion EVELEIGH, McDONALD, ESPINOSA,
ROBINSON and VERTEFEUILLE, Js., concurred.
1
General Statutes § 31-51q provides: ‘‘Any employer, including the state
and any instrumentality or political subdivision thereof, who subjects any
employee to discipline or discharge on account of the exercise by such
employee of rights guaranteed by the first amendment to the United States
Constitution or section 3, 4 or 14 of article first of the Constitution of the
state, provided such activity does not substantially or materially interfere
with the employee’s bona fide job performance or the working relationship
between the employee and the employer, shall be liable to such employee
for damages caused by such discipline or discharge, including punitive
damages, and for reasonable attorney’s fees as part of the costs of any such
action for damages. If the court determines that such action for damages
was brought without substantial justification, the court may award costs
and reasonable attorney’s fees to the employer.’’
2
Hereinafter, joint references to UBS Realty and UBS AG are to the
defendants, and references to the defendants individually are by name.
3
Because the record before us does not contain the defendants’ motion
for summary judgment, the basis of the defendants’ claim is unclear.
4
Hereinafter, all references to the District Court are to Judge Squatrito
unless otherwise indicated.
5
Before filing their motion for summary judgment, the defendants had
filed a motion to dismiss the plaintiff’s claims. In her ruling on the motion
to dismiss the claim pursuant to § 31-51q, the District Court judge to whom
the matter was then assigned, Arterton, J., concluded that Garcetti did not
apply to the claim because Garcetti did not apply to claims arising in a
private workplace. See Trusz v. UBS Realty Investors, LLC, United States
District Court, Docket No. 3:09cv268 (JBA) (D. Conn. March 30, 2010). This
court’s decision in Schumann abrogated Judge Arterton’s ruling.
6
See Garcetti v. Ceballos, supra, 547 U.S. 419 (‘‘[s]o long as employees
are speaking as citizens about matters of public concern, they must face
only those speech restrictions that are necessary for their employers to
operate efficiently and effectively’’); Connick v. Myers, supra, 461 U.S. 146(‘‘[w]hen employee expression cannot be fairly considered as relating to any
matter of political, social, or other concern to the community, government
officials should enjoy wide latitude in managing their offices, without intru-
sive oversight by the judiciary in the name of the [f]irst [a]mendment’’).
7
After we accepted the certified question from the District Court, we
granted permission to the American Civil Liberties Union of Connecticut
and the Commission on Human Rights and Opportunities to file briefs as
amici curiae in support of the plaintiff’s position, and to the Connecticut
Business and Industry Association, Inc., to file an amicus curiae brief in
support of the defendants’ position.
8
In Garcetti, Justice Stevens authored a dissenting opinion; see Garcetti
v. Ceballos, supra, 547 U.S. 426; Justice Souter authored a dissenting opinion,
in which Justice Stevens and Justice Ginsburg joined; id., 427; and Justice
Breyer authored a dissenting opinion. Id., 444. We discuss the substance of
these dissenting opinions later in this opinion.
9
Justice Borden authored a concurring and dissenting opinion in Cotto,
in which he argued that, although § 31-51q applied to private employers, it
did not provide protection against infringement of speech rights in a private
workplace, because interference with speech rights by a private employer
does not violate the constitution. Cotto v. United Technologies Corp., supra,
251 Conn. 32–33. Justice Katz authored a concurring and dissenting opinion
in which she agreed with the majority’s interpretation of § 31-51q, but dis-
agreed with the majority’s conclusion that the defendant had not violated
the statute. Id., 41. Justice Francis McDonald issued a concurring opinion
in which he maintained that § 31-51q did not apply to employee speech in
the workplace because private employers have a constitutional right to
express their own views on their property, free from government interfer-
ence. Id., 53–54.
10
We note that Justice Zarella authored a concurring opinion in which he
argued that § 31-51q was inapplicable to any speech made by an employee
in a private workplace and that Cotto should be overruled. Schumann v.
Dianon Systems, Inc., supra, 304 Conn. 628–29.
11
To be sure, some language in Schumann may be read as suggesting
that private employee speech pursuant to official job duties is not protected
under the first amendment. See Schumann v. Dianon Systems, Inc., supra,304 Conn. 610 n.21 (rejecting plaintiff’s claim that § 31-51q applies to
employee speech pursuant to official duties because ‘‘§ 31-51q, by its plain
language, applies only ‘to constitutionally protected speech,’ ’’ which, under
Garcetti, does not include speech pursuant to official job duties). To the
extent that this language possibly could be interpreted to suggest that the
government may freely punish or prohibit such speech, we now disavow
any such suggestion. Rather, as we have explained, speech by a public
employee pursuant to official job duties is not constitutionally protected
under the federal constitution only in the special sense that the constitution
does not insulate such speech from employer discipline.
12
We recognize that § 31-51q confers only statutory protection against a
private employer’s interference with constitutionally protected employee
speech, whereas an employer’s right to address employees as it sees fit
is, at least to some degree, constitutionally protected from government
interference. To the extent that the defendants intended to claim that § 31-
51q is facially unconstitutional because it confers a statutory speech right
on employees that constrains the employer’s constitutional speech rights,
we conclude that any such claim is unreviewable because it was inade-
quately briefed.
13
The District Court has asked us only to articulate the proper legal
standard under the state constitution; it has not asked us to apply that
standard to the facts of this case.
14
‘‘See, e.g., State v. Marsala, [216 Conn. 150, 579 A.2d 58 (1990)]; State
v. Geisler, supra, [222 Conn. 672]. Thus, in [Marsala], our Supreme Court
refused to follow United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L.
Ed. 2d 677 (1984), and gave our citizens the protection of the exclusionary
rule, under our constitution, undiluted by a good faith exception, as allowed
in Leon. Until Leon, a broad exclusionary rule under the federal constitution
had been a constant in fourth amendment analysis, having been first
announced in Weeks v. United States, 232 U.S. 383, [398] 34 S. Ct. 341, 58
L. Ed. 652 (1914), and made applicable to the states through the fourteenth
amendment to the United States constitution in Mapp v. Ohio, 367 U.S. 643,
[655] 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The Marsala court interpreted
our state constitution to allow the maintenance of a constitutional status
quo that had existed for our citizens for at least twenty-nine years.
‘‘In [Geisler], this court refused to follow New York v. Harris, 495 U.S.
14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). The Harris court also created
an exception to the exclusionary rule under the federal constitution, and
held that evidence obtained outside a residence, immediately following an
illegal warrantless arrest made in the residence, was admissible at trial. [Id.,
21.] Such evidence had been previously banned as violative of the fourth
amendment. See Payton v. New York, 445 U.S. 573, [590] 100 S. Ct. 1371,
63 L. Ed. 2d 639 (1980). Our conclusion in Geisler aligned our state constitu-
tional protections with those protections long afforded by the federal consti-
tution prior to Harris and followed by the courts of this state.’’ State v.
DeFusco, 27 Conn. App. 248, 256–57, 606 A.2d 1 (1992), aff’d, 224 Conn. 627,
620 A.2d 746 (1993).
15
Authorities have disagreed as to whether Garcetti narrowed the Picker-
ing/Connick test or, instead, merely addressed an issue that it had not
previously had the opportunity to address. Compare Kaye v. Board of Trust-
ees, 179 Cal. App. 4th 48, 58, 101 Cal. Rptr. 3d 456 (2009) (‘‘Garcetti does
not . . . limit rights established by earlier precedents in a manner inconsis-
tent with those precedents. Rather, Garcetti relied upon and applied earlier
precedents to address an issue that had never been directly addressed by
them . . . .’’), with R. Garcia, ‘‘Against Legislation: Garcetti v. Ceballos, and
the Paradox of Statutory Protection for Public Employees,’’ 7 First Amend.
L. Rev. 22, 24 (2008–2009) (Garcetti ‘‘narrowed the scope of the [f]irst
[a]mendment protections that public employees had enjoyed for decades’’).
In our view, Garcetti narrowed the scope of protected speech. Before Gar-
cetti was decided, public employees reasonably could have expected that
speech pursuant to their official duties would be protected from employer
discipline if it related to a matter of public concern and if it satisfied the
Pickering balancing test. After Garcetti, the ‘‘answer to the question whether
the [f]irst [a]mendment protects a government employee from discipline
based on speech made pursuant to the employee’s official duties’ . . . is
. . . ‘[n]ever.’ ’’ Garcetti v. Ceballos, supra, 547 U.S. 426 (Stevens, J., dis-
senting).
16
Although the second prong of Geisler focuses on the decisions of this
court and the Appellate Court, it bears noting that, on at least five occasions,
our trial courts have either declined to apply Garcetti to § 31-51q claims
involving the state constitution or held that it is an open question whether
Garcetti applies to such claims. See Sanchez v. High Watch Recovery Center,
Inc., Superior Court, judicial district of Hartford, Docket No. HHD-CV-12-
6032834-S (January 14, 2013) (denying motion to strike claim pursuant to
§ 31-51q pursuant to Garcetti because ‘‘the Connecticut constitution is more
liberal than the federal constitution on freedom of speech’’); Maysonet v.
Primecare, Inc., Superior Court, judicial district of Waterbury, Docket No.
CV-10-5016091-S (February 1, 2013) (denying defendant’s motion for sum-
mary judgment ‘‘because Connecticut may afford individuals greater protec-
tion under its own constitution’’ than is afforded by Garcetti); Matthews v.
Dept. of Public Safety, Superior Court, judicial district of Hartford, Docket
No. HHD-CV-11-6019959-S (May 31, 2013) (56 Conn. L. Rptr. 262, 270–82)
(conducting Geisler analysis and concluding that Pickering/Connick balanc-
ing test applies to employee speech under Connecticut constitution); Cubilla
v. Montville, Superior Court, judicial district of New London, Docket No.
KNL-CV-11-6010874-S (March 18, 2014) (57 Conn. L. Rptr. 860, 864 n.65)
(adopting analysis of court in Matthews); Carson v. Dept. of Children &
Families, Superior Court, judicial district of Hartford, Docket No. HHD-CV-
07-5036578-S (March 27, 2014) (denying motion to strike claim pursuant to
§ 31-51q pursuant to Garcetti because free speech rights may be broader
under state constitution); see also Ozols v. Madison, supra, United States
District Court, Docket No. 3:11cv1324 (SRU) (concluding that Garcetti does
not apply ‘‘to those portions of [§] 31-51q that relate to rights protected by
the Connecticut [c]onstitution’’); but see Cabrera v. American School for
the Deaf, Superior Court, judicial district of Hartford, Docket No. HHD-CV-
12-6035273-S (February 26, 2013) (55 Conn. L. Rptr. 637, 639–41) (performing
Geisler analysis and concluding that Garcetti applies to claims under
state constitution).
17
The court in Garcetti stated that ‘‘[i]f . . . a government employer is
troubled by the perceived anomaly, it has the means at hand to avoid it. A
public employer that wishes to encourage its employees to voice concerns
privately retains the option of instituting internal policies and procedures
that are receptive to employee criticism. Giving employees an internal forum
for their speech will discourage them from concluding that the safest avenue
of expression is to state their views in public.’’ Garcetti v. Ceballos, supra,547 U.S. 424. The court failed to recognize, however, that a public employee
who speaks pursuant to such internal policies and procedures still might
face the prospect of employer discipline for the speech, unless the policies
and procedures rose to the level of a contractual guarantee that there would
be no retaliation for critical speech. Moreover, we do not see why this
important issue of public policy should be subject to a public employer’s
unilateral choice.
18
Compare Matthews v. Lynch, United States District Court, Docket No.
3:07cv739 (WWE) (D. Conn. April 11, 2011) (speech of state police officer
relating to alleged corruption within Connecticut State Police and directed
at office of Connecticut attorney general and New York State Police not
protected because speaker was ‘‘charged with reporting crime and . . . he
did in fact report misconduct to the agencies to which he was supposed to
report such misconduct’’).
19
Indeed, it is arguable that what Justice Souter characterized as an
‘‘adjustment’’ of the Pickering test; Garcetti v. Ceballos, supra, 547 U.S. 434;
is not an adjustment at all, but is a straightforward application of Pickering
to a specific type of speech, that is, speech pursuant to an employee’s official
duties, that the employer has a particularly important interest in controlling.
Justice Breyer argued in his dissenting opinion in Garcetti that the stan-
dard adopted by the majority was too narrow, but that Justice Souter’s
proposed standard was too broad. Id., 446–48. In his view the Pickering
balancing test should apply to employee speech pursuant to official duties
‘‘only in the presence of augmented need for constitutional protection and
diminished risk of undue judicial interference with governmental manage-
ment of the public’s affairs.’’ Id., 450. He concluded that that test was met
in Garcetti because the case involved the speech of an attorney, which is
subject to regulation by canons of professional ethics, and because it
involved the speech of a prosecutor, which is subject to the constitutional
mandate to communicate with the defense about exculpatory and impeach-
ment evidence in the government’s possession. Id., 446–47. We believe that
Justice Souter’s proposed standard provides adequate protection of the
interests of public employers.
20
For example, if a public employee responsible for establishing state
traffic rules and policies insisted that, contrary to the state’s established
policy, the speed limit on interstate highways should be eighty miles per
hour, that speech would not be protected under Justice Souter’s approach,
even though it was on a matter of public concern and placed little burden
on the employer.
21
The California constitution provides in relevant part: ‘‘Every person may
freely speak, write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not restrain or abridge
liberty of speech or press.’’ Cal. Const., art. I, § 2 (a).
22
The Maryland constitution provides in relevant part: ‘‘That the liberty
of the press ought to be inviolably preserved; that every citizen of the [s]tate
ought to be allowed to speak, write and publish his sentiments on all subjects,
being responsible for the abuse of that privilege.’’ Md. Const., art. 40.
23
The South Dakota constitution provides in relevant part: ‘‘Every person
may freely speak, write and publish on all subjects, being responsible for
the abuse of that right. . . .’’ S.D. Const., art. VI, § 5.
24
In the public workplace, the modified Pickering/Connick test also would
protect speech regarding deliberately unconstitutional action by the
employer because that conduct would satisfy the state action requirement.
Garcetti v. Ceballos, supra, 547 U.S. 435 (Souter, J., dissenting).
25
The defendants raise the hypothetical examples of an employee who
‘‘has a racist bumper sticker on a car that he or she uses when visiting
customers,’’ an employee who ‘‘hands out political leaflets to customers or
solicits donations to social causes,’’ an employee who ‘‘hands out religious
materials when meeting customers,’’ and an employee who ‘‘uses racist
or sexist slurs when conducting business or communicating with other
employees.’’ Presumably, however, none of these examples involves speech
pursuant to official job duties. Thus, if they would be protected under the
Pickering/Connick balancing test, they would be protected under Garcetti,
which is the standard that the defendants would have us adopt under the
state constitution. Moreover, although there is no need in the present case
to consider whether such speech would be protected under the Pickering/
Connick test, we doubt that the employee’s interest in engaging in such
speech would outweigh the employer’s legitimate interest in maintaining
discipline, harmony and efficiency in the workplace or that the speech
would satisfy the statutory requirement that the employee’s activity ‘‘not
substantially or materially interfere with the employee’s bona fide job perfor-
mance or the working relationship between the employee and the employer
. . . .’’ General Statutes § 31-51q. Indeed, a number of these activities would
subject the employer to legal action, which would hardly promote a harmoni-
ous working relationship between the employee and the employer.
The amicus Connecticut Business and Industry Association, Inc., contends
that, in the present case, ‘‘not only was [the plaintiff’s] speech part of his
professional duties, but his speech occurred even after his employer fully
considered his concerns, and, after two separate investigations, disagreed
with [the plaintiff] that additional disclosures were necessary.’’ (Emphasis
in original.) As we have indicated, however, we have not been asked to
apply the standard that we have adopted to the facts of the present case.
Accordingly, we express no opinion as to whether the plaintiff’s speech was
protected under § 31-51q.
26
As the majority in Cotto stated, ‘‘[w]e do not dispute the possibility that
circumstances may arise when the rights of an employee under § 31-51q
may conflict with the employer’s own free expression rights. If and when
that case does arise, we will be required to resolve any such conflict in light
of the particular facts and circumstances then presented.’’ Cotto v. United
Technologies Corp., supra, 251 Conn. 8 n.5.
27
The defendants’ reliance on Schumann in support of their claim to the
contrary is misplaced. In Schumann, we rejected the plaintiff’s claim that
applying Garcetti to the speech of internal whistleblowers in the private
workplace pursuant to § 31-51q would chill such speech, stating that ‘‘by
its plain language, [§ 31-51q] applies only to constitutionally protected
speech . . . .’’ (Internal quotation marks omitted.) Schumann v. Dianon
Systems, Inc., supra, 304 Conn. 610 n.21. Thus, we held only that, if the
first amendment did not protect internal whistleblower speech in a public
workplace from employer discipline under Garcetti, § 31-51q did not protect
such speech from discipline by a private employer in claims involving the
first amendment. We did not suggest that, if the speech provisions of the state
constitution do protect internal whistleblower speech in a public workplace,
§ 31-51q could not be construed to provide protection to such speech in the
private workplace if the protection went beyond that provided by other
statutes.