09-4040 Wackett v. City of Beaver Dam

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United States Court of Appeals

CIVIL OPINIONS

Employment

Public employment; First Amendment

Where a public employee’s criticisms of city policy were made at a public meeting in the course of his employment, he cannot prove retaliation based on the exercise of his First Amendment rights.

“Wackett attempts to avoid the import of Garcetti by claiming that in addition to speaking out against the Caterpillar purchase and the unethical free trip in his role as a Public Works employee, he also spoke out on his personal time as a private citizen and taxpayer. Even if repeating statements made earlier as part of an employee’s official duties were enough to trigger First Amendment protection, Wackett’s theory cannot stand because there is no evidence that the defendants knew of Wackett’s additional ‘unofficial’ speech. While the defendants (or most of them) were aware of the Schmidt letter, all of the defendants filed declarations stating that they did not know that Wackett had spoken with Schmidt or any other members of the public concerning the front-end loader issue. There is also nothing in Schmidt’s letter to indicate that Wackett had spoken to him about the tractor purchase; rather, Schmidt’s letter incorporates information made available at the public Board hearings. Moreover, while the letter references Wackett, it also references Wackett’s boss, Gall, and refers to their initial recommendation to purchase the John Deere tractor. That initial recommendation was made at the public hearing. Thus, if anything, the content of the letter indicates that Schmidt was relying on Wackett’s recommendations made during the public hearings—when he was acting in his official capacity. There is also no evidence that the defendants knew Wackett had publicly spoken out against the offer of the Caterpillar trip.”

Affirmed.

09-4040 Wackett v. City of Beaver Dam

Appeal from the United States District Court for the Eastern District of Wisconsin, Griesbach, J., Manion, J.