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HomeMy WebLinkAbout4 Pre Disciplinary Skelly Hearing Agenda Item # 4 Public Utility District re-Discip linary (Skelly) Hearing To: Directors Sutton, Thomason, and Aguera From G. Richard Brown, Special Counsel Date: January 30, 2007 Subject: Scott Terrell— Pre-Disciplinary (Skelly) Hearing Why is this item before three Board members? Under Chapter 4.16 of the Truckee Donner PUD District code, an employee who has received a notice of proposed discipline may elect to have a pre-disciplinary hearing (often referred to as a Skelly hearing) with either the General Manager or before three Board members selected by the employee. Mr. Terrell elected to proceed before three members of the Board. Background On January 5, 2007, Scott Terrell was given a Notice of Proposed Suspension by General Manager Peter Holzmeister. In an undated letter to Mr. Holzmeister, Mr. Terrell stated that he wished to proceed before three Board members. He selected members Sutton, Thomason, and Aguera. Brown Act Because three Board members will be sitting to hear the matter, the Brown Act applies. Mr. Terrell was given an option under Government Code § 54957 to have the matter heard in closed or open session. He opted to have it heard in open session. Terrell 9 Page 1 Procedure The hearing is informal. The technical rules of evidence do not apply. Both Mr. Terrell and the District may present written evidence or testimony through witnesses. After the parties have presented their cases, the Board will adjourn to a closed session to deliberate and reach a decision. The decision of the three members must be given to Mr. Terrell within one day after the conclusion of the hearing. Terrell • Page 2 G. Richard Brown, Shareholder, McDonough Holland& Allen Page 1 of 2 6 F M*k g & �r io stC �1� 3s 3¢F o-'*rme rd�sz: R , gSp�9E 3 P �yd _ �y� f F " Wo «` Attorneys at Low isE si l w.t;n.�.,it t"'.'�`�-.t ILZ��& :•,��1 h'P; _a. tiler MHALaw Search Go Admitted to Practice G. Richard Brown I Shareholder State Bar of California,1972 Professional Experience All California State Courts �i Rich practices all aspects of public law,with the majority of his practice in the areas United States District Court,Easter of empjoyrr�ent(primarily for public agencies,but also for private employers)and District of California eminent domain.He represents both public agencies and landowners.He also has represented cities,counties and special districts throughout northern California,as Education well as private clients who deal with public agencies.Rich has acted as an University of California,Davis,Sch arbitrator,mediator,hearing officer and judge pro tempore.He has lectured Law extensively on various aspects of employment and eminent domain law. J.D,1971 Order of the Coif Rich has served as City Attorney for Roseville,Rocklin,and Marysville.He began Or Davis Law Review his career as a Deputy City Attorney for Sacramento. UC Contact Information Brigham Young University 555 Capitol Mall 9th Floor Representative Matters B.A.,1968 Sacramento CA 95814 Employment 916.444.3900 mhalaw.com Counsel clients on day-to-day employment matters,including dealing with problem rb_rown — employees,responding to grievances,drafting employment/separation agreements EM VCaTd and other employment policies Practice Focus Investigate employment complaints,particularly in areas involving harassment and Eminent Domain discrimination Employment Law Provide interactive training in areas such as harassmentidiscrimination prevention, Public Law leave laws,wage&hour compliance Print Sio Represent employers in mediations,arbitrations,administrative hearings,and court proceedings arising out of employment matters Counsel personnel boards and civil service commissions hearing employment disciplinary appeals Litigation/Eminent Domain Counsel clients regarding claims received prior to litigation being filed Provide guidance and advocacy in adversarial property acquisitions,from pre- condemnation procedures through trial Routinely litigate various public agency issues(such as inverse condemnation and public meetings/records claims,as well as more general litigation matters) Presentations/Publications Presenter,"Workplace Violence,"Council on Education&Management, Sacramento(2005) Presenter,"Case Law Relating to Public Use Doctrine,"Lorman,Sacramento and Oakland(2005) Presenter,"Beyond Kelo,"California County Counsels Association—Public Works Section,South Lake Tahoe(2005) Leadership Position slAffiliations Member,State Bar of California Member,Sacramento County Bar Association—Labor&Employment Section htt-o://www.mhalaw.com/mha/attorneys/brownR.htm 1/22/2007 Truckee Donner Public Utility District January 5, 2007 Scott Terrell P.O. Box 577 Truckee, California 96160 Dear Scoff; This letter informs you that disciplinary action is being proposed against you, the reasons for the disciplinary action, a description of the disciplinary action, and your right to have a pre- disciplinary review of this proposed action. NOTICE OF PROPOSED SUSPENSION You are being given this Notice of Proposed Suspension to inform you that the District proposes to suspend you without pay for a period of two weeks, and this suspension would become effective on January 15 and extend through January 26, 2007. A copy of this Notice of Proposed Suspension is being placed in your personnel file. Discussion of the issues involved in the proposed disciplinary action: The District has been struggling for the past few years with the need to secure a power supply contract to meet the needs of our customers. Steve Hollabaugh, the District's Power Supply Engineer, has been working with the Board of Directors to secure a power supply contract to meet a portion of our needs, known as our base load power, from the IPP-3 plant in Utah. This proposal became highly controversial in the community because of the length of the contract, the fact that the plant will burn coal, and the lack of discussion of renewable power and conservation. As a result of the public input Steve altered his recommendation to reduce the amount of power to be purchased from IPP-3, and to incorporate renewables and conservation into a proposed broad power supply portfolio. During a series of public sessions conducted by the Board of Directors, the Board and Steve dealt with this difficult issue. While acting in the capacity of your employment duties, you expressed the views that the proposal offered by Steve was ill advised. As we discussed in two private meetings during this entire process, you generally have the right to express your opinion on matters of great public interest such as this proposed power supply contract. The fact that you are an employee of the District and that your opinion is contrary to the proposal of the District management does not prohibit you from expressing it, nor does it prohibit you from participating in meetings with other people who also believe that the proposal is ill advised. Receiving various opinions, no matter how uncomfortable those opinions may be, is important to the process of evaluating public policy. An important part of your traditional job duties at the District includes promoting energy conservation and promoting the development of renewable power sources, such as the biomass plant at Regional Park. Since these utility issues are important to the District we expect you to P O. Box 309—Truckee,CA 96160—Phone 530-587-3896—www.tdpud.org speak out and express your opinions on them. However, there is a line that you are not to cross. As an employee of the District, acting within the capacity of your job duties, there are limits that you are supposed to adhere to. Your role at the District is not to set policy regarding conservation and renewable power sources. You certainly should comment on these issues but not attempt to thwart the Board's legitimate role in setting policy regarding power supply. When your comments distract co-workers from the issue at hand or thwart the implementation of legitimate policy your comments can be limited. Because of your position at the District you have the ability to create severe office uproar and fracture the District's need to have a coherent policy throughout the District's ranks. This situation justifies limits on your ability to comment. The limits that 1 am referring to are not to silence you, but to require that you satisfy a high standard of responsibility in the way to comment. Causes of Disciplinary action: 1. While acting in the capacity of your employment duties you participated in an effort to bring legal action against the District's Board of Directors with the goal of negating a decision that they might make that was contrary to your preferred decision. Attached is a copy of an e-mail you sent using the District computer during work hours to Tim Wagner on November 22, 2006 asking for his assistance is taking legal action against the District. This action was irresponsible and is grossly insubordinate. As stated above, your role at the District is not to set policy regarding conservation and renewable power sources. You certainly should comment on these issues but not attempt to thwart the Board's legitimate role in setting policy regarding power supply. 2. While acting in the capacity of your employment duties you commented in a manner that served to undermine the effectiveness and efficiency of the District's Power Supply Engineer. Your comments impeded the Power Supply Engineer's efforts to present and reach an efficient compromise over power supply contracts. The Power Supply Engineer and you are members of the District's professional staff and as such you should have been more open and extended more courtesy to a fellow professional colleague. Your comments distracted co-workers from the issue at hand and created severe office uproar. This behavior was irresponsible and reflects inappropriate treatment of the District's Power Supply Engineer 3. When I met with you and discussed my concerns with you over these matters you said to me, and I quote "I know how to get my way". This statement violates the fundamental employment arrangement that you have with the District that requires you to carry out the policies and decisions of the Board of Directors under the supervision of the General Manager. Your statement that you know how to get your way is grossly insubordinate. For these reasons I am proposing that you be suspended for two weeks without pay, the suspension to begin on January 15 and extend through January 26, 2007 You have the right to a pre-disciplinary review with me to meet to discuss your proposed suspension. If you object in writing to a pre-disciplinary review with me, then you may have your pre-disciplinary review with three (3) members of the District's Board of Directors selected by you. 2 P O. Box 309—Truckee, CA 96160—Phone 530-587-3896—www.tdpud.org If you decide you would like to have a pre-disciplinary review with me, it will take place on January 11, 2007 at 1:00 p.m. at the District offices. If this time is not agreeable with you, I will reschedule the time and place of the review such that it is agreeable with you. Please inform me as soon as possible whether you would like to have a pre-disciplinary review with me, and if so, whether January 11 at 1:00 p.m. at the District office is agreeable to you. If you request your review to be with three (3) Directors, the date, time, and place for the review will also have to be agreeable to them. During a pre-disciplinary review you will be provided with an opportunity to respond orally or in writing and to be represented by a person of your choice. You will have the opportunity to question all materials and individuals involved in the issues surrounding your proposed suspension and to present materials and witnesses on your behalf. The District will also be entitled to present witnesses concerning the reasons for your proposed suspension contained in the Notice of Proposed Suspension. The review will be conducted informally, without regard to technical rules of evidence. Either party may transcribe or record the review. I, or three (3) Directors if you so request in writing, will issue a written determination as to whether the proposed suspension will be sustained, sustained in part and revoked in part, or revoked, within one (1) day from the date of the pre-disciplinary review. A copy of the decision will be delivered to you personally or sent by first-class mail. In the event that you decide not to have a pre-disciplinary review, do not appear at the pre- disciplinary review, or notify me that you will not appear, the proposed suspension will be sustained and your two week suspension without pay will begin on January 15, 2007. If after the pre-disciplinary review your proposed suspension is sustained, then the suspension shall become effective in accordance with the written determination. Very truly yours, Peter L. Holzmeister 3 P O. Box 309—Truckee, CA 96160—Phone 530-587-3896—www.tdpud.org Pagc 1 of 4 Scott Terrell From: Scott Terrell Sent: Wednesday, November 22, 2006 9:38 AM To: 'Tim Wagner' Subject: RE: Big news!!!!!! o.k. From: Tim Wagner [mailto:tim.wagner@sierraclub.org] Sent: Wednesday, November 22, 2006 9:15 AM To: Scott Terrell Subject: RE: Big news!!!!!! Tough questions, Scott. Why don't you give me a call today and we'll see what we can shake out?We're in the midst of moving our offices so I have little time on the computer. Thanks!! Call me on my cell#. Tim Wagner Director, Utah Smart Energy Campaign Utah Chapter Sierra Club 2120 S. 1300 E., Suite 204 Salt Lake City, UT 84106 office: 801/467-9294 cell: 801/502-5450 fax: 801/467-9296 www.Utah_sierraclub.org From: Scott Terrell[mailto:scottterrell@tdpud.org] Sent: Wednesday, November 22, 2006 9:46 AM To: Tim Wagner Cc: Neal Mock; Ronnie Colby,Truckee Biofuels; Brian Woody Subject: RE: Big news!!!!!! Hi Tim, I was hoping that this 6 So. CA city news would deter TDPUD from further pursuing the coal project, but apparently not. But I do think it was helpful and may have pushed a few Board members closer to the fence. I think we may have a 2-2-1 situation on voting. My question for you Tim at this time, if you possibly have knowledge of a similar situation, is: If the Board does go ahead and vote for the project will a group in town filing a lawsuit be able to stop the project? According to the contract language IPP people will not accept a contract if there is pending litigation and possibly other"interference"that may affect the outcome of this. If approved, the Board may try to get the signature in quickly and to IPP. If that happens, then the lawsuit is filed what are the legal ramification with a contract approved and dated prior to January 1, then legal action, then a few years of legal delays, then possibly they try to move forward, only because the contract was signed prior to New Years? Any idea on this? Hi Peter &Steve, This e-mail is in response to your proposed 2 week without pay suspension of me effective January 15, 2007. 1 received this from you and Steve Friday, January 8 around 2:30 p.m. I know that I created some difficulties for you and Steve over the coal issue, but the Board did vote 4-1 against it. As the District's"community relations guy" it was difficult for me to take a stand against the coal project knowing I was going counter to your proposal, but as the"community person" I also felt like I was taking a position that represented the majority of the community and in the community's long-term best interest; again, the Board did vote 4-1 against the project. Apparently, the Board and I felt the same way. During this process you said I had a right to be opposed to the project and express my opinion publicly. That actually made me feel like it was o.k. to do what I was doing. I tried to handle my opposition to the project in a responsible and professional manner. I tried to not make this personal, condescending or against the District. I was against the coal plant proposal. You did say a few weeks after this started that I could not use company resources to"fight this battle"; meaning to stop using my phone and computer to talk to people about this issue. Maybe you also wanted me to avoid talking to other employees in the District about this on company property. I took special precaution with this by working mostly from home. It was tough trying to avoid the community at this point being the District's primary contact person, but I did. I have read over the 2 week Suspension papers and feel that you have jumped a few steps beyond where we should be in a progressive disciplinary action. It appears that you wanted to jump immediately to the step just prior to termination. This seems very personal on your part. Although I have some issues with the suspension causes 1 and 2, 1 take exception with cause three as I never made that statement. I mostly listened to what you had to say in our two very short meetings(about 5 minutes each) and responded to your questions, but did not say anything flip, immature or threatening. I am requesting you drop the suspension at this point and maybe go back to writing some sort of warning letter to me. If necessary, I will let this action be heard before the Board since I do not agree with you on the suspension or the causes. My three choices would be Joe Aguera, Bill Thomason and Pat Sutton as the three Board members presiding over this action. I would have considered Ron, but not Tim as I do not know him very well and he was for the coal proposal I was against. Please let me know ASAP how you want to handle this at this point. Thanks, Scott CHAPTER 4.16 DISCIPLINARY PROCEDURES Sections: 4.16.010 Disciplinary Procedures 4.16.010 Disciplinary Procedures - The principal objectives of this policy are to promote orderly job conduct and the longer range development of a goal-oriented and productive personnel team, help ensure compliance metc.n and Ith to state establ establish federal procedupa�hmeans ibiting dofcriminatory protect protecting practices relating to sex, , employment rights of employees. This policy applies to all permanent employees, except those positions listed in Section 16111 of the Public Utility District Act, to wit, the Clerk/ex-officio Secretary of the Board, the Accountant, the Treasurer, and the General Manager. It is recognized that this policy applies to all employees represented by IBEW Local Union 1245 (bargaining unit employees) as well as certain management level and confidential employees (non-bargaining unit employees). The coverage of non-bargaining unit employees by this policy shall in no manner create any legal or other obligation of IBEW Local Union 1245 toward non- bargaining unit employees. IBEW Local 1245 shall have no obligation whatsoever to provide a defense, provide advice, or otherwise represent non-bargaining unit employees. 4.16.010.1 Definition. The term discipline will be understood as meaning "a state of orderliness" such as in a "disciplined team" or in a "disciplined performance." Therefore, disciplinary action is action taken to maintain an orderly way of doing negative actions or sanctions to be invoked in the event of unacceptable employee performance. It is well to recognize that they are no substitute for positive or constructive actions (such as counseling and goal-setting). 4.16.010.2 Grounds for discipline. The following are examples of conduct for which discipline may be imposed. This list is not exclusive and discipline may be imposed for conduct not set forth below: 4.16.010.2(A) Fraud in securing employment. 4.16.010.2(B) Incompetency. 4.16.010.2(C) Inefficiency. 4.16.010.2(D) Inexcusable neglect of duty. 4.16.010.2(E) Insubordination. 4.16.010.2(F) Dishonesty. 4.16.010.2(G) Intoxication on duty. 4.16.010.2(H) Illegal use of narcotics or other controlled substances. 4.16.010.2(1) Inexcusable absence without leave. 4.16.010.2(J) Conviction of a felony or conviction of a misdemeanor involving the following criminal offenses against persons such as homicide and assault, and against property, such as arson, burglary and theft. A plea or verdict of guilty, or a conviction following a plea of nolo contendere, to any of such criminal offenses is deemed to be a conviction within the meaning of this section. 4.16.010.2(K) Inappropriate treatment of the public or other employees. 4.16.010.2(L) Willful disobedience. 4.16.010.2(M) Misuse of District property. 4.16.010.2(N) Theft. 4.16.010.2(0) Tardiness. 4.16.010.2(P) Other failure ofreflec good ts directly either duty thehours Distnc�t ors of such a serious nature thathis employment. 4.16.010.3 Progressive penalties. In general, a supervisor's approach to matters requiring disciplinary action will consist of the following: Offense Action Penalty First Verbal warning None Second Written report in employee's None file Third Written report in employee's Suspension without pay file Fourth Written report in employee's Discharge file The seriousness of the offense shall be taken into account by the supervisor, and the supervisor need not necessarily proceed to the next level of disciplinary action upon the repetition of the offense. In order for a supervisor to proceed to the next level of disciplinary action, the offense need not be a repetition of a prior offense. 4.16.010.4 Exceptions to progressive penalties - A supervisor need not always follow the progressive penalty schedule contained in Paragraph 3. 4.16.010.4(A) Instances in which supervisors may proceed directly to the third step include, but are not limited to, the following: 1) Serious violation of District safety regulations, procedures, and/or a supervisor's instructions. 4.16.010.4(B) Instances in which supervisors may proceed directly to the fourth step include, but are not limited to, the following: 1) Intentional refusal to follow a supervisor's instructions; gross insubordination; 2) Violations of the basic rules of conduct such as intoxication or theft; 3) Action affecting probationary or temporary employees. 4.16.010.5 Notice and post-disciplinary review. (To be conducted in any case involving a written report and/or a penalty amounting to an employee's loss of not more than five days pay during a twelve month period - e.g., 3 days suspension without pay. No review is required in cases involving only a verbal warning. 4.16.010.5(A) In the case of a written report without any suspension, the written report shall immediately be placed in the employee's file. In the case of suspension without pay, a written report shall immediately be placed in the employee's file, the employee shall be suspended immediately, and the employee shall not be paid for the period of suspension. At the time that the discipline is initiated, the supervisor shall deliver to the employee a written notice containing the following: 4.16.010.5(A)(1) A notice of the disciplinary action to be taken. 4.16.010.5(A)(2) The reason or reasons for the action. 4.16.010.5(A)(3) The charges and the materials upon which the disciplinary action is based, including dates and specific incidents. 4.16.010.5(A)(4) A notification that the employee has the right to a post-disciplinary review, and that the employee may initiate a post-disciplinary review by utilizing the procedure contained in Titie 14, Grievance Procedure, of the current Memorandum of Understanding between the District and the Union. 4.16.010.5(B) If the employee elects to initiate a post-disciplinary review by utilizing the grievance procedure, then the employee and the District shall be bound by all the terms, including the time limits, of the grievance procedure. The grievance procedure shall be the sole method of obtaining a post-disciplinary review for bargaining unit employees and non-bargaining unit employees alike. 4.16.010.6 Notice and pre-disciplinary review. (To be conducted when imposing a penalty which exceeds an employee's loss of more than five days pay during a twelve month period -- e.g., lengthy suspension or discharge). 4.16.010.6(A) At the time that the discipline is proposed, the supervisor shall deliver to the employee, and place in the employee's file, a written notice containing the following: 4.16.010.6(A)(1) A notice of the disciplinary action proposed to be taken. 4.16.010.6(A)(2) The reason or reasons for the action. 4.16.010.6(A)(3) The charges and the materials upon which the proposed disciplinary action is based, including dates and specific incidents. 4.16.010.6(A)(4) A notification that the employee has the right to a pre-disciplinary review at which he may respond, either orally or in writing, to the General Manager of the District (or, if the employee objects in writing to the General Manager, then to three Directors selected by the employee) and to meet with such persons to discuss the proposed discipline. 4.16.010.6(A)(5) A notification that: i) If the proposed discipline is suspension without pay, the employee shall be suspended immediately but shall be paid for a period of five working days after the suspension takes effect. The employee shall also be notified of the date, time and place of a pre-disciplinary review that shall take place on a working day, during working hours, prior to the end of said dive day period. The review shall be scheduled at a time and date agreeable to the employee. ii) If the proposed discipline is discharge, the employee shall be suspended immediately but shall be paid for a period of five working days after the suspension takes effect. The employee shall also be notified of the date, time, and place of a pre- disciplinary review that shall take place on a working day, during working hours, prior to the end of said five day period. The review shall be scheduled at a time and place agreeable to the employee. 4.16.010.6(B) The pre-disciplinary review may be continued upon the written request of the employee, but if continued the District need not pay the employee for any working days after the end of the initial five day period. 4.16.010.6(C) The pre-disciplinary review shall be conducted by the General Manager, or, if the employee objects in writing to the General Manager, then by three Directors selected by the employee. 4.16.010.6(D) During the pre-disciplinary review, the employee will be provided with an opportunity to respond orally or in writing and to be represented by a person of his choice. Further, the employee will have an opportunity to question all materials and individuals involved in the issues, and to present materials and witnesses on the employee's behalf. The District shall also be entitled to present witnesses concerning the charges contained in the notice to the employee. The review shall be conducted informally, without regard to technical rules of evidence. Either party may transcribe or record the review. 4.16.010.6(E) The General Manager (or three Directors, if applicable) shall issue a written determination as to whether the proposed disciplinary penalty will be sustained, sustained in part and revoked n part, or shall be delivered to the employee personally within one day from the de for�sent by first li nary class mail.review. A copy of the decision 4.16.010.6(F) In the event the employee does not appear at the pre-disciplinary review, or notifies management that he will not appear, the penalty will be sustained and the supervisor will immediately proceed to effect the proposed disciplinary action. 4.16.010.6(G)(1) If the proposed discipline is suspension without pay and the penalty is sustained, then the District shall, within the following thirty days, withhold the pay that the employee would otherwise have earned for the period of the suspension. If the proposed discipline is suspension without pay and the penalty is revoked, the employee shall be immediately reinstated with no loss of pay. 4.16.010.6(G)(2) If the proposed discipline is discharge and the penalty is sustained, then the discharge shall become effective immediately upon issuance of the written determination, and the employee shall not receive any pay after the expiration of five working days after the original suspension took effect. If the proposed discipline is discharge and the penalty is revoked, the employee shall be immediately reinstated with no loss of pay. 4.16.010.6(H) If the employee is dissatisfied with the determination resulting from the pre- disciplinary review, his recourse shall be to utilize the procedure contained in Title 14, Grievance Procedure, of the current Memorandum of Understanding between the District and the Union. If the employee utilizes the grievance procedure, then the employee and the District shall be bound by all terms, including the time limits, of the grievance procedure. The grievance procedure shall be the sole method of obtaining a further review of the disciplinary action for bargaining unit and non-bargaining unit employees alike. 4.16.010.7 Removal of written report from employee file If a written report is placed in an employee's file and the employee is not subject to any further disciplinary action of a similar or related nature for a period of two years, then the written report shall be removed from the employee's file. 4.16.010.8 Administration 4.16.010.8(A) Whenever any personnel problem occurs with respect to unsatisfactory performance, attendance, or any other matter affecting the orderly execution of job requirements, the supervisor is expected to cope with the situation promptly, constructively, and in a tactful manner. Avoiding undermines overall management effectiveness, and frequently neglect supervisory responsibility, results in a injustice to the employee. 4.16.010.8(B) Each of the first steps of the disciplinary procedure is to be regarded as a corrective measure and is to be combined with appropriate instruction which, if followed, would make further steps unnecessary. 4.16.010.8(C) The effect of this policy should be: 4.16.010.8(C)(1) The reduction of involuntary terminations. 4.16.010.8(C)(2) The avoidance or minimizing of misunderstandings between supervisory and non-supervisory personnel. 4.16.010.8(C)(3) Ensuring that personnel are provided with notice of unacceptable conduct in sufficient time to permit self-correction and improvements. 4.16.010.8(C)(4) The ensuring that documentation is available to support management's position in the event of discriminatory charges with respect to sex, race, etc. 4.16.010.8(D) Each written report will contain a description of the events requiring disciplinary action. Copies are expected to be distributed promptly to those concerned and will include one copy to be retained in the employee's personnel file. (Resolution 8342) 2001 01/26/07 FRI 14:30 FAX 916 444 3826 M H & A McDgnough Holland&Allen ra MEW Attorneys at Law Fax Cover Sheet G.Richard Brown Attorney at Law Sacramento Offlc® 916,444.3900 tel 916,444.8334 fax rbrown@mhalaw-com January 26, 2007 FAX NO. PHONE NO. TO COMPANY 530 587-1189 Barbara Cahill Truckee Donner Public Utilities District ( ) CC 3 RE Truckee Do►>!ner Public Utilities District NUMBEROrigina OF Cop PAGES will E mailed If you did not receive all pages,please operator: Xathy call as soon as possible. Senders phone#s(91�444-3900 p Message: This was also e-mailed to you IMPORTANT NOTICE RK THE NT AND/Ok F DUCT PRIVILEGES. 7 CONTAINED S NTENDED ONLY FOR THE USE OF THE NDRVOIDUALED BY NAMEDHA90VEo ANDYTHEEPRIVILEGESTHE ARE NOT WAIVEWO D BHE Y F THE ERSON ACTUALLY THIS FAX OR ANY OTHER ER FAX IS OT THE ED REC PI REI IN lBe FAX.CIPIENT THEN ME?LOYEE QR IAGENTpRESPONSIBLE TO DELIVER RECEIVING TO THE NAMED RECIPIENT, ANY USE, DISSEMINATION. DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED, IF YOU NAVE RECEIVED THIS COMMUNICATION IN FLOGERROR, SACRIBUTITOI CA S IMMEDIATELY aE BY TELEPHONE, SERVICE.THANK URN THE ORIGINAL MESSAGE TO US AT 555 CAPITOL MALL, 9TH FLOOR, TRUCKEE DONNER PUBLIC UTILITY DISTRICT PRE-DISCIPLINARY HEARING PROCEDURE HEARING PANEL COMPOSED OF THREE DIRECTORS JANUARY 30, 2007 Under the TDPUD Code, an employee may have his pre-disciplinary hearing before a panel of three Directors selected by the employee in lieu of a pre-disciplinary hearing with the General Manager. A pre-disciplinary hearing is different from a post-disciplinary hearing. In a post-discipline hearing, the District bears the burden of proof in showing that a) the acts alleged were committed by the employee; and b) the penalty imposed is reasonable. In that setting, the District would put on its case .first, then the employee his case. In a pre-disciplinary hearing, there is no burden of proof and no set procedure. The purpose of such a hearing is to give the opportunity for the employee to demonstrate why the discipline, as proposed, should not be carried out. Unlike most pre-disciplinary procedures in other public agencies, TDPUD allows for witnesses to be called and examined during a pre-disciplinary hearing. Based on the above, it is my recommendation that the panel proceed as follows: A. Elect a chairman. B. Allow the employee to address the panel first and to present to the panel such oral and written evidence as he deems appropriate. (The strict rules of evidence do not apply.) The employee may call and examine witnesses. C. After the employee concludes his presentation, the District will present its response. Again, oral and written evidence may be presented, including witnesses as desired. D. At the conclusion of the District's presentation, the panel may allow each side to give a brief"closing argument" if it wishes. -1- E. The panel will then adjourn to closed session to deliberate and make its decision. F. The panel will direct special counsel to prepare its decision and serve it on the parties within one day, unless the parties agree to a longer period. G. Special counsel will rule on procedural or evidentiary questions, unless the panel wishes its chairman to do so in consultation with special counsel. (It is assumed that there will probably be little, if any, such questions.) -2- 01/26/07 FRI 14:30 FAX 916 444 3826 H H & A Q3 002 - TRUCKEE DONNER PUBLIC UTILITY DISTRICT A PRE-DISCIPLINARY HEARING PROCEDURE HEARING PANEL COMPOSED OF THREE DIRECTORS JANUARY 30, 2007 Under the TDPUD Code, an employee may have his pre-disciplinary hearing before a panel of three Directors selected by the employee in lieu of a pre-disciplinary hearing with the General Manager. A pre-disciplinary hearing is different from a post-disciplinary hearing. In a post-discipline hearing, the District bears the burden of proof in showing that a) the acts alleged were committed by the employee; and b) the penalty imposed is reasonable. In that setting, the District would put on its case first, then the employee his case. In a pre-disciplinary hearing, there is no burden of proof and no set procedure. The purpose of such a hearing is to give the opportunity for the employee to demonstrate why the discipline, as proposed, should not be carried out. Unlike most pre-disciplinary procedures in other public agencies, TDPUD allows for witnesses to be called and examined during a pre-disciplinary hearing. . . Based on the above, it is my recommendation that the panel proceed as follows: A. Elect a chairman. B. Allow the employee to address the panel first and to present to the panel such oral and written evidence as he deems appropriate. (The strict rules of evidence do not apply.) The employee may call and examine witnesses. C. After the employee concludes his presentation, the District will present its response. Again, oral and written evidence may be presented, including witnesses as desired. D. .A,t the conclusion of the District's presentation, the panel may allow each side to give a brief"closing argument" if it wishes. -1- O1/26/07 FRI 14:31 FAX 916 444 3826 M H & A f 003 E, The panel will then adjourn to closed session to deliberate and make its decision. F. The panel will direct special counsel to prepare its decision and serve it on the parties within one day,unless the parties agree to a longer period. G. Special counsel will rule on procedural or evidentiary questions, unless the panel wishes its chairman to do so in consultation with special counsel. (It is assumed that there will probably be little, if any, such questions.) Note: If the employee is dissatisfied with the decision of the panel, he may use the grievance procedure outlined in the applicable MOU. -2- Hi Peter, I get bits and pieces from people in the Truckee community about their concern over TDPUD making a 50 year investment in a coal plant. As the TDPUD Green/Building Guy it did catch me by surprise too.On the surface and beyond this action appears to make TDPUD appear hypocritical. Your case for base load is a good one. It would be a much easier sell our involvement in a geothermal steam plant for baseload though. I know that wind and solar don't necessarily serve well as a baseload resource. I think the Green Community would be pleased to know that TDPUD would be willing to make a commitment to Green Power Resources as part of the overall resource mix;filling in above the baseload and for future load growth.Green Power Resources might cost more, but I believe the community would be willing to make that extra investment. A"Conservation Power Plant"could also meet some of this load requirement in order to minimize conservation's impact on rates,which is generally very little,a program of this type could be designed to be revenue neutral; meaning that the program was designed not to have an Impact on rates like the IOUs. Fossil fuels are In many/most of electric utility's power resource'portfolios nationwide.The hope is that this will decrease and be offset by Green Power over time. I think the community's concern over coal as It is considered the"dirfitest"of the fuels/fossil fuels and a major contributor to global warming. I think the community would feel much better If this was not a 50 year commitment, but a"short term"commitment until it we're feasible and reasonable to replace these resources with Green Power. If the Truckee community decided it was willing to Invest in a small share of this coal plant are we on the hook for all 50 years or could we have an early withdraw without penalty7' .. A 50 year commitment to a coal-fired plant in this day and age seems like a huge business liability as countries all over the World are trying to reduce CO2 emissions through the reduction In use of coal-fired and other.fossil-fuel based.power plants. Our investment in this plant might be short-circuited by the Federal Government well before the 50 year life-cycle of the plant. If that happens.how much of an Impact would that have on the cklzens'of Truckee?I actually think that coal plants will go the way of nuclear plants in the US and be phased out quickly over time. And I agree I'm not sure what they,the baseload-power plants,will be replaced with as a stable base-load resource,at least to the degree Americans and the rest of the World currently depend on energy resources. This is not an easy situation to be in, but we need to be careful from both a business and environmental perspective of making a 50 year commitment unless we can get out early without much of a financial impact. Scott Scott Terrell �,� From: Scott Terrell Sent: Tuesday, November 21, 2006 10:13 AM To: Peter Holzmeister, Stephen Hollabaugh Subject; Potential Power Resources for Truckee-from Scott Hi Peter&Steve, I'm not sure how many different options we have considered for meeting power supply into the future. Do we have a report that thoroughly evaluates each of these options including power purchase contracts? While I worked at the Turlock Irrigation District in the Power Resources Department as the Energy Conservation Supervisor/Demand-Side Specialist I help TID create an Integrated Resource Plan where we looked at both Supply-side and Demand-side options.- Many of the options we looked at and implemented we're either revenue-neutral or revenue producing. Many professional in the electric utility industry do not understand the value of demand-side management as a resource procurement option. I used to conduct this type of analysis and give presentations on this at various electric utility functions. I have given considerable thought to the idea that we really ought to pursue conducting an Integrated Resource Plan. This is actually a requirement for Western Area Power Administration power procurement. It is often cheaper and cleaner to save a kwh of electricty than to produce it. From a demand-side perspective this can actually improve the financial health of a utility. I have given considerable thought to the concept of how to implement a Conservation Power Plant for Truckee. Sounds non-credible on the surface, but can be designed so that the utility generates more revenue for its operation that most of all types of power plants. I have thought through how the basic design of this could work and feel it could be quite feasible and we could be implementing this in the very near future.Again, it would be cheaper,cleaner and more profitable for TDPUD to pursue this approach than to invest in a fossil-fuel power plant. Attached is the beginning of a list of various options for both supply-side as well as demand-side management strategies. Let me know if you want to discuss. Scott 1/1.8/2007 Scott Terrell From: Scott Terrell Sent: Sunday, November 26,2006 7:07 PM To: Peter Holzmeister Subject: Message from Scott Terrell H1 Peter, It is unfortunate that we did not have more time to speak about my concern over the proposed involvement of Truckee Donner PUD in investing in/building a 50 year coal plant prior to my correspondence with the Utah Sierra Club. By the way I am not the ringleader and did not make that contact initially. If I we're the ringleader of this effort there would have been opposition at the first meeting in November, but none. I was contacted later by concerned Truckee citizens opposition to this project as they know I am the green building/conservation guy.This opposition is a community-wide effort. Several hundred folks are in the loop on this issue, but I am in contact with only a handful. I have spoken with not a single person for the plant except you and Steve. Even if I completely put my environmental concerns aside the proposal is a complete disaster as I mentioned in an e-mail to you last Monday. If you look at what the So. CA public utilities are doing you will see that they are pulling out of their coal plant investments prematurely.This will be the trend.They are still on the hook for the years of non-use of these plants and their ratepayers/customers will have to cover those costs. if we commit for 50 years and we pull out sooner,which is a foregone conclusion with this coal plant technology, then the TDPUD ratepayers will be on the hook for the remainder of the 50 year investment We almost assuredly will try to get out, but I'm sure many other investors will being trying to bail for the same reasons as we would.The$35/Mwh is not the fully-loaded cost.We need to show the Board and our customers all the costs individually and the total to really be objective about this decision. Please do not look at this as a green concern I have, although that would apply too. Our meeting Wednesday afternoon was as expected.You we're angry because you believe I am betraying my own company. Our company is community-owned and I am trying to prevent TDPUD from an embarrassing mistake by trying to stop this project, Please Understand. I do have 24+years in the electric utility business with 3 CA public Utilities. I have seen many mistakes and they can be disastrous to the company and community. Riverside's investment in Palo Verde was a disaster. They almost got taken over by So. CA Edison after that. I think TID regretted their investment in a hydro project they got Involved in. I found that out after working here. You can let me go if you choose. I am a strong, independent, capable person who will always succeed in life. I think this community would be unfortunate to lose me as my background in demand-side management and renewable energy resources would make me an ideal candidate you help you solve this"crisis". I saved Turlock Irrigation,District several$M and shaved several peak MWs off their load. Not a revenue loss, but a huge revenue gain through"strategic conservation"and the power/load requirements we're reduced. I worked on Tudock Irrigation District's Integrated Resource Plan, required for Western Area Power Administration Power, as the demand-side planner working closely with the supply-side planners like Steve. I have cleared out my office with all my personal belongings and all the"stuff I was storing for the Assoc.for Efficient Environmental Energy Systems and the Sierra Green Building Association. It will shock people to see how clean the office is now. I think it would be better that I work at home this week until you decide how we should handle this situation. I have 12/18/2006 M several boxes that I threw together of the messy stuff in my office that I need to go tttrougn ana clean up. effect, I cleaned up my office by throwing the mess in boxes; so it still needs to be cleaned up and organized and put in files. In spite of our short, but challenging meeting I still know you are a good person who has treated me fairly well for over 14 years except for a few issues like bypassing Susan Craig and myself when you gave all the other management employees a huge raise.You could not find a comparable position to compare me against.That should have not prevented you from raising my income like the others. I also believe there are a few people in this.organization who aggressively influence you in the wrong direction. I think on your own you would make much better decisions. 0 1 will be at home today at 682-8177, Monday or later this week; whenever you decide you are ready to talk to me. Scott 12/18/2006 . J Scott Terrell From: Scott Terrell sent: Tuesday, December 05,2006 9:06 PM To: Peter Ho[zmeister Subject: RP: Meeting w/You-from Scott Hi Peter, I have never been a MAPF member nor attended a MAPF'meeting. I had heard second hand that MAPF was considering a lawsuit over this project. l have had no involvement with MAPF in promoting a lawsuit. Scott From: Peter Holzmeister Sent:Tuesday, December 05, 2006 12:18 PM To: Scott Terrell Subject: RE: Meeting w/You-from Scott Scott, As I told you during our meeting you have the right to express your opinions. You also have the right to associate with people you choose to: You are able to be a member of MAPF is you wish to be. But let's be clear on the point I made during the meeting. You may not engage in activities that are counter to the District's interests on District time, or using District facilities. Please acknowledge that you understand this. Peter From: Scott Terrell Sent: Monday, December 04, 2006 11:10 AM To: Peter Holzmeister Subject: Meeting w/You-from Scott Hi Peter, You are in charge.You have the right to do what you need to do. I am opposed to the plant and that does put me in a very awkward position with the District. I am not a member of MAPF nor have I over been. I can not be held responsible nor do I have the power to tell MAPF or any organization in this community or outside what to do. $Cott 12/18/2006 Ems • � Hi Peter&Steve, This e-mail is in response to your proposed 2 week without pay suspension of me effective January 15, 2007, 1 received this from you and Steve Friday,January 8 around 2:30 p.m. I know that I created some difficulties for you and Steve over the coal issue, but the Board aid vote 4-1 against it. ' As the District's"community relations guy" it was difficult for me to take a stand against the goal project knowing I was going counter to your proposal, but as the"community person"1 also felt like I was taking a position that represented the majority of the community and in the community's long-term best interest; again, the Board did vote 4-1 against the project.Apparently,the Board and I felt the same way. During this process you said I had a right to be opposed to the project and express my opinion publicly.That actually made me feel like it was ox to do what I was doing. I tried to handle my opposition to the project in a responsible and professional manner. I tried to not make this personal, condescending or against the District. I was against the coal plant proposal. You did say a few weeks after this started that I could not use company resources to"fight this battle"; meaning to stop using my phone and computer to talk to people about this Issue, Wybe you also wanted me to avoid talking to other employees in the District about this on company property. I took special precaution with this by working mostly from home. it was tough trying to avoid the community at this point being the District's primary contact person, but I did. I have read over the 2 week Suspension papers and feel that you have jumped a few steps beyond where we should be in a progressive disciplinary action. It appears that you wanted to jump immediately to the step just prior to termination, This seems very personal on your part. Although I have some issues with the suspension causes 1 and 2, 1 take exception with cause three as I never made that statement. I mostly listened to what you had to say in our two very short meetings(about 5 minutes each)and responded to your questions, but did not say anything flip, immature or threatening. I am requesting you drop the suspension at this point and maybe go back to writing some sort of warning letter to me. If necessary, I will let this action be.heard before the Board since I do not agree with you on the suspension or the causes. My three choices would be Joe Aguera, Bill Thomason and Pat Sutton as the three Board members presiding over this action. I would have considered Ron, but not Tim as I do not know him very well and he was for the coal proposal I was against. Please let me know ASAP how you want to handle this at this point. Thanks, Scott Potential Power Resources for t ruciccc Truckee Conservation Potential Study due by July 1,2007 Need for the Development of an Integrated Resource/Demand-side Management Plan Electric Rates Low-Income Baseline Tiered Rates Fuel Switching Switch Electric Baseboard Heaters to Gas Heating Units Switch Electric Water Heaters to Gas Water Heating Peak/Load Management Place Timers on Water Heaters to Nighttime Only Settings Promote Space Heating Thermostats to Nighttime Use Only,is possible Energy Efficiency/Conservation Promote High Efficiency Water Heating Units Electric-Resistance Heating to Ground Source Heat Pumps Commercial Conservation/Efficiency Applications High Efficiency Lighting High Efficiency Motors Large Conservation Activity Build Conservation Power Plant Local Small-Scale Renewable Energy Generation Home/Business-based Solar PV Dist. Generation(SB1) Home/Business-based Wind Generation Solar PV Lighting-from Gardens to Street.Lighting Local Large-Scale Renewable Energy Generation Large Biomass Plant Potential-Europe? Large Central Solar PV Plant w/Forest Service Large-Scale Renewable Energy Generation Geothermal Power Plant-No.NV/Ormatt Other Clean Electric Generation Fuel Cell Demonstration Project Co-Generation Plants Fossil-Fuel Central Plants Gas Combustion Contracts .•. Coal-Fuel Contracts Memorandum of Understanding--TITLE 14 GRIEVANCE PROCEDURE 14.1 Definition: A grievance is defined as meaning any dispute regarding the application of the following: (a) The terms of this Memorandum of Understanding. (b) The discharge, demotion, or discipline of an individual employee. (c) This procedure does not apply to instances of dissatisfaction by employees over their wage rates once such rates have been established by action of the District's Board of Directors following the meet and confer process. (Subsection reformatted 1991) 14.2 Representation: In initiating and prosecuting a grievance, any individual employee shall have the right to present grievances to the District and to have such grievance adjusted without the intervention of Union, provided that the adjustment shall not be inconsistent with the terms of this Memorandum of Understanding, provided that Union's Business Representative shall be given an opportunity to be present at such adjustment, and provided, further, that grievances settled by individual employees without representation by Union Officials shall not bind the Union to an interpretation of this Memorandum of Understanding. 14.3 Time Limits: The time limits specified below may be extended for a reasonable period of time to a definite date and time by the mutual consent of the involved parties. The party requesting the time extension shall make such request in writing and submit for consideration. Time extensions will be valid only with signed approval from both parties. The failure by the involved employee to meet any specified applicable time limit will constitute a withdrawal of the grievance. The failure by the involved employer representative to meet any specified applicable time limit will entitle the involved employee to take the next step in the grievance procedure. 14.4 Grievance Procedure Steps: Step 1: The employee, and/or an employee organization official if desired by the employee, shall discuss the issue with the immediate supervisor. Step 2: The employee, or an employee organization official if desired by the employee, shall reduce the issue to writing and refer the matter to the General Manager of the District within 20 working days after the facts or circumstances giving rise to the grievance are available to the employee, or in the case of disciplinary action against the employee, within ten (10) working days after (1) the employee is given written notice of the discipline, or (2) a written determination is made after a pre-disciplinary review, whichever date is later in time. The written grievance shall state the facts, identify the provisions of the MOU alleged to have been violated, and state the desired remedy. If necessary to resolve the issue, either party may request that an informal meeting be held in order to gather pertinent information. If the dispute is resolved, it shall be reduced to writing and jointly executed by the parties. If the dispute is not resolved within ten (10) working days after the General Manager's receipt of referral, then the employee shall immediately proceed to the next step. Step 3: The employee, or an employee organization official if desired by the employee, shall, within fifteen (15) days of the General Manager's receipt of the referral in Step 2, refer the issue, in writing, to the District's Board of Directors. The Board shall respond, in writing, within ten (10) working days after its next regularly scheduled Board meeting. Step 4: The employee, or an employee organization official if desired by the employee, shall refer the issue to Advisory Arbitration within twenty (20) working days after receipt of the District's response in the foregoing step. The parties shall cooperate in the prompt appointment of an Advisory Arbitrator. If the parties fail to agree upon the Advisory Arbitrator, either party, upon written request to the other, may request the Federal Mediation and Conciliation Service to provide the parties a panel of seven (7) Arbitrators. Upon receipt of such panel the parties will proceed promptly to select an Advisory Arbitrator by alternately striking one name from the panel. The last remaining shall serve as the Advisory Arbitrator. The Advisory Arbitrator shall make a written recommendation to the Board of Directors with respect to the issue submitted for arbitration. The Board of Directors shall issue a final written decision within ten (10) days of the receipt of the recommendation. The cost of Arbitration shall be equally borne by the District and the referring party, except each party shall assume the cost of their presentations. The following rules shall apply at the arbitration: Oral evidence shall be taken only on oath or affirmation. Each party shall have the right to call and examine witnesses, to introduce exhibits and to cross-examine opposing witnesses on any relevant matter even though the matter was not covered in the direct examination. If the employee does not testify in employee's own behalf, employee may be called and cross-examined. The hearing shall not be conducted according to technical evidence rules. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of its admissibility in civil actions. Hearsay evidence, otherwise inadmissible in civil actions, may be used for the purpose of supplementing or explaining other evidence, but shall not be sufficient in itself to support a finding. Note: An employee disputing a penalty of a suspension without pay in excess of five (5) days pay during a twelve (12) month period, or a discharge shall forego Step 1 and 2 of this procedure. PLANNING DIRECTOR NATURE OF WORK Under general direction of the General Manager, directs the work of the Planning Services Department. Is involved in difficult work on highly technical and complex problems. Exercises a considerable degree of decision making involving the analysis of fact and circumstances and must be able to modify procedures where there is no precedent. Has regular contact with District employees, customers and consultants requiring tact and diplomacy. Engages in light to moderate physical exertion and works in an office environment. EXAMPLES OF WORK 1. Prepares departmental budget for submission to General Manager. 2. Plans, directs and reviews the work of subordinates. 3. Develops organization methods and procedures for efficient operation. 4. Maintains appropriate records and makes reports to the General Manager on the procedures and needs of the Planning Services Department. 5. Informs the General Manager of Planning Services Department issues. QUALIFICATIONS Possession of a Bachelor's Degree in business, public administration or science. At least seven years of thorough experience in conservation supplemented by courses in supervision and budgeting. At least three years experience in supervising a staff in an office environment. Knowledge of the utility industry, principles of administration and program planning. Skill in communicating with customers, management, consultants, employees and other agencies verbally and in writing. Ability to plan, organize and direct the work of a professional, technical and administrative staff; analyze problems and develop and implement effective solutions. Possession of a valid Department of Motor Vehicles Class C driver's license. PLH/smc February 1, 1993 PLANNING DIRECTOR NATURE OF WORK Under general direction of the General Manager, directs the work of the Planning Services Department. Is involved in difficult work on highly technical and complex problems. Exercises a considerable degree of decision making involving the analysis of fact and circumstances and must be able to modify procedures where there is no precedent. Has regular contact with District employees, customers and consultants requiring tact and diplomacy. Engages in light to moderate physical exertion and works in an office environment. EXAMPLES OF WORK 1. Prepares departmental budget for submission to General Manager. 2. Plans, directs and reviews the work of subordinates. 3. Develops organization methods and procedures for efficient operation. 4. Maintains appropriate records and makes reports to the General Manager on the procedures and needs of the Planning Services Department. 5. Informs the General Manager of Planning Services Department issues. QUALIFICATIONS Possession of a Bachelor's Degree in business, public administration or science. At least seven years of thorough experience in conservation supplemented by courses in supervision and budgeting. At least three years experience in supervising a staff in an office environment. Knowledge of the utility industry, principles of administration and program planning. Skill in communicating with customers, management, consultants, employees and other agencies verbally and in writing. Ability to plan, organize and direct the work of a professional, technical and administrative staff; analyze problems and develop and implement effective solutions. Possession of a valid Department of Motor Vehicles Class C driver's license. PLH/smc February 1, 1993 Page I of I Scott Terrell From: Scott Terrell Sent: Wednesday, November 22, 2006 9:00 AM To: 'Peggy Towns' Subject: RE: Ni Peggy, I think it was bad planning on TDPUD's part to get us to this situation where we are at right now as you indicated. Our meeting went well last night and we will meet again on Monday or Tuesday night. MAPF is prepared to file a law suit to stop this.According to the contract language they, IPP, will not accept a contract if there is pending litigation of other"interferences".Also, an appeal could be filed to take this to public vote. Thanks for Caring! Scott From: Peggy Towns [malito:sunmt@sbcglobal.net] Sent: Tuesday, November 21, 2006 5:37 PM To: Scott Terrell Subject: Joe Aguera said that the PUD does not have enough contracts for electricity after April 1, 2008 and if they dont get some contracts going now they will have to pay the highest market price. he said we may not have enough electricity in a year. Why didnt the PUD Board look ahead and get things figured out ahead of time:? Why do they have such a hard time finding energy sources? peggy r F, i f f e i x 11/27/2006 s Page 1 of 4 Peter Holzmeister From: Tim Wagner[tim.wagner@sierraclub.org] Sent: Tuesday, November 21, 2006 7:59 AM To: Scott Terrell Cc: Neal Mock; Ronnie Colby,Truckee Biofuels; Brian Woody; Peggy Towns; pmayfield@onebox.com; sfrisch@sbcouncil.org Subject: RE: NEWS FLASH re IPP contract renewals:California Thanks for your kind words Scott. There will be local press on this Wednesday so I will send it out then. And btw— I would love to come to your neck of the woods. Never been and I hear it's simply stunning. Good luck on achieving a victory and let me know if there's anything I can do to help. tw Tim Wagner Director, Utah Smart Energy Campaign Utah Chapter Sierra Club 2120 S. 1300 E., Suite 204 Salt Lake City, UT 84106 office: 801/467-9294 cell: 801/502-5450 fax: 801/467-9296 www.utah_sierraclub_org From: Scott Terrell [mailto:scottterrell@tdpud.org] Sent: Monday, November 20, 2006 5:16 PM To: Tim Wagner Cc: Neal Mock; Ronnie Colby,Truckee Biofuels; Brian Woody; Peggy Towns; pmayfield@onebox.com; sfrisch@sbcouncil.org Subject: RE: NEWS FLASH re IPP contract renewals: California Hi Tim, You obviously did your job along with others to kill several public utilities participation in this project! If you come to Truckee you will have many new friends and our hospitality! Congratulations and thanks for being a good humanitarian! Thank the others for us as I think this decision will likely kill Truckee's participation in this project. Someone from our group is going to send this to all the media in the area. Folks, this may not be the end of Truckee's involvement, but I think we are really close! We still need 500 people to show up to the Nov. 29 Board meeting to oppose this project! Now it's time to start working on Building a Conservation Power Plant in Truckee! Thanks Again, Scott From: Tim Wagner [mailto:tim.wagner@sierraclub.org] > >»1/1MA Z. Public Employees for Environmental Responsibility 2000 P Street, NW • Suite 240 • Washington, D.C. 20036 • 202-265-PEER(7337) • fax: 202-265-4192 e-mail: info@peer.org •website: www.peer.org January 25, 2007 Board of Directors Truckee Donner Public Utility District Joseph Aguera Patricia S. Sutton Bill Thomason P.O. Box 309 Truckee, CA 96160 Re: Scott Terrell Dear Messrs. Aguera and Thomason and Ms. Sutton: We are writing on behalf of Scott Terrell, the Planning Director for the Truckee Donner Public Utility District (TDPUD), concerning the Notice of Proposed Suspension dated January 5, 2007. Public Employees for Environmental Responsibility(PEER) is a national alliance of local, state and federal resource professionals. One of PEER's objectives is to defend and strengthen the legal rights of public employees who speak out about issues concerning natural resource management and environmental protection. We are concerned that the proposed two week suspension without pay appears to be retaliation against Mr. Terrell for the exercise of his First Amendment right to speak as a citizen addressing matters of public concern. We understand that you are the Directors who will preside over a"Skelley hearing" concerning this matter. We request that you consider the concerns which we raise here, which we believe merit revoking the proposed suspension. Factual Background As we understand it, the background of this dispute is TDPUD's consideration of a 50 year power supply contract with a proposed coal-fired plant to be built in Utah. The proposal was very controversial in the community for both economic and environmental reasons, and has since been rejected by the Board. Concerns included the length of the contract commitment, especially given the prospect for future restrictive regulation of sources of greenhouse gasses, and a California law coming into effect on January 1, 2007, forbidding contracts longer than 5 years for energy sources which do not meet greenhouse gas emission performance standards.' The proposed coal-fired plant would be a polluting energy source and a large contributor of greenhouse gasses. ` CA Senate Bill 1368, Chapter 598, filed September 29, 2006. Field Offices: California• Florida•Maine• New England•New Jersey• Refuge Keeper•Rocky Mountain•Tennessee a Texas • Washington 0 n<7 21 _f In November, 2006, in his capacity as the Planning Director at TDPUD, Mr. Terrell began to receive communications from citizens concerned about the contract proposal. On November 20, 2006, Mr. Terrell informed the General Manager, Peter Holzmeister, about his own and the community's concerns about the contract. Ex. 1. Mr. Terrell followed up the next day with a communication to Mr. Holzmeister and Stephen Hollabaugh, the District's Power Supply Engineer, providing a list of strategies that would help reduce TDPUD's baseload power requirements as an alternative to the proposed coal plant contract. Ex. 2. On November 22, 2006, Mr. Terrell had an email exchange with Tim Wagner of the Utah Chapter of the Sierra Club. (Attachment to Notice of Proposed Suspension). Mr. Terrell inquired whether, if the Board voted for the proposed contract, a group in town would file a lawsuit to stop the project, and what the legal ramifications of the pendency of such a lawsuit would be. Mr. Wagner responded that those were difficult questions, and suggested a phone call to discuss them. That afternoon,Mr. Holzmeister asked for a meeting with Mr. Terrell, and told him that he had retrieved an e-mail of Mr. Terrell's that indicated he was against the coal-fired plant contract and that this was inappropriate. Mr. Holzmeister accused Mr. Terrell of being a "ring leader" of the opposition to the contract. Mr. Terre'.1 tried to explain that he was not a ring leader,but merely one of a growing group of hundreds of people in the Truckee community who opposed the project. Subsequently, on November 26, Mr. Terrell followed up with an e-mail message to Mr. Holzmeister, explaining that he was not leading opposition to the contract,but rather it was a community-wide effort, and that he been contacted by only a few of the many opponents of the project. He reiterated his reasons for opposing the contract, stating that he was trying to save the TDPUD from an embarrassing mistake that could hurt the company and the community. Ex. 3. Because of Mr. Holzmeister's anger over the situation, Mr. Terrell decided to clear out his office and work at home until Mr. Holzmeister decided how to handle the situation. Id. From that time until January 2, 2007, Mr. Terrell primarily worked at home and took vacation time around the holidays. While he did work at the office a few days during the week before Christmas,he did not work at the office at all until after the Board voted against the contract for the coal fired plant on December 13, 2006. He felt that he was in an awkward position at the office. Management was angry about his opposition to the contract and his communications with opponents in the community. However, at the same time he was known as the environmental professional at TDPUD,because of his promotion of energy and water efficiency, renewable energy, green building and sustainability. As a result, members of the public were contacting him with their concerns about the project. He chose to stay away to avoid these problems. During this period, Mr. Terrell engaged in personal advocacy as a citizen in opposition to the project, outside of the office and without the use of District resources. He spoke in opposition to the contract at the Board meetings of November 29, 2006 and December 13, 2006. He also authored two opinion pieces which appeared in the Sierra Sun on November 29 and December 8, 2006. He was never involved in advocating or planning any litigation against -2- TDPUD concerning the proposed contract or any other matter. On December 4, 2006 Mr. Terrell met again with Mr. Holzmeister, who told him, as reflected in a follow-up e-mail, Ex 4: you have a right to express your opinions. You also have a right to associate with the people you choose to. You are able to be a member of MAPF if you wish to be.2 But let's be clear on the point I made during the meeting. You may not engage in activities that are counter to the District's interests on District time, or using District facilities. Please acknowledge that you understand this. At this point, Mr. Terrell understood that his public opposition to the proposed contract was acceptable to his employer as long as he did not engage in advocacy on the District's time or using District facilities. While Mr. Terrell had engaged in a few communications from the office when the issue of the contract for the coal-fired plant was first raised, he did not use District time or District facilities for his advocacy activities after he received this warning. See, Ex. 5. Disciplinary Charges On January 5, 2007, which was shortly after Mr. Terrell returned to work at the office and well after the Board rejected the contract proposal, Mr. Terrell was presented with the Notice of Proposed Suspension by Mr. Holzmeister and Mr. Hollabaugh. The Notice acknowledges that: As we discussed in two private meetings during this entire process, you generally have the right to express your opinion on matters of great public interest such as this proposed power supply contract. The fact that you are an employee of the District and that your opinion is contrary to the proposal of the District management does not prohibit you from expressing it, nor does it prohibit you from participating in meetings with other people who also believe that the proposal is ill-advised. Receiving various opinions, no matter how uncomfortable those opinions may be, is important to the process of evaluating public policy. Notice at 1. The Notice goes on to claim, however that Mr. Terrell violated appropriate limits applicable to his actions within the capacity of his job duties. Id. at 2. Specifically, the Notice sets forth three charges against Mr. Terrell. These charges are factually incorrect. They appear to be an attempt at providing a pretext for disciplinary action whose real basis is precisely the one 2 MAPF is the Mountain Area Preservation Foundation. Mr. Terrell informed Mr. Holzmeister that in fact he had never been a MAPF member or attended one of their meetings. He had heard second hand that MAPF was considering a lawsuit over the proposed contract, but had no involvement in promoting a lawsuit. Ex. 4. -3- that the Notice disclaims: Mr. Terrell's expression of opinion and advocacy with regard to the proposed power supply contract. TDPUD management is apparently aware that such a basis for discipline would be a violation of Mr. Terrell's rights of free speech protected by the First Amendment to the Constitution. However, the attempt at supplying another rationale for the disciplinary action simply is not credible. The first charge is that Mr. Terrell, while acting in the capacity of his employment duties, participated in an effort to bring legal action against the District's Board of Directors. The sole evidence for this claim is the November 22, 2006 e-mail discussed above. The e-mail itself reveals that Mr. Terrell did not in fact"ask[] for assistance in taking legal action against the District,"Notice at 2, but merely inquired as to whether any"group in town"would file a lawsuit, and what the implications of the pendency of such a lawsuit would be. The communication contains nothing like a request for assistance in filing a lawsuit. Attachment to Notice. Nor is there any other evidence that Mr. Terrell was involved in any way with any effort to bring a lawsuit against his employer. As noted above, Mr. Terrell informed his management that he had only heard about the possibility of a lawsuit second hand, and had no role in planning or promoting any lawsuit. It is true that the e-mail to the Sierra Club staff person was sent from Mr. Terrell's office computer. However, as noted above, Mr. Terrell stopped using any office facilities to communicate with opponents of the proposed contract after he was asked not to do so by management. The second charge claims that in the capacity of his employment duties, Mr. Terrell made unspecified comments which impeded the work of the District's Power Supply Engineer, distracted co-workers and"created a severe office uproar." Notice at 2. No information as to dates, times, places or any further details are provided. This claim is not factually correct, and could not be, given that Mr. Terrell stayed away from the office after this controversy began. Other than a few e-mail communications, he had no contact with the Mr. Hollabaugh, the Power Supply Engineer, during this period. Mr. Terrell's private advocacy in opposition to the contract may have caused Mr. Hollabaugh some problems, but that advocacy did not occur in the capacity of Mr. Terrell's employment duties, did not disrupt the workplace, and is protected by the First Amendment.' The third charge claims that in meetings with Mr. Holzmeister, Mr. Terrell stated "I know how to get my way," a statement which the Notice characterizes as "grossly insubordinate." Notice at 2. This claim also is inaccurate; Mr. Terrell did not make any such statement. Consistent with applicable law, the Notice does not claim that it was insubordinate to do what Mr. Terrell actually did, which was to respectfully disagree with his management on a policy matter, and to express that disagreement publicly in his capacity as a private citizen. As discussed below, even if Mr. Terrell had made the claimed statement, one such statement would not merit the proposed discipline, which is the most severe penalty short of termination in 3 In any event, Mr. Terrell was only one of many opponents of the contract. -4- accordance with the District's progressive disciplinary policies. Applicable Law The Supreme Court has recently reconfirmed that"public employees do not surrender all their First Amendment rights by reason of their employment." Garcetti v. Ceballos, 126 S. Ct. 1951, 1957 (2006).4 "So 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." 126 S. Ct. 1958. The Court reaffirmed its earlier holding in Pickering v. Board of Education, 391 U.S. 563 (1968), that a teacher's letter to a local newspaper addressing issues including the funding policies of his school board was protected by the First Amendment. 126 S. Ct. at 1957. The Supreme Court held in Pickering that this type of speech did not hinder the employer's efficient and effective operation because it did not"impede[] the teacher's performance of his daily duties in the classroom or. . . interfere[] with the regular operation of the schools generally." 391 U.S. at 572-73. Likewise, Mr. Terrell's opinion pieces in the newspaper and statements at public TDPUD Board meetings were statements as a citizen about matters of public concern, and did not interfere with Mr. Terrell's performance of his job duties or interfere with the operation of the PUD generally. They are protected by the First Amendment. A public employee's speech in his capacity as a private citizen is no less protected because the subject matter is related to his employment duties. To the contrary, "[t]he Court has acknowledged the importance of promoting the public's interest in receiving the well-informed views of government employees engaging in civic discussion." Ceballos, 126 S. CT. at 1958. In Pickering, the Court noted that the speech of the teacher was especially valuable because "[t]eachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal." 391 U.S. at 572. As the Supreme Court stated in a later case: Underlying the decision in Pickering is the recognition 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. See 391 U.S. at 572. The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it. San Diego v. Roe, 543 US 77, 82 (2004). Likewise here, because of Mr. Terrell's employment 4 The TDPUD is a public agency of the State of California. See, Public Utility District Act, Division 7, §§ 15701-709 and 15797. Its employees are public employees and are required by State law to be subject to a civil service program. 1d., §16194. -5- and his particular duties at TDPUD, as well as his 24 years of experience in the California electric utility industry, he was especially knowledgeable about the environmental and economic issues involved with the proposed power supply contract. The First Amendment protects his interest in speaking freely as well as the public's interest in receiving his informed opinion. In sum, Mr. Terrell's public advocacy with regard to the proposed contract is protected by the First Amendment. The stated reasons for his suspension are based upon purported transgressions which did not occur, but which are related to Mr. Terrell's constitutionally protected public advocacy. Because it appears that the real reason for the proposed discipline is retaliation for advocacy protected by the First Amendment, the Board should revoke the proposed suspension. Even assuming that Mr. Terrell did engage in some activity meriting discipline, the purported two week suspension without pay is out of line with TDPUD's disciplinary procedures. The District employs progressive penalties, with a verbal warning and no penalty the usual response to a first offense. For a second offense, the usual response is a written report in the employee's file with no penalty. Only for a third offense is suspension without pay provided. The next and final level of discipline is discharge. Chapter 4.16 Disciplinary Procedures, § 4.16.010.3. While a supervisor need not always follow these procedures, § 4.16.010.4, proceeding directly to the third step is permitted in situations such as a"serious violation of District safety regulations,procedures and/or a supervisor's instruction." § 4.16.010.4(A). Mr. Terrell has been employed by TDPUD for 14 years without any prior disciplinary action. His offenses, if any, at most involved some disrespectful communications with his supervisors, although Mr. Terrell contends that he has always handled his disagreements with the General Manager and District Engineer civilly and respectfully. He certainly has not committed any serious violations of safety regulations or procedures or of a supervisor's instructions. If the Board finds that any discipline is warranted, it should be limited to the first or second levels of discipline, a verbal warning or a written report to Mr. Terrell's file. However, the gross disproportion between any credibly alleged offense and the proposed discipline is another indication that the discipline is not actually related to the claimed offenses but to Mr. Terrell's constitutionally protected advocacy. In order to avoid a First Amendment transgression, the Board should decline to impose any discipline at all. We thank you for your consideration of this submission. Please do not hesitate to contact us if you have any questions. -6- t Sin e�ely, � Paula Dinerstein Senior Counsel Richard Condit General Counsel Public Employees for Environmental Responsibility 2000 P Street,N.W. Suite 240 Washington, DC 20036 202-265-7337 (tel) 202-265-4192 (fax) pdinerstein@peer.org rcondit@peer.org Attachments: Exhibits 1 through 5 -7- rx Hi Peter, I get bits and pieces from people in the Truckee community about their concern over TDPUD making a 50 year investment in a coal plant As the TDPUD Green/Building Guy it did catch me by surprise too. On the surface and beyond this action appears to make TDPUD appear hypocritical. Your case for We load is a good one. It would be a much easier sell our involvement in a geothermal steam plant for baseload though. I know that wind and solar don't necessarily serve well as a baseload resource. I think the Green Community would be pleased to know that TDPUD would be willing to make a commitment to Green Power Resources as part of the overall resource mix;filling in above the baseload and for future load growth.Green Power Resources might cost more,but I believe the . community would be willing to make that extra Investment A"Conservation Power Plant"could also meet some of this load requirement in order to minimize conservation's impact on rates,which is generally very little,a program of this type could be designed to be revenue neutral; meaning that the program was designed not to have an impact on rates like the IOUs. Fossil fuels are In many/most of electric utility's power resource'portfolios nationwide.The hope Is that this will decrease and be offset by Green Power over time. I think the community's concern over coal as it is considered the"dirtitest°of the fuelslfossil fuels and a major contributor to global warming. I think the community would feel much better if this was not a 50 year commitment, but a"short term'commitment until it we're feasible and reasonable to replace these resources with Green Power. If the Truckee community decided it was willing to Invest in a small share of this coal plant are we on the hook for all 50 years or could we have an early withdraw without penalty?' A 50 year commitment to a coal-fired plant in this day and age seems like a huge business liability as countries all over the World are trying to reduce CO2 emissions through the reduction In use of coal-fired and other.fossil:fuei based.power plants. Our investment in this plant might be short-circuited by the Federal Government well before the 50 year life-cycle of the plant If that happens how much of an Impact would that have on the citizens'of Truckee?I actually think that coal plants oil go the way of nuclear plants in the US and-be phased out quickly over time. And I agree I'm not sure what they,the baseload-power plants,will be replaced with as a stable base4oad resource,at least to the degree Americans and the rest of the World currently depend on energy resources. This is not an easy situation to be in, but we need to be careful from both a business and environmental perspective of making a 50 year commitment unless we can get out early without much of a financial impact. Scott Scott Terrell From: Scott Terrell Sent: Tuesday, November 21, 2006 10:13 AM To: Peter Holzmeister; Stephen Hollabaugh Subject: Potential Power Resources for Truckee-from Scott Hi Peter&Steve, I'm not sure how many different options we have considered for meeting power supply into the future. Do we have a report that thoroughly evaluates each of these options including power purchase contracts? While u iIervisworked at the or/Demand-Sidelock Irrigation Specialist I help TTrIA create act in the Integrated Resourer Resources ce Department n where we looked at both tion Supply-side and Demand-side options.- Many of the options we looked at and implemented we're either revenue-neutral or revenue producing. Many pro o not understand the ue of demand-side manement as resource f procurement option, I used o`conductndusy dthis type of analysis and lg give presentations on this a at various P electric utility functions. I have given considerable thought to the idea that we really ought to pursue conducting an Integrated Resource Plan. This is actually a requirement for Western Area Power Administration power procurement. It is often cheaper and cleaner to save a kwh of electriety than to produce it. From a demand-side perspective this can actually improve the financial health of a utility. I have given considerable thought to the concept of how to implement a Conservation Power Plant for Truckee. Sounds non-credible on the surface, but can be designed so that the utility generates more revenue for its operation that most or all types of power plants. I have thought through how the basic design of this could work and feel it could be quite feasible and we could be implementing this in the very near future.Again,it would be cheaper, cleaner and more profitable for TDPUD to pursue this approach than to invest in a fossil-fuel power plant. Attached is the beginning of a list of various options for both supply-side as well as demand-side management strategies. Let me know if you want to discuss. Scott 1/18/2007 Scott TerrellFrom: Scott Terrell Sont: Sunday, November 26,2006 7:07 PM To: Peter Holzmeister Subject: Message from Scott Terrell Hi Peter, It is unfortunate that we did not have more time to speak about my concern over the proposed involvement of Truckee Donner PUD in investing in/building a 50 year coal plant prior to my correspondence with the Utah Sierra Club. By the way I am not the ringleader and did not make that contact initially. If I we're the ringleader of this effort there would have been opposition at the first meeting in November, but none. I was contacted later by concerned Truckee citizens opposition to this project as they know I am the green building/conservation guy.This opposition is a community-wide effort. Several hundred folks are in the loop on this issue, but I am in contact with only a handful. I have spoken with not a single person for the plant except you and Steve. Even if I completely put my environmental concerns aside the proposal is a complete disaster as I mentioned in an a-mail to you last Monday. if you look at what the So. CA public utilities are doing you will see that they are pulling out of their coal plant investments prematurely.This will be the trend.They are still on the hook for the years of non-use of these plants and their ratepayers/customers will have to cover those costs. If we commit for 50 years and we pull out sooner,which is a foregone conclusion with this coal plant technology, then the TDPUD ratepayers will be on the hook for the remainder of the 50 year investment. We almost assuredly will try to get out, but I'm sure many other investors will being trying to bail for the same reasons as we would.The$35/Mwh is not the fully-loaded cost.We need to show the Board and our customers all the costs individually and the total to really be objective about this decision. Please do not look at this as a green concern I have, although that would apply too. Our meeting Wednesday afternoon was as expected.You we're angry because you believe I am betraying my own company. Our company is community-owned and I am trying to prevent TDPUD from an embarrassing mistake by trying to stop this project, Please Understand. I do have 24+years in the electric utility business with 3 CA public Utilities. I have seen many mistakes and they can be disastrous to the company and community. Riverside's investment in Palo Verde was a disaster. They almost got taken over by So.CA Edison after that. I think TID regretted their investment in a hydro project they got involved in. I found that out after working here. You can let me go if you choose. I am a strong, independent, capable person who will always succeed in life. I think this community would be unfortunate to lose me as,my background in demand-side management and renewable energy resources would make me an ideal candidate you help you solve this"crisis". I saved Turlock Irrigation.District several$M and shaved several peak MWs off their load. Not a revenue loss, but a huge revenue gain through"strategic conservation"and the power/load requirements we're reduced. I worked on Turlock Irrigation District's Integrated Resource Plan, required for Western Area Power Administration Power, as the demand-side planner working closely with the supply-side planners like Steve. I have cleared out my office with all my personal belongings and ail the"stuff" I was storing for the Assoc.for Efficient Environmental Energy Systems and the Sierra Green Building Association. It will shock people to see how clean the office is now, l think it would be better that I work at home this week until you decide how we should handle this Situation. l have 12/19/2006 of stuff office t I need to o WOUP anu Clean several boxes that I threw yffcegby throwiing he mess n Iboxes:so t still needs to be cleaned up and organized and effect, I cleaned up my Y put in files. In spite of our short,but challenging meeting I still know you are a good person who has treated me fairly well for over 14 years except for a few issues like bypassing Susan Craig and myself when you gave all the other management employees a huge raise.You could not find a comparable position to compare me against.That should have not prevented you from raising my income like the others. I also believe there are a few people in this.organization who aggressively influence you in the wrong direction. I think on your own you would make much better decisions. I will be at home today at 582-8177, Monday or later this week;whenever you decide you are ready to talk to me. Scott 12/18/2006 Scott Terrell From: Scott Terrell sent: Tuesday, December 05,2006 9:06 PM To: Peter Holzmeister Subject: RP: Meeting w/You-from Scott Hi Peter, I have never been a MAPF member nor attended a MAPF meeting. I had heard second hand that MAPF was considering a lawsuit over this project. I have had no involvement with MAPF in promoting a lawsuit. Scott From: Peter Holzmeister Sent:Tuesday, December 05, 200612:18 PM To: Scott Terrell Subject: RE: Meeting w/You-from Scott Scott, As I told you during our meeting you have the right to express your opinions. You also have the right to associate with people you choose tm You are able to be a member of MAPF is you wish to be. But let's be clear on the point I made during the meeting. You may not engage in activities that are counter to the Nitrict s interests on District time, or using District facilities. Please acknowledge that you understand this. Peter From: Scott Terrell Sent: Monday, December 04, 200611:10 AM To: Peter Holzmeister Subject: Meeting w/You-from Scott Hi Peter, You are in charge.You have the right to do what you need to do. I am opposed to the plant and that does put me in a very awkward position with the District. I am not a member of MAPF nor have I ever been. 1 can not be held responsible nor do I have the power to tell MAPF or any organization in this community or outside what to do. Scott 12/18/2006 Hi Peter&Steve, This e-mail is in response to your proposed 2 week without pay suspension of me effective January 15, 2007, 1 received this from you and Steve Friday,January B around 2:30 p.m. I know that I created some difficulties for you and Steve over the coal issue, but the Board aid vote 4-1 against it. As the District's"community relations guy" it was difficult for me to take a stand against the goal project knowing I was going counter to your proposal, but as the"community person"I also Felt like I was taking a position that represented the majority of the community and in the community's long-term best interest; again,the Board did vote 4-1 against the project.Apparently,the Board and I felt the same way. During this process you said I had a right to be opposed to the project and express my opinion publicly.That actually made me feel like it was o,k. to do what I was doing. I tried to handle my opposition to the project in a responsible and professional manner. I tried to not make this personal, condescending or against the District. I was against the coal plant proposal. You did say a few weeks after this started that I could not use company resources to"fight this battle"; meaning to stop using my phone and computer to talk to people about this Issue. Wybe you also wanted me to avoid talking to other employees in the District about this on company property. I took special precaution with this by working mostly from home. It was tough trying to avoid the community at this point being the District's primary contact person, but I did. I have read over the 2 week Suspension papers and feel that you have jumped a few steps beyond where we should be in a progressive disciplinary action. It appears that you wanted to jump immediately to the step just prior to termination. This seems very personal on your part. Aithough I have some issues with the suspension causes 1 and 2, 1 take exception with cause three as I never made that statement. I mostly listened to what you had to say in our two ve►y short meetings(about 5 minutes each) and responded to your questions, but did not say anything flip, immature or threatening. I am requesting you drop the suspension at this point and maybe go back to writing some sort of warning letter to me, if necessary, I will let this action be.heard before the Board since I do not.agree with you on the suspension or the causes. My three choices would be Joe Aguera, Bill Thomason and Pat Sutton as the three Board members presiding over this action. I would have considered Ron, but not Tim as I do not know him very well and he was for the coal proposal I was against. Please let me know ASAP how you want to handle this at this point. Thanks, Scott Potential Power Resources for i rucxee Truckee Conservation Potential Study due by July 1,2007 Need for the Development of an Integrated Resource/Demand-side Management Plan Electric Rates Low-Income Baseline Tiered Rates Fuel Switching Switch Electric Baseboard Heaters to Gas bleating Units Switch Electric Water Heaters to Gas Water Heating Peak/Load Management Place Timers on Water Heaters to Nighttime Only Settings Promote Space Heating Thermostats to Nighttime Use Only,is possible Energy Efficiency/Conservation Promote High Efficiency Water Heating Units Electric-Resistance Heating to Ground Source Heat Pumps Commercial Conservation/Efficiency Applications High Efficiency Lighting High Efficiency Motors Large Conservation Activity Build Conservation power Plant Local Small-Scale Renewable Energy Generation Home/Business-based Solar PV Dist. Generation(SB1) Home/Business-based Wind Generation Solar PV Lighting-from Gardens to Street.Lighting Local Large-Scale Renewable Energy Generation Large Biomass Plant Potential-Europe? Large Central Solar PV Plant w/Forest Service Large-Scale Renewable Energy Generation Geothermal Power Plant-No.NVIOrmatt Other Clean Electric Generation Fuel Cell Demonstration Project Co-Generation Plants Fossil-Fuel Central Plants Gas Combustion Contracts ... Coal-Fuel Contracts Memorandum of Understanding--TITLE 14 GRIEVANCE PROCEDURE 14,1 Definition: A grievance is defined as meaning any dispute regarding the application of the following: (a) The terms of this Memorandum of Undeof an employee. (b) The discharge, demotion, or discipline employees I to instances of dissatisfaction baction of the (c) This procedure does not apply Subsection over their wage rates once such ratehe v etband confer proccess. District's Board of Directors following reformatted 1991) individual and prosecuting a grievance, any Representation: In initiating resent grievances to the District and to have 14.2 Rep provided that the employee shall have the right to p such grievance adjusted without the intervention of Union, p e adjustment shall not be inconsistent with theRter esntative shall be given an of this Memorandum o Understanding, provided that Unions Business and provided, further, that resent at such adjustment, Union opportunity to be p without representation by grievances settled by individual employeesretation of this Memorandum of Officials shall not bind the Union to an interp Understanding. specifiedts below may be extended for a reasonable 14.3 Time Limits: The atdefin tel date and time by the mutual consent of the involved period of time to the time extension shall make such request in parties. The party requesting to meet submit for consideration. Time extensions employeele °nly with writing and su parties. The failure by the grievance. signed approval from both p specified n specified applicable time limit will con tresentativedtowmeet the p • the any p the involved employe P The failure by employee to take the next step in applicable time limit will entitle the involved emp Y grievance procedure. 14.4 Grievance Procedure Steps: Step 1 The employee, and/or an employee organization official if desired by the employee, shall discuss the issue with the immediate supervisor.mployee, or fired b the Step 2: The e an employee organization official if des Y shall reduce the issue to writings s afteertheefacts orrt�rcumstances he General employee, Manager of the District within 20 working Y giving rise to the grievance are available to the employee, or in the case of y action against the employee, within ten (10) working days after (1) disciplinary 2 a written or ( ) the employee is given written notice of thlinary e iew,cwhichever date is later in determination is made after a grievance shall state pthe acts, identify the provisions of the time. The written g If necessary and state the desired remedy. MOU alleged to have been violated request that an informal meeting be held in to resolve the issue, either party order to gather pertinent information. If the dispute is resolved, it shall e reduced to writing and jointly executed by the parties. If the dispute is not resolved within ten (10) working days after the General Manager's receipt of referral, then the employee shall immediately proceed to the next step. Step 3: The employee, or an employee organization official if desired by the employee, shall, within fifteen (15) days of the General Manager's receipt of the referral in Step 2, refer the issue, in writing, to the District's Board of Directors. The Board shall respond, in writing, within ten (10) working days after its next regularly scheduled Board meeting. Step 4: The employee, or an employee organization official if desired by the employee, shall refer the issue to Advisory Arbitration within twenty (20) working days after receipt of the District's response in the foregoing step. The parties shall cooperate in the prompt appointment of an Advisory Arbitrator. If the parties fail to agree upon the Advisory Arbitrator, either party, upon written request to the other, may request the Federal Mediation and Conciliation Service to provide the parties a panel of seven (7) Arbitrators. Upon receipt of such panel the parties will proceed promptly to select an Advisory Arbitrator by alternately striking one name from the panel. The last remaining shall serve as the Advisory Arbitrator. The Advisory Arbitrator shall make a written recommendation to the Board of Directors with respect to the issue submitted for arbitration. The Board of Directors shall issue a final written decision within ten (10) days of the receipt of the recommendation. The cost of Arbitration shall be equally borne by the District and the referring party, except each party shall assume the cost of their presentations. The following rules shall apply at the arbitration: Oral evidence shall be taken only on oath or affirmation. Each party shall have the right to call and examine witnesses, to introduce exhibits and to cross-examine opposing witnesses on any relevant matter even though the matter was not covered in the direct examination. If the employee does not testify in employee's own behalf, employee may be called and cross-examined. The hearing shall not be conducted according to technical evidence rules. Any relevant evidence shall be admitted if it is the sort of evidence on which responsible persons are accustomed to rely in the conduct of serious affairs, regardless of its admissibility in civil actions. Hearsay evidence, otherwise inadmissible in civil actions, may be used for the purpose of supplementing or explaining other evidence, but shall not be sufficient in itself to support a finding. Note: An employee disputing a penalty of a suspension without pay in excess of five (5) days pay during a twelve (12) month period, or a discharge shall forego Step 1 and 2 of this procedure. 2001 01/26/07 FRI 14:30 FAX 916 444 3828 $ & A McDonough Holland&Allan ra M+W AttOMSYS ar Law Fax Cover Sheet G.Richard Brown Attorney at Law Sacramento Office 916,444.3900 tel 916.444.8334 fax rbrown®,mhalaw-com January 26,2007 FAX NO. PHONE NO. COMPANY 530 587-1189 TO Barbara Cahill Truckee Donner Public Utilities District ( ) CG NUMBER OF PAGES SENT 3 RE Truckee Donner Public Utilities District original/Copy will not be mailed If you did not receive all pages,please Senders phone (91�444-3900 Operator: Katl'y call as soon as Possible- Message: This was also e-mailed to you IMPORTANT NOTICE THE INFORMATION C S 7 N I iNED IN THIS FAX MESSAGE IS IN s INTENDED ONLY FOR THE USE OF THENNDIRVIIDUALENAMED THE ABOVE, AND HE PRIVILEGES THE A E NOATTOANF T WAIVED BY PRODUCT PRIVILEGETHIS FAX II R ANY OTHER READER OF THE FAX IS NOT THE VIRTUE OF THIS HAVING THENEMEPLOYEE OR IF! AGENT PERSON RESPONSIBLE TO DELVER IT TO HEONAMED RECIPIENT.COMMUNICATION IN NATION. NAMED RECIPIENT, OR i DISTRIBUTION OR COPYMED OF IATELy1 BY�ELEPHONE�AND RETURN THE HORIGINAL MESSAGE O UC;ES AT THIS CAPITOLMAL 9TH FROOR, PLEASE NOTIFY US IM SACRAMENTO,CA 95814,VIA THE U.S.POSTAL SERVICE.THANK YOU. R KEE DONNER PUBLIC UTILITY DISTRICT TRUC PRE-DISCIPLINARY HEARING PROCEDURE ORS HEARING PANEL COMPOSED OF THREE JANUARY 30, 2007 Under the TDPUD Code, an employee may have his pre-disciplinary hearing before a panel of three Directors selected by the employee in lieu of a pre-disciplinary hearing with the General Manager. A pre-disciplinary hearing is different from a post-disciplinary hearing. In a post-discipline hearing, the District bears the burden of proof in showing that a) the acts alleged were committed by the employee; and b) the penalty imposed is reasonable. In that setting, the District would put on its case first, then the employee his case. In a pre-disciplinary hearing, there is no burden of proof and no set procedure. The purpose of such a hearing is to give the opportunity for the employee to demonstrate why the discipline, as proposed, should not be carried out. Unlike most pre-disciplinary procedures in other public agencies, TDPUD.allows for witnesses to be called and examined during a pre-disciplinary hearing. Based on the above, it is my recommendation that the panel proceed as follows: A. Elect a chairman. B. Allow the employee to address the panel first and to present to the panel such oral and written evidence as he deems appropriate. (The strict rules of evidence do not apply.) The employee may call and examine witnesses. C. After the employee concludes his presentation, the District will present its response. Again, oral and written evidence may be presented, including witnesses as desired. D. At the conclusion of the District's presentation, the panel may allow each side to give a brief"closing argument" if it wishes. -1- E. The panel will then adjourn to closed session to deliberate and make its decision. F. The panel will direct special counsel to prepare its decision and serve it on the parties within one day, unless the parties agree to a longer period. G. Special counsel will rule on procedural or evidentiary questions, unless the panel wishes its chairman to do so in consultation with special counsel. (It is assumed that there will probably be little, if any, such questions.) -2- f The method of advertising for applicant s for employment shall be 4.12.020 Adv_ e._._- ' determined by the General Manager or his designee. _ (Minute Order 88-187) 4.12.030 Amendment of the District Conflict of Intere he°os tionVhenever wou d be required toa new on s file created, or an existing job description is revised, such that t p a Statement of Economic,lnterest under the terms of State Code be amended to add said recommend to the Board that.the District Conflict of Interest position. (Ord 2002-05) CHAPTER 4.16 DISCIPLINARY PROCEDURES Sections: 4.16.010 Disciplinary Procedures 1.► i lina Procedures-The principal objectives of this policy are t pros perote sonnel teary 4.16.01• �tsc N job conduct and the longer range development of a goal-oriented and productive persotices relating to help ensure compliance with staatfa federal prohibiting of discriminatory employment rights of r sex, race, etc., and to establishprocedural employees. to all permanent employees,except those positions listed in Section Accountantf the � J the This policy appliesp Public Utility District Act, to wit, the Clerk/ex-officio Secretary of the Board, t - Treasurer, and the General Manager. It is recognized that this policy applies to all employees represented by IBEW Local Union 1245 (bargaining unit employees)as well ascertain management iel and confidential employees(non- bargaing it employees by this policy shall In in unit employees). The coverage of non-bargaining un nion 45 toward non-bargaining unor other it manner create any legal a obligation l 1245 shall have no obligation whatsoever to provide a defense, unit employees. IBEW Local provide advice, or otherwise represent non-bargaining unit employees. e of orderliness" 4.16.010.1 Definition. The term discipline will be undersmance. Therefore, disod as meaning "a tciplinary action is such as in a "disciplined team' or in a disciplined performance." ctions to be invoked in the action taken to maintain an orderly way of doing negative actions or san event of unacceptable employee performance. it is well to recognize that they are no substitute for positive or co nstructive actions (such as counseling and goal-setting). ch 4.16.010.2 Grounds for discipline. The following ma be imposed for conduct namples of conduct for lot se'tforth be ow: scipline may be imposed. This list is not exclusive and discipliney I.., Title 4 Page 8 �; II —1 4.16.010.2(A) Fraud in securing employment. 6 4.16.010.2(B) Incompetency. 4.16.010.2(C) Inefficiency. 4.16.010.2(D) Inexcusable neglect of duty. 4.16.010.2(E) Insubordination. J 4.16.010.2(F) Dishonesty. 4.16.010.2(G) Intoxication on duty. " 4.16.010.2(H) Illegal use of narcotics or other controlled substances. „ 4A6.010.2(I) Inexcusable absence without leave. ng criminal he 4.16.010.2(J) Conv+ct+o n of a felony or conviction of a misdemeaoinvolving eyfOSluch as arson, offenses against persons such as homicide and assault, anagainst burglary and theft. of such criminal uilt or a conviction following a plea of nolo contendere,to any A plea or verdict of g Y� of this section. offenses is deemed to be a conviction within the mean►ng 4.16.010.2(K) inappropriate treatment of the public or other employees. 4.16.010.2(L) Willful disobedience. 4.16.010.2(M) Misuse of District property• 4.16.010.2(N) Theft, Tardiness. h is of such 4.16.010.2(0) hours wh+c good behavior either during or outside of duty 4.16.010.2(P) Other failure of g °n and causes discredit to the District or his employment. 1 a serious nature that it reflects directly up ,s a roach to matters requiring 4.16.010.3 Progressive + eq. in general, a supervisor pp disciplinary action will consist of the following: Penally Ac_ Offense None Verbal warning First Title 4 Page 9 Written report in employee's None '{ Second file 0' Written report in employee's Suspension without pay Third file Written report in employee's Discharge Fourth file s t b the supervisor, and the supervisor The seriousness of the offense shall be taken into account y action upon the repetition of the need not necessarily proceed to the next levthe next levl of linary el of disciplinary action,the offense need � s. offense. In order for a supervisor to proceed to 1 not be a repetition of a prior offense. 4.16.010.4 Exce to pr�� ressive enalties - A supervisor need not always follow the ptions progressive penalty schedule contained In Paragraph 3. Instances in which supervisors may proceed directly to the third step include,but are 4.16.010.4(A) regulations, procedures,and/or a not limited to,the following: 1) Serious violation of District safety supervisor's instructions. Instances in which supervisors may proceed directly to the fourth step include, but 1 1 Intentional refusal to follow a supervisor's instructions; gross `I 4.16.010.4(B) Action are not limited to, the following: ) 2) Violations of the basic rules of conduct such as intoxication or theft; 3 insubordination; employees. affecting probationary or temporary a during a - se 4.16.E 10.5 Notice and ost-disci lina review. (To be conducted not more than five days vp 9 a written report and/or a penalty amounting to an employee's loss No review is required in cases involving twelve month period-e.g.,3 days suspension without pay. only a verbal warning. In the case of a written report without any suspension,son without pay, written report 4.16.010.5(A) file. In the case of suspen immediately be placed in the employee's ediatel be placed in the employee's file,the employee shall be suspended immediate y, shall imm Y ee shall not be paid for the period of suspensinot ce he t containing ime athe following:t the discipline is and the employ to ee a written initiated, the supervisor shall deliver to the emp Y 4A6.090.5(A)(1) A notice of the disciplinary action to be taken. -..� 4.16.010.5(A)(2) The reason or reasons for the action. l The charges and the materials upon which the disciplinary action is based, 4.16.010.5(A)(3) including dates and specific incidents. notification that the employee has the right to a post-disciplinary review,and that 4.16.010.5(A)(4) A n procedure contained in Title 14. the employee may initiate a post-disciplinary review of utilizing the Grievanc e Procedure, of the current Memorandum of Understanding between the District and the Union. Title 4 Page 10 'a review by utilizing the grievance _ employee elects to initiate a post-disciplinary the time 4.16.010.5(B) 1f the employ all the terms, including and the District shall be bound by of procedure, then the employee.,. grievance procedure shall be the sole method al'ke a -! limits,of the grievance procedure. The g and non-bargaining unit employees post-disciplinary review for bargaining unit employees To be conducted when imposing a penalty which a during a twelve month period--e.g.,lengthy 4A6.010.6 Notice and pre-disciplinar rLreview. exceeds an employee's loss of more than five days pay suspension or discharge). proposed, the supervisor shall deliver to the 4A6.010.6(A) At the time that the discipline is pro P and place in the employee's file, a written notice containing the following: employee proposed to be taken. 4A6.010.6(A)(1) A notice of the disciplinary action 4.16.010.6(A)(2) The reason or reasons for the action. - on which the proposed disciplinary action is 4.16.010.6(A)(3) The charges and the materials up based, including dates and specific incidents. 4 A notification that the employee has the right to a pre-disciplinary review at which 4.16.0%6(A)( ) Manager of the District(or,if e and to he may respond,either orally or in writing,to the General - to the General Manager,then to three Directors selected by the employee) objects in writing proposed discipline. meet with such persons to discuss the prop a the 5 A notification that: i) If the proposed discipline is suspension without pay, 4A6.010.6(A)( ) period of five working days after lace of a employee shall be suspended immediately media ely shall also be notified of the date,time and to the end the suspension takes effect. place on a working day,during working hours,prior pre-disciplinary review that shall take p agreeable to the said dive day period. The review shall be scheduled at ee shall be suspended immediately of employee employee. ii) If the proposed discipline is discharge,the employe period of five working days after the suspension takes effect. The emlace on but shalt be paid for a p lace of a pre-disciplinary review that shall take p riot to the end of said five day period. The review shall be shall also be notified of the date,time,and p a working day, during working hours, p scheduled at a time and place agreeable to the employee. review may be continued upon the written request 4A 6.010.6(B) The pre-disciplinary the employee for any working days after the end employee,but if continued the District need not pay of the initial five day period. the General Manager, or, if the 10.6 C The pre-disciplinary review shall be conducted by three Directors selected by the 4.16.0 ( ) employee objects in writing to the General Manager, then by p employee. opportunity review,the employee will be provided with an opp Y 4.16 0%6(D) During the pre-disciplinary a erson of his choice. Further, the to respond orally or in writing and to be represented by p have an opportunity to question all materials and individuals Dastrict shall also be entitled employee will h employee's be and to present materials and witnesses on the employ Title 4 Page 11 3 9 to present witnesses concerning the charges contained in the notice to the employee. The review shall be conducted informally, without regard to technical rules of evidence. Either party may transcribe or record the review. 4.16.010.6(E) The General Manager (or three Directors, if applicable) shall issue a written determination as to whether the proposed disciplinary penalty will be sustained, sustained in part { and revoked in part,or revoke d within one day from the date of the pre-disciplinary review. A copy , of the decision shall be delivered to the employee personally or sent by first class mail. 4.1010.E(F In the event the employee does not appear at the pre-disciplinary review, or notifies ) nalty will be sustained and the supervisor will management that he will not appear, the pe immediately proceed to effect the proposed disciplinary action. 4.16.010.6(G)(1) If the proposed discipline is suspension without pay and the penalty is sustained, then the District shall, within the following thirty days, withhold the pay that the employee would pension. If the proposed discipline is suspension otherwi se have earned for the period of the sus i without pay and the penalty is revoked,the employee shall be immediately reinstated with no loss of pay. 4.16.010.6(G)(2) If the proposed discipline is discharge and the penalty is sustained, then the discharge shall become effective immediately upon issuance of the written determination, and the employee shall not receive any pay after the expiration of five working days after the original n suspension took effect. If the proposed discipline is discharge and the penalty is revoked, the employee shall be immediately reinstated with no loss of pay. n 4.16.010.6(H) If the employee is dissatisfied with the determination resulting from the pre- disciplinary review, his recourse shall be to utilize the procedure contained in Title 14, Grievance Pr ocedure of the current Memorandum of Understanding between the District and the Union. If they. , employee utilizes the grievance procedure,then the employee and the District shall be bound by all terms, including the time limits, of the grievance procedure. The grievance procedure shall be the sole method of obtaining a further review of the disciplinary action for bargaining unit and non- 61 bargaining unit employees alike. 4.16.010.7 Removal of written report from employee file _J, If a written report is placed in an employee's file and the employee is not subject to any further disciplinary action of a similar or related nature for a period of two years,then the written report shall be removed from the employee's file. 4.16.010.8 Administration 4.16.010.8(A) Whenever any personnel problem occurs with respect to unsatisfactory performance, — attendance, or any other matter affecting the orderly execution of job requirements,the supervisor is }� expected to cope with the situation promptly, constructively, and in a tactful manner. Avoiding or — putting off needed action of this nature constitutes neglect of supervisory responsibility,undermines overall management effectiveness, and frequently results in a injustice to the employee. , 4.16.010.8(B) Each of the first steps of the disciplinary procedure is to be regarded as a corrective Title 4 Page 12 �„ instruction which, if followed,would make further measure and is to be co vith appropriate steps unnecessary. 4.16.010.8(C) The effect of this policy should be: 4.16.010.8(C)(1) The reduction of involuntary terminations. 4.16.010.8(C)(2) The avoidance or minimizing of misunderstandings between supervisory and non- supervisory personnel. Ensuring that personnel are provided with notice of unacceptable conduct in 4.16.010.8(C)(3) sufficient time to permit self-correction and improvements. position in 4.16.010.8(C)(4) The ensuring that documentation is available to support management's Ithe event of discriminatory charges with respect to sex, race, etc. 4.16.010.8(D) Each written report will contain a description of the events requiring disciplinary o ies are expected to be distributed promptly to those concemed and will include one cop I action. C p to be retained in the employee's personnel file. ` (Resolution 8342) CHAPTER 4.20 GRIEVANCE PROCEDURE 1 Sections: ... 4.20.010 Grievance Procedure grievancewillgnize the procedure as outline4 . 4.20.010 Grievance Procedure-The Board . Inreco connection w h all grievances filed,it shall be the -- Title 14 of the Memorandum of Understanding. policy of the Commission that: 4.20.010.1 Prompt attention be given to all grievances. I 4.20.010.2 There be freedom from reprisal against those filing a grievance. effort be made to resolve the grievance at the lowest possible level within the 4.20.010.3 That eve rY District. (Resolution 8222) CHAPTER 4.22 OVERTIME Title 4 Page 13 Garcetti V. Ceballos 126 S.Ct. 1951 U.S.,2006, May 30,2006(Approx. 25 pages) 126 S.Ct. 1951, 87 Empl, Prac. Dec. P 42,353, 164 L.Ed.2d 689, 74 USLW 4257, 152 Lab.Cas. P 60,203, 24 IER Cases 737, 06 Cal. Daily Op. Serv. 4453, 2006 Daily Journal D.A.R. 6495, 19 Fla. L. Weekly Fed. S 203 Supreme Court of the United States Gil GARCETTI et al., Petitioners, V. Richard CEBALLOS. No. 04-473. Argued March 21, 2006. Decided May 30, 2006. Background: Deputy district attorney filed § 1983 complaint against county and supervisors at district attorneys' office, alleging that he was subject to adverse employment actions in retaliation for engaging in protected speech, that is, for writing a disposition memorandum in which he recommended dismissal of a case on the basis of purported governmental misconduct. The United States District Court for the Central District of California, A. Howard Matz, J., granted defendants' motion for summary judgment, and district attorney appealed. The Court of Appeals for the Ninth Circuit, Reinhardt, Circuit Judge, 361 F.3d 1168, reversed and remanded. Certiorari was granted. Holdings: The United States Supreme Court, Justice Kennedy, held that: W when public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline, and Ln here, district attorney did not speak as a citizen when he wrote his memo and, thus, his speech was not protected by the First Amendment. Reversed and remanded. Justice Stevens filed a dissenting opinion. Justice Souter filed a dissenting opinion in which Justices Stevens and Ginsbur4 joined. Justice Breyer filed a dissenting opinion. West Headnotes >K jO KeyCite Notes 92 Constitutional Law 92V Personal, Civil and Political Rights 921<90 Freedom of Speech and of the Press 92k90.1 Particular Expressions and Limitations 921<90.1f7) Labor Matters 921<90.1(7.2) k. Public Employment. Most Cited Cases A state cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression. U.S.C.A. Const.Amend. 1. K IL KevCite Notes 92 Constitutional Law 92V Personal, Civil and Political Rights 92k90 Freedom of Speech and of the Press 921<90.1 Particular Expressions and Limitations 921<90.1(7) Labor Matters 92k90.i(7.2) k. Public Employment. Most Cited Cases Public employees do not surrender all their First Amendment rights by reason of their employment; rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern. U.S.C.A. Const.Amend. 1. K f 31 KevCite Notes -92 Constitutional Law 92V Personal, Civil and Political Rights 92k90 Freedom of Speech and of the Press 921<90.1 Particular Expressions and Limitations 92k90.i(7) Labor Matters 921<90.1(7.2) k. Public Employment. Most Cited Cases Pursuant to Pickering and its progeny, two inquiries guide interpretation of the constitutional protections accorded to public employee speech: the first requires determining whether the employee spoke as a citizen on a matter of public concern; if not, the employee has no First Amendment cause of action based on the government employer's reaction to the speech, but if the answer is yes, the possibility of a First Amendment claim arises, and the question then becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public. U.S.C.A. Const.Amend. 1. K L41 KevCite Notes -92 Constitutional Law 92V Personal, Civil and Political Rights 92k90 Freedom of Speech and of the Press 92k90.1 Particular Expressions and Limitations 921<90.1(7) Labor Matters 921<90.1(7.2) k. Public Employment. Most Cited Cases Government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations. U.S.C.A. Const.Amend. 1. K [51 KeyCite Notes 92 Constitutional Law 92V Personal, Civil and Political Rights 921<82 Constitutional Guaranties in General 921<82 6 Particular Rights, Limitations, and Applications 92k82(111 k. Public Employees; Military Personnel. Most Cited Cases First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. U.S.C.A. Const.Amend. 1. K f O KeyCite Notes 92 Constitutional Law 92V Personal, Civil and Political Rights 921<90 Freedom of Speech and of the Press 921<90.1 Particular Expressions and Limitations 92k90.1(7) Labor Matters 921<90.1(7.2) k. Public Employment. Most Cited Cases So long as public 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. U.S.C.A. Const.Amend. 1. j71 KeyCite Notes 19 92 Constitutional Law 92V Personal, Civil and Political Rights 921<82 Constitutional Guaranties in General 92k82 6 Particular Rights, Limitations, and Applications 92k82 11 k. Public Employees; Military Personnel. Most Cited Cases While the First Amendment invests public employees with certain rights, it does not empower them to constitutionalize the employee grievance. U.S.C.A. Const.Amend. 1. K LE KeyCite Notes 92 Constitutional Law -92V Personal, Civil and Political Rights 921<90 Freedom of Speech and of the Press 921<90.1 Particular Expressions and Limitations 92k90.1(7) Labor Matters 92k90.1(7.2) k. Public Employment. Most Cited Cases In determining whether a public employee's speech is entitled to constitutional protection, the fact that the employee expresses his views inside his office, rather than publicly, is not dispositive; employees in some cases may receive First Amendment protection for expressions made at work. U.S.C.A. Const.Amend. 1. K M KeyCit� e Notes 92 Constitutional Law -92V Personal, Civil and Political Rights 921<90 Freedom of Speech and of the Press 921<90.1 Particular Expressions and Limitations 921<90.1(7) Labor Matters 192k90.1(7.2) k. Public Employment. Most Cited Cases In determining whether a public employee's speech is entitled to constitutional protection, the fact that the speech concerns the subject matter of the employee's employment is nondispositive; the First Amendment protects some expressions related to the speaker's job. U.S.C.A. Const.Amend. 1. K IO 3 KevCite Notes 92 Constitutional Law 92V Personal, Civil and Political Rights 921<90 Freedom of Speech and of the Press 921<90.1 Particular Expressions and Limitations 921<90.1(7) Labor Matters 921<90.1(7.2) k. Public Employment. Most Cited Cases When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. U.S.C.A. Const.Amend. 1. K it KevCite Notes 92 Constitutional Law 92V Personal, Civil and Political Rights 921<90 Freedom of Speech and of the Press 921<90.1 Particular Expressions and Limitations 921<90.1(7) Labor Matters 921<90.1(7.2) k. Public Employment. Most Cited Cases t(G 131 District and Prosecuting Attorneys KevCite Notes 1311<3 Deputies, Assistants, and Substitutes 1311<3 1 k. Appointment. Most Cited Cases Deputy district attorney did not speak as a citizen when, pursuant to his official duties as a calendar deputy, he wrote a disposition memorandum in which he recommended dismissal of a pending criminal case on the basis of purported governmental misconduct, and so his speech was not protected by the First Amendment; when he went to work and performed the tasks he was paid to perform, district attorney acted as a government employee, not as a citizen, and fact that his duties sometimes required him to speak or write did not prohibit his supervisors from evaluating his performance. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. § 1983. KC r121 KeyCite Notes 92 Constitutional Law 92V Personal, Civil and Political Rights 921<90 Freedom of Speech and of the Press 92k90.1 Particular Expressions and Limitations 92k90.1(7) Labor Matters 921<90.1(7. k. Public Employment. Most Cited Cases When a public employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences, which degree of scrutiny is absent when the employee is simply performing his or her job duties. U.S.C.A. Const.Amend. 1. K r131 KeyCite Notes 92 Constitutional Law 92V Personal, Civil and Political Rights 921<90 Freedom of Speech and of the Press 921<90.1 Particular Expressions and Limitations 92k90.1(7) Labor Matters 921<90.1(7.2) k. Public Employment. Most Cited Cases Public employers may not restrict employees' free speech rights by creating excessively broad job descriptions; the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties, for First Amendment purposes. U.S.C.A. Const.Amend. 1. *1953 Syllabus FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber& Lumber Co. 200 U.S. 321 337 26 S.Ct. 282 50 L.Ed. 499. Respondent Ceballos, a supervising deputy district attorney, was asked by defense counsel to review a case in which, counsel claimed, the affidavit police used to obtain a critical search warrant was inaccurate. Concluding after the review that the affidavit made serious misrepresentations, Ceballos relayed his findings to his supervisors, petitioners here, and followed up with a disposition memorandum recommending dismissal. Petitioners nevertheless proceeded with the prosecution. At a hearing on a defense motion to challenge the warrant, Ceballos recounted his observations about the affidavit, but the trial court rejected the challenge. Claiming that petitioners then retaliated against him for his memo in violation of the First and Fourteenth Amendments, Ceballos filed a 42 U.S.C. � 1983 suit. The District Court granted petitioners summary judgment, ruling, inter alia, that the memo was not protected speech because Ceballos wrote it pursuant to his employment duties. Reversing, the Ninth Circuit held that the memo's allegations were protected under the First Amendment analysis in Pickering v. Board of Ed. of Townshio High School Dist. 205 Will Cty., 391 U.S. 563 88 S.Ct. 1731 20 L.Ed.2d 811, and Connick v. Myers, 461 U.S. 138 103 S.Ct. 1684 75 L.Ed.2d 708. Held: When public employees make statements pursuant to their official duties, they are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Pp. 1957 - 1962. (a) Two inquiries guide interpretation of the constitutional protections accorded public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See Pickering supra at 568 88 S.Ct. 1731. If the answer is no, the employee has no First Amendment cause of action based on the employer's reaction to the speech. See Connick supra at 147 103 S.Ct. 1684. If the answer is yes, the possibility of a First Amendment claim arises. The question becomes whether the government employer had an adequate justification for treating the employee differently from any other member of the general public. See Pickerin4 sera at 568. 88 S.Ct. 1731. This consideration reflects the importance of the relationship between the speaker's expressions and employment. Without a significant degree of control over its employees' words and actions, a government employer would have little chance to provide public services efficiently. Cf. Connick supra at 143 103 S.Ct. 1684. Thus, a government entity has broader discretion to restrict speech when it acts in its employer role, but the restrictions it imposes must be directed at speech that has some potential to affect its operations. On the other hand, a citizen who works for the government is nonetheless still a citizen. The First Amendment limits a public employer's ability to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v Sindermann, 408 U.S. 593 597 92 S.Ct. 2694 33 L.Ed.2d 570. So long as employees are speaking as citizens about matters of public*1954 concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. See, e.g., Connick supra at 147 103 S.Ct. 1684. Pp. 1957 - 1959. (b) Proper application of the Court's precedents leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities. Because Ceballos' memo falls into this category, his allegation of unconstitutional retaliation must fail. The dispositive factor here is not that Ceballos expressed his views inside his office, rather than publicly, see, e.g., Givhan v. Western Line Consol. School Dist., 439 U.S. 410 414 99 S.Ct. 693 58 L.Ed.2d 619 nor that the memo concerned the subject matter of his employment, see, e.g., Pickering, 391 U. S at 573 88 S.Ct. 1731. Rather,the controlling factor is that Ceballos' expressions were made pursuant to his official duties. That consideration distinguishes this case from those in which the First Amendment provides protection against discipline. Ceballos wrote his disposition memo because that is part of what he was employed to do. He did not act as a citizen by writing it. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance. Restricting 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. Cf. Rosenberger v Rector and Visitors of Univ. of Va. 515 U.S. 819 833 115 S.Ct. 2510 132 L.Ed.2d 700. This result is consistent with the Court's prior emphasis on the potential societal value of employee speech and on affording government employers sufficient discretion to manage their operations. Ceballos' proposed contrary rule, adopted by the Ninth Circuit, would commit state and federal 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. This displacement of managerial discretion by judicial supervision finds no support in the Court's precedents. The doctrinal anomaly the Court of Appeals perceived in compelling public employers to tolerate certain employee speech made publicly but not speech made pursuant to an employee's assigned duties misconceives the theoretical underpinnings of this Court's decisions and is unfounded as a practical matter. Pp. 1959 - 1962. (c) Exposing governmental inefficiency and misconduct is a matter of considerable significance, and various measures have been adopted to protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions. These include federal and state whistle-blower protection laws and labor codes and, for government attorneys, rules of conduct and constitutional obligations apart from the First Amendment. However, the Court's precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job. P. 1962. 361 F.3d 1168, reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, THOMAS, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion. SOUTER, I., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. BREYER, J., filed a dissenting opinion. *1955 Dan Himmelfarb, for the United States as amicus curiae, by special leave of the Court, supporting the petitioners. Bonnie E. Robin-Vergeer, for respondent. Cindy S. Lee, Counsel of Record, ]in S. Choi, Franscell, Strickland, Roberts & Lawrence, Glendale, California, Office Of The County Counsel, Raymond G. Fortner, Jr., County Counsel, Philip S. Miller, Assistant County Counsel, Doraine F. Meyer, Senior Deputy County Counsel, Los Angeles, California, Counsel for Petitioners. Cindy S. Lee, Counsel of Record, ]in S. Choi, Franscell, Strickland, Roberts & Lawrence, Glendale, California, Counsel for Petitioners Admitted to the Bar of the Supreme Court on July 17, 1998. Bonnie I Robin-Vergeer, Counsel of Record, Scott L. Nelson, Brian Wolfman, Public Citizen Litigation Group, Washington, DC, Humberto Guizar Moreno, Becerra, Guerrero & Casillas, Montebello, CA, Counsel for Respondent. For U.S. Supreme Court briefs, see:2005 WL 1317482 (Pet.Brief)2005 WL 1801035 (Resp.Brief)2005 WL 2072142 (Reply.Brief) Justice KENNEDY delivered the opinion of the Court. W KIt is well settled that a State cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression." Connick v Myers 461 U.S. 138 142 103 S Ct 1684 75 L Ed 2d 708 (1983). The question presented by the instant case is whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties. I Respondent Richard Ceballos has been employed since 1989 as a deputy district attorney for the Los Angeles County District Attorney's Office. During the period relevant to this case, Ceballos was a calendar deputy in the office's Pomona branch, and in this capacity he exercised certain supervisory responsibilities over other lawyers. In February 2000, a defense attorney contacted Ceballos about a pending criminal case. The defense attorney said there were inaccuracies in an affidavit used to obtain a critical search warrant. The attorney informed Ceballos that he had filed a motion to traverse, or challenge, the warrant, but he also wanted Ceballos to review the case. According to Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases. After examining the affidavit and visiting the location it described, Ceballos determined the affidavit contained serious misrepresentations. The affidavit called a long driveway what Ceballos thought should have been referred to as a separate roadway. Ceballos also questioned the affidavit's statement that tire tracks led from a stripped-down truck to the premises covered by the warrant. His doubts arose from his conclusion that the roadway's composition in some places made it difficult or impossible to leave visible tire tracks. Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County Sheriff's Department, but he did not receive a satisfactory explanation for the perceived inaccuracies. He relayed his findings to his supervisors, ui o t, petitioners memorandum. Carol Najera and Frank Sundstedt, and followed up by preparing n a disposition 9 The memo explained *1956 Ceballos' concerns and recommended dismissal of the case. On March 2, 2000, Ceballos submitted the memo to Sundstedt for his review. A few days later, Ceballos presented Sundstedt with another memo, this one describing a second telephone conversation between Ceballos and the warrant affiant. Based on Ceballos' statements, a meeting was held to discuss the affidavit. Attendees included Ceballos, Sundstedt, and Najera, as well as the warrant affiant and other employees from the sheriff's department. The meeting allegedly became heated, with one lieutenant sharply criticizing Ceballos for his handling of the case. Despite Ceballos' concerns, Sundstedt decided to proceed with the prosecution, pending disposition of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by the defense and recounted his observations about the affidavit, but the trial court rejected the challenge to the warrant. Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory employment actions. The actions included reassignment from his calendar deputy position to a trial deputy position, transfer to another courthouse, and denial of a promotion. Ceballos initiated an employment grievance, but the grievance was denied based on a finding that he had not suffered any retaliation. Unsatisfied, Ceballos sued in the United States District Court for the Central District of California, asserting, as relevant here, a claim under Rev. Stat. § 1979, 42 U.S.C. § 1983. He alleged petitioners violated the First and Fourteenth Amendments by retaliating against him based on his memo of March 2. Petitioners responded that no retaliatory actions were taken against Ceballos and that all the actions of which he complained were explained by legitimate reasons such as staffing needs. They further contended that, in any event, Ceballos' memo was not protected speech under the First Amendment. Petitioners moved for summary judgment, and the District Court granted their motion. Noting that Ceballos wrote his memo pursuant to his employment duties, the court concluded he was not entitled to First Amendment protection for the memo's contents. It held in the alternative that even if Ceballos' speech was constitutionally protected, petitioners had qualified immunity because the rights Ceballos asserted were not clearly established. The Court of Appeals for the Ninth Circuit reversed, holding that"Ceballos's allegations of wrongdoing in the memorandum constitute protected speech under the First Amendment." 361 F 3d 1168 1173 (C.A.9 2004). In reaching its conclusion the court looked to the First Amendment analysis set forth in Pickering v Board of Ed of Township High School Dist 205 will Ctv 391 U.S. 563 88 S Ct 1731 20 L Ed 2d 811 (19681, and Connick 461 U.S. 138 103 S.Ct. 1684 . Connick instructs courts to begin by considering whether the expressions in question were made by the speaker"as a citizen upon matters of public concern." See id. at 146-147 103 S.Ct. 1684. The Court of Appeals determined that Ceballos' memo, which recited what he thought to be governmental misconduct, was"inherently a matter of public concern." 361 F.3d. at 1174. The court did not, however, consider whether the speech was made in Ceballos' capacity as a citizen. Rather, it relied on Circuit precedent rejecting the idea that"a public employee's speech is deprived of First Amendment protection whenever those views are expressed, to government workers or others, pursuant to an employment responsibility." Id. at 1174-1175 (citing cases including *1957 Roth v. Veteran's Admin. of Govt. of United States 856 F.2d 1401 (C.A.9 1988)). Having concluded that Ceballos' memo satisfied the public-concern requirement, the Court of Appeals proceeded to balance Ceballos' interest in his speech against his supervisors' interest in responding to it. See Pickering supra at 568 88 S.Ct._ 1731. The court struck the balance in Ceballos' favor, noting that petitioners "failed even to suggest disruption or inefficiency in the workings of the District Attorney's Office" as a result of the memo. See 361 F.3d at 1180. The court further concluded that Ceballos' First Amendment rights were clearly established and that petitioners' actions were not objectively reasonable. See id. at 1181-1182. Judge O'Scannlain specially concurred. Agreeing that the panel's decision was compelled by Circuit precedent, he nevertheless concluded Circuit law should be revisited and overruled. See id at 1185_ Judge O'Scannlain emphasized the distinction "between speech offered by a public employee acting as an employee carrying out his or her ordinary job duties and that spoken by an employee acting as a citizen expressing his or her personal views on disputed matters of public import.': Id., at 1187. In his view, "when public employees speak in the course of carrying out their routine, required employment obligations, they have no personal interest in the content of that speech that gives rise to a First Amendment right." Id., at 1189. We granted certiorari, 543 U S 1186 125 S.Ct- 1395 161 L Ed 2d 188 (2005), and we now reverse. II K f 2] As the Court's decisions have noted, for many years "the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment-including those which restricted the exercise of constitutional rights." Connick 461 U.S. at 143 103 S.Ct. 1684. That dogma has been qualified in important respects. See id. at 144-145 103 S.Ct. 1684. The Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern. See, e.g., Pickering supra at 568 88 S Ct. 1731; Connick supra at 147 103 S.Ct. 1684: Rankin v McPherson 483 U.S. 378 384 107 S.Ct. 2891 97 L.Ed.2d 315 (1987 ; United States v Treasury Employees 513 U.S. 454 466 115 S.Ct. 1003 130 L.Ed.2d 964.(1995). Pickering provides a useful starting point in explaining the Court's doctrine. There the relevant speech was a teacher's letter to a local newspaper addressing issues including the funding policies of his school board. 391 U.S. at 566 88 S.Ct. 1731. "The problem in any case," the Court stated, "is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id, at 568 88 S.Ct. 1731. The Court found the teacher's speech "neither [was] shown nor can be presumed to have in any way either impeded the teacher's proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally." Id. at 572-573 88 S.Ct. 1731 (footnote omitted). Thus, the Court concluded that "the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution *I958 by any member of the general public." Id at 573. 88 S,Ct. 1731. 131 19 j41 5 Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the constitutional protections accorded to public employee speech. The first requires determining whether the employee spoke as a citizen on a matter of public concern. See id. at 568 88 S.Ct. 1731. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. See Connick supra at 147, 103 S.Ct. 1684. If the answer is yes, then the possibility of a First Amendment claim arises. The question becomes whether the relevant government entity had an adequate justification for treating the employee differently from any other member of the general public. See Pickering 391 U.S., at 568 88 S.Ct. 1731. This consideration reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations. To be sure, conducting these inquiries sometimes has proved difficult. This is the necessary product of"the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors ••• to furnish grounds for dismissal." Id at 569., 88 S.Ct. 1731 The Court's overarching objectives, though, are evident. When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. See, e.g., Waters v Churchill 511 U.S. 661 671, 114 S Ct 1878 128 L Ed 2d 686 (1994) (plurality opinion) ("[T]he government as employer indeed has far broader powers than does the government as sovereign"). Government 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. Cf. Connick supra at 143, 103 S.Ct. 1684 ("[G]overnment offices could not function if every employment decision became a constitutional matter"). Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions. KC 151 ,[61 At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. See Perry v Sindermann 408 U.S. 593 597, 92 S Ct 2694 33 L Ed.2d 570 (1972). So 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. See, e.g., Connick supra at 147, 103 S.Ct. 1684 ("Our responsibility is to ensure that citizens are not deprived of fundamental rights by virtue of working for the government"). The Court's employee-speech jurisprudence protects, of course, the constitutional rights of public employees. Yet the First Amendment interests at stake extend beyond the individual speaker. The Court has acknowledged the importance of promoting the public's interest in receiving the well-informed views of government employees engaging in civic discussion. Pickering again provides an instructive example. The Court characterized its *1959 holding as rejecting the attempt of school administrators to "limi[t] teachers' opportunities to contribute to public debate." 391 U.S. at 573, 88 S.Ct. 1731.. It also noted that teachers are "the members of a community most likely to have informed and definite opinions" about school expenditures. Id at 572, 88 S.Ct. 1731. The Court's approach acknowledged the necessity for informed, vibrant dialogue in a democratic society. It suggested, in addition, that widespread costs may arise when dialogue is repressed. The Court's more recent cases have expressed similar concerns. See, e.g., San Diego v Roe, 543 U.S. 77 82 125 S.Ct. 521 160 L.Ed.2d 410 (2004) (per curiam) ("Were [public employees] not able to speak on [the operation of their employers], the community would be deprived of informed opinions on important public issues. The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it" (citation omitted)); cf. Treasury Employees, 513 U.S., at 470, 115 S.Ct. 1003 ("The large-scale disincentive to Government employees' expression also imposes a significant burden on the public's right to read and hear what the employees would otherwise have written and said"). KG f 71 The Court's decisions, then, have sought both to promote the individual and societal interests that are served when employees speak as citizens on matters of public concern and to respect the needs of government employers attempting to perform their important public functions. See, e.g., Rankin 483 U.S. at 384, 107 S.Ct._2891 (recognizing "the dual role of the public employer as a provider of public services and as a government entity operating under the constraints of the First Amendment"). Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to "constitutionalize the employee grievance." Connick 461 U.S. at 154, 103 S.Ct. 1684. III K [81 With these principles in mind we turn to the instant case. Respondent Ceballos believed the affidavit used to obtain a search warrant contained serious misrepresentations. He conveyed his opinion and recommendation in a memo to his supervisor. That Ceballos expressed his views inside his office, rather than publicly, is not dispositive. Employees in some cases may receive First Amendment protection for expressions made at work. See, e.g., Givhan v Western Line Consol. School Dist., 439_ U.S. 410 414 99 S.Ct. 693 58 L.Ed.2d 619 (1979). Many citizens do much of their talking inside their respective workplaces, and it would not serve the goal of treating public employees like "any member of the general public," Pickering 391 U.S. at 573, 88 S.Ct. 1731, to hold that all speech within the office is automatically exposed to restriction. 'KC M The memo concerned the subject matter of Ceballos' employment, but this, too, is nondispositive. The First Amendment protects some expressions related to the speaker's job. See, e.g., ibid.; Givhan supra at 414. 99 S.Ct. 693. As the Court noted in Pickering: "Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal." 391 U.S., at 572. 88 S.Ct. 1731. The same is true of many other categories of public employees. 5510 11 The controlling factor in Ceballos' case is that his expressions were *1960 made pursuant to his duties as a calendar deputy. See Brief for Respondent 4 ("Ceballos does not dispute that he prepared the memorandum 'pursuant to his duties as a prosecutor' "). That consideration-the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case- distinguishes Ceballos' case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline. Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do. It is immaterial whether he experienced some personal gratification from writing the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is that the memo was written pursuant to Ceballos' official duties. Restricting 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. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 833 115 S Ct 2510 132 L.Ed.2d 700 (1995) ("[W]hen the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes"). Contrast, for example, the expressions made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day. Ceballos did not act as a citizen when he went about conducting his daily professional activities, such as supervising attorneys, investigating charges, and preparing filings. In the same way he did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a government employee. The fact that his duties sometimes required him to speak or write does not mean his supervisors were prohibited from evaluating his performance. This result is consistent with our precedents' attention to the potential societal value of employee speech. See supra, at 1958 - 1959. Refusing to recognize First Amendment claims based on government employees' work product does not prevent them from participating in public debate. The employees retain the prospect of constitutional protection for their contributions to the civic discourse. This prospect of protection, however, does not invest them with a right to perform their jobs however they see fit. Our holding likewise is supported by the emphasis of our precedents on affording government employers sufficient discretion to manage their operations. Employers have heightened interests in controlling speech made by an employee in his or her professional capacity. Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission. Ceballos' memo is illustrative. It demanded the attention of his supervisors and led to a heated meeting with employees from the sheriff's department. If Ceballos' superiors thought his memo was inflammatory or *1961 misguided, they had the authority to take proper corrective action. 1`121 KCCeballos' proposed contrary rule, adopted by the Court of Appeals, would commit state and federal 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. This displacement of managerial discretion by judicial supervision finds no support in our precedents. When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers. The Court of Appeals based its holding in part on what it perceived as a doctrinal anomaly. The court suggested it would be inconsistent to compel public employers to tolerate certain employee speech made publicly but not speech made pursuant to an employee's assigned duties. See 361 F.3d. at 1176. This objection misconceives the theoretical underpinnings of our decisions. Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment 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, see Pickering, 391 U.S. 563 88 S.Ct. 1731, or discussing politics with a co-worker, see Rankin 483 U.S. 378, 107_S.Ct. 2891. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees. The Court of Appeals' concern also is unfounded as a practical matter. The perceived anomaly, it should be noted, is limited in scope: It relates only to the expressions an employee makes pursuant to his or her official responsibilities, not to statements or complaints (such as those at issue in cases like Pickering and Connick that are made outside the duties of employment. If, moreover, 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. Proper application of our precedents thus leads to the conclusion that the First Amendment does not prohibit managerial discipline based on an employee's expressions made pursuant to official responsibilities. Because Ceballos' memo falls into this category, his allegation of unconstitutional retaliation must fail. r131 KCTwo final points warrant mentioning. First, as indicated above, the parties in this case do not dispute that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no occasion to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate. We reject, however, the suggestion that employers can restrict employees' rights by creating excessively broad job descriptions. See post, at 1965, n. 2 (SOUTER, I., dissenting). The proper inquiry is a practical one. *1962 Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes. Second, Justice SOUTER suggests today's decision may have important ramifications for academic freedom, at least as a constitutional value. See post, at 1969 - 1970. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching. IV Exposing governmental inefficiency and misconduct is a matter of considerable significance. As the Court noted in Connick, public employers should, "as a matter of good judgment," be "receptive to constructive criticism offered by their employees." 461 U.S., at 149. 103 S.Ct. 1684. The dictates of sound judgment are reinforced by the powerful network of legislative enactments-such as whistle-blower protection laws and labor codes-available to those who seek to expose wrongdoing. See, e.g., 5 U.S.C. q 2302(b)(8); Cal. Govt.Code Ann. § 8547.8 (West 2005); Cal. Lab.Code Ann. § 1102.5 (West Supp.2006). Cases involving government attorneys implicate additional safeguards in the form of, for example, rules of conduct and constitutional obligations apart from the First Amendment. See, e.g., Cal Rule Prof. Conduct 5-110 (2005) ( "A member in government service shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause"); Brady v Maryland 373 U.S. 83 83 S Ct 1194 10 L Ed.2d 215 (1963). These imperatives, as well as obligations arising from any other applicable constitutional provisions and mandates of the criminal and civil laws, protect employees and provide checks on supervisors who would order unlawful or otherwise inappropriate actions. We reject, however, the notion that the First Amendment shields from discipline the expressions employees make pursuant to their professional duties. Our precedents do not support the existence of a constitutional cause of action behind every statement a public employee makes in the course of doing his or her job. The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. Justice STEVENS, dissenting. The proper answer to the question "whether the First Amendment protects a government employee from discipline based on speech made pursuant to the employee's official duties," ante, at 1955, is "Sometimes," not"Never." Of course a supervisor may take corrective action when such speech is"inflammatory or misguided," ante, at 1960 - 1961. But what if it is just unwelcome speech because it reveals facts that the supervisor would rather not have anyone else discover? FN* See, e.g., Branton v Dallas 272 F 3d 730 (C.A.5 2001) (police internal investigator demoted by police chief after bringing the false testimony of a fellow officer to the attention of a city official); Miller v Jones 444 F 3d 929 936 (C.A.7 2006) (police officer demoted after opposing the police chief's attempt to "us[e] his official position to coerce a financially independent organization into a potentially ruinous merger"); Delgado v. Jones 282 F 3d 511 (C.A.7 2002) (police officer sanctioned for reporting criminal activity that implicated a local political figure who was a good friend of the police chief); Herts v. Smith 345 F 3d 581 (C.A.8 20031 (school district official's contract was not renewed after she gave frank testimony about the district's desegregation efforts); Kincade v. Blue Springs 64 F 3d 389 (C.A.8 1995) (engineer fired after reporting to his supervisors that contractors were failing to complete dam-related projects and that the resulting dam might be structurally unstable); Fox v District of Columbia 83 F.3d_1491, 1494 (C.A.D.C.1996) (D.C. Lottery Board security officer fired after informing the police about a theft made possible by "rather drastic managerial ineptitude"). *1963 As Justice SOUTER explains, public 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 employment is quite wrong. Over a quarter of a century has passed since then-Justice Rehnquist, writing for a unanimous Court, rejected "the conclusion that a public employee forfeits his protection against governmental abridgment of freedom of speech if he decides to express his views privately rather than publicly." Givhan v. Western Line Consol. School Dist. 439 U.S. 410 414 99 S.Ct. 693 58 L Ed 2d 619 (1979). We had no difficulty recognizing that the First Amendment applied when Bessie Givhan, an English teacher, raised concerns about the school's racist employment practices to the principal. See id at 413-416. 99 S.Ct. 693. Our silence as to whether or not her speech was made pursuant to her job duties demonstrates that the point was immaterial. That is equally true today, for it is senseless to let constitutional protection for exactly the same words hinge on whether they fall within a job description. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors. While today's novel conclusion to the contrary may not be "inflammatory," for the reasons stated in Justice SOUTER's dissenting opinion it is surely "misguided." Justice SOUTER, with whom Justice STEVENS and Justice GINSBURG join, dissenting. The Court holds that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."Ante, at 1960. I respectfully dissent. I agree with the majority that a government employer has substantial interests in effectuating its chosen policy and objectives, and in demanding competence, honesty, and judgment from employees who speak for it in doing their work. But I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government's stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection. I Open speech by a private citizen on a matter of public importance lies at the heart of expression subject to protection by the First Amendment. See, e.g., Schenck v. Pro- Choice Network of Western N. Y. 519 U.S. 357 377 117 S.Ct. 855 137 L.Ed.2d 1 (1997). At the other extreme,*1964 a statement by a government employee complaining about nothing beyond treatment under personnel rules raises no greater claim to constitutional protection against retaliatory response than the remarks of a private employee. See Connick v. Myers, 461 U.S. 138 147 103 S.Ct. 1684 75 L.Ed.2d 708 (1983). In between these points lies a public employee's speech unwelcome to the government but on a significant public issue. Such an employee speaking as a citizen, that is, with a citizen's interest, is protected from reprisal unless the statements are too damaging to the government's capacity to conduct public business to be justified by any individual or public benefit thought to flow from the statements. Pickering v. Board of Ed. of Township High School Dist 205 Will Ctv 391 U.S. 563, 568 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Entitlement to protection is thus not absolute. This significant, albeit qualified, protection of public employees who irritate the government is understood to flow from the First Amendment, in part, because a government paycheck does nothing to eliminate the value to an individual of speaking on public matters, and there is no good reason for categorically discounting a speaker's interest in commenting on a matter of public concern just because the government employs him. Still, the First Amendment safeguard rests on something more, being the value to the public of receiving the opinions and information that a public employee may disclose. "Government employees are often in the best position to know what ails the agencies for which they work." Waters v Churchill 511 U.S. 661 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994). The reason that protection of employee speech is qualified is that it can distract co- workers and supervisors from their tasks at hand and thwart the implementation of legitimate policy, the risks of which grow greater the closer the employee's speech gets to commenting on his own workplace and responsibilities. It is one thing for an office clerk to say there is waste in government and quite another to charge that his own department pays full-time salaries to part-time workers. Even so, we have regarded eligibility for protection by Pickering balancing as the proper approach when an employee speaks critically about the administration of his own government employer. In Givhan v. _Western Line Consol School Dist 439 U.S. 410 99 S.Ct. 693 58 L.Ed.2d 619 (1979), we followed Pickering when a teacher was fired for complaining to a superior about the racial composition of the school's administrative, cafeteria, and library staffs, 439 U.S., at 413-414 99 S.Ct. 693, and the same point was clear in Madison Joint School Dist. No. 8 v. Wisconsin Em to ment Relations Comm'n 429 U.S. 167 97 S.Ct. 421 50 L.Ed.2d 376 (1976). That case was decided, in part, with reference to the Pickering framework, and the Court there held that a schoolteacher speaking out on behalf of himself and others at a public school board meeting could not be penalized for criticizing pending collective- bargaining negotiations affecting professional employment. Madison noted that the teacher "addressed the school board not merely as one of its employees but also as a concerned citizen, seeking to express his views on an important decision of his government." 429 U.S., at 174-175, 97 S.Ct. 421. In each case, the Court realized that a public employee can wear a citizen's hat when speaking on subjects closely tied to the employee's own job, and Givhan stands for the same conclusion even when the speech is not addressed to the public at large. Cf. Pegram v Herdrich 530 U.S. 211, 225, 120 S.Ct. 2143 147 L.Ed.2d 164 (2000) (recognizing that, factually, a *1965 trustee under the Employee Retirement Income Security Act of 1974 can both act as ERISA fiduciary and act on behalf of the employer). The difference between a case like Givhan and this one is that the subject of Ceballos's speech fell within the scope of his job responsibilities, whereas choosing personnel was not what the teacher was hired to do. The effect of the majority's constitutional line between these two cases, then, is that a Givhan schoolteacher is protected when complaining to the principal about hiring policy, but a school personnel officer would not be if he protested that the principal disapproved of hiring minority job applicants. This is an odd place to draw a distinction, and while necessary judicial line-drawing sometimes looks arbitrary, any distinction obliges a court to justify its choice. Here, there is no adequate justification for the majority's line categorically denying Pickering protection to any speech uttered "pursuant to ••• official duties," ante, at 1960. FN1. It seems stranger still in light of the majority's concession of some First Amendment 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. Ante, at 1961. As all agree, the qualified speech protection embodied in Pickering balancing resolves the tension between individual and public interests in the speech, on the one hand, and the government's interest in operating efficiently without distraction or embarrassment by talkative or headline-grabbing employees. The need for a balance hardly disappears when an employee speaks on matters his job requires him to address; rather, it seems obvious that the individual and public value of such speech is no less, and may well be greater, when the employee speaks pursuant to his duties in addressing a subject he knows intimately for the very reason that it falls within his duties. FN2. I do not say the value of speech "pursuant to ••• duties" will always be greater, because I am pessimistic enough to expect that one response to the Court's holding will be moves by government employers to expand stated job descriptions to include more official duties and so exclude even some currently protectable speech from First Amendment purview. Now that the government can freely penalize the school personnel officer for criticizing the principal because speech on the subject falls within the personnel officer's job responsibilities, the government may well try to limit the English teacher's options by the simple expedient of defining teachers' job responsibilities expansively, investing them with a general obligation to ensure sound administration of the school. Hence today's rule presents the regrettable prospect that protection under Pickering v. Board of Ed of Township High School Dist 205 Will Ctv 391 U.S. 563, 88 S.Ct. 1731, 20 L Ed.2d 811 (19681, may be diminished by expansive statements of employment duties. The majority's response, that the enquiry to determine duties is a "practical one," ante, at 1961, does not alleviate this concern. It sets out a standard that will not discourage government employers from setting duties expansively, but will engender litigation to decide which stated duties were actual and which were merely formal. As for the importance of such speech to the individual, it stands to reason that a citizen may well place a very high value on a right to speak on the public issues he decides to make the subject of his work day after day. Would anyone doubt that a school principal evaluating the performance of teachers for promotion or pay adjustment retains a citizen's interest in addressing the quality of teaching in the schools? (Still, the majority indicates he could be fired without First Amendment recourse for fair but unfavorable comment when the teacher under review is the superintendent's daughter.) Would anyone deny that a prosecutor like Richard Ceballos may claim the interest of any citizen in *1966 speaking out against a rogue law enforcement officer, simply because his job requires him to express a judgment about the officer's performance? (But the majority says the First Amendment gives Ceballos no protection, even if his judgment in this case was sound and appropriately expressed.) Indeed, the very idea of categorically separating the citizen's interest from the employee's interest ignores the fact that the ranks of public service include those who share the poets object ••• to unite [m]y avocation and my vocation;" FN3 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." There is no question that public employees speaking on matters they are obliged to address would generally place a high value on a right to speak, as any responsible citizen would. FN3. R. Frost, Two Tramps in Mud Time, Collected Poems, Prose, & Plays 251, 252 (R. Poirier & M. Richardson eds.1995). FN4. Not to put too fine a point on it, the Human Resources Division of the Los Angeles County District Attorney's Office, Ceballos's employer, is telling anyone who will listen that its work "provides the personal satisfaction and fulfillment that comes with knowing you are contributing essential services to the citizens of Los Angeles County." Career Opportunities, http://da.co.1a.ca.us/hr/default.htm (all Internet materials as visited May 25, 2006, and available in Clerk of Court's case file). The United States expresses the same interest in identifying the individual ideals of a citizen with its employees' obligations to the Government. See Brief as Amicus Curiae 25 (stating that public employees are motivated to perform their duties "to serve the public ). Right now, for example, the U.S. Food and Drug Administration is appealing to physicians, scientists, and statisticians to work in the Center for Drug Evaluation and Research, with the message that they can give back to [their] community, state, and country by making a difference in the lives of Americans everywhere." Career Opportunities at CDER: You Can Make a Difference, http:// www.fda.gov/cder/ career/default.htm. Indeed, the Congress of the United States, by concurrent resolution, has previously expressly endorsed respect for a citizen's obligations as the prime responsibility of Government employees: "Any person in Government Service should: ••• [p]ut loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department," and shall "[e]xpose corruption wherever discovered," Code of Ethics for Government Service, H. Con. Res. 175, 85th Cong., 2d Sess., 72 Stat. B12. Display of this Code in Government buildings was once required by law, 94 Stat. 855; this obligation has been repealed, Office of Government Ethics Authorization Act of 1996, Pub L 104-179 § 4 110 Stat. 1566. Nor is there any reason to raise the counterintuitive question whether the public interest in hearing informed employees evaporates when they speak as required on some subject at the core of their jobs. Two Terms ago, we recalled the public value that the Pickering Court perceived in the speech of public employees as a class: "Underlying the decision in Pickering is the recognition 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. The interest at stake is as much the public's interest in receiving informed opinion as it is the employee's own right to disseminate it." San Diego v. Roe, 543 U.S. 77 82 125 S Ct 521 160 L.Ed.2d 410 (2004) (per curiam) (citation omitted). 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 *1967 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 constitutional rights he is sworn to protect. (The majority, however, places all these speakers beyond the reach of First Amendment protection against retaliation.) Nothing, then, accountable on the individual and public side of the Pickering balance changes when an employee speaks "pursuant" to public duties. On the side of the government employer, however, something is different, and to this extent, I agree with the majority of the Court. The majority is rightly concerned that the employee who speaks out on matters subject to comment in doing his own work has the greater leverage to create office uproars and fracture the government's authority to set policy to be carried out coherently through the ranks. "Official communications have official consequences, creating a need for substantive consistency and clarity. Supervisors must ensure that their employees' official communications are accurate, demonstrate sound judgment, and promote the employer's mission," ante, at 1960. Up to a point, then, the majority makes good points: government needs civility in the workplace, consistency in policy, and honesty and competence in public service. But why do the majority's concerns, which we all share, require categorical exclusion of First Amendment protection against any official retaliation for things said on the job? Is it not possible to respect the unchallenged individual and public interests in the speech through a Pickering balance without drawing the strange line I mentioned before, supra, at 1956 - 1957? This is, to be sure, a matter of judgment, but the judgment has to account for the undoubted value of speech to those, and by those, whose specific public job responsibilities bring them face to face with wrongdoing and incompetence in government, who refuse to avert their eyes and shut their mouths. And it has to account for the need actually to disrupt government if its officials are corrupt or dangerously incompetent. See n. 4, supra. It is thus no adequate justification for the suppression of potentially valuable information simply to recognize that the government has a huge interest in managing its employees and preventing the occasionally irresponsible one from turning his job into a bully pulpit. Even there, the lesson of Pickering (and the object of most constitutional adjudication) is still to the point: when constitutionally significant interests clash, resist the demand for winner-take-all; try to make adjustments that serve all of the values at stake. Two reasons in particular make me think an adjustment using the basic Pickering balancing scheme is perfectly feasible here. First, the extent of the government's legitimate authority over subjects of speech required by a public job can be recognized in advance by setting in effect a minimum heft for comments with any claim to outweigh it. Thus, the risks to the government are great enough for us to hold from the outset that an employee commenting on subjects in the course of duties should not prevail on balance unless he speaks on a matter of unusual importance and satisfies high standards of responsibility in the way he does it. The examples I have already given indicate the eligible subject matter, and it is fair to say 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. If promulgation of this standard should fail to discourage meritless actions premised on 42 U.S.C. § 1983 (or *1968 Bivens v. Six Unknown Fed Narcotics Agents 403 U.S. 388 91 S Ct 1999 29 L.Ed.2d 619 (1971)) before they get filed, the standard itself would sift them out at the summary-judgment stage.F" FN5. As I also said, a public employer is entitled (and obliged) to impose high standards of honesty, accuracy, and judgment on employees who speak in doing their work. These criteria are not, however, likely to discourage meritless litigation or provide a handle for summary judgment. The employee who has spoken out, for example, is unlikely to blame himself for prior bad judgment before he sues for retaliation. My second reason for adapting Pickering to the circumstances at hand is the experience in Circuits that have recognized claims like Ceballos's here. First Amendment protection less circumscribed than what I would recognize has been available in the Ninth Circuit for over 17 years, and neither there nor in other Circuits that accept claims like this one has there been a debilitating flood of litigation. There has indeed been some: as represented by Ceballos's lawyer at oral argument, each year over the last five years, approximately 70 cases in the different Courts of Appeals and approximately 100 in the various District Courts. Tr. of Oral Arg. 58-59. But even these figures reflect a readiness to litigate that might well have been cooled by my view about the importance required before Pickering treatment is in order. For that matter, the majority's position comes with no guarantee against factbound litigation over whether a public employee's statements were made "pursuant to .•• official duties, ante, at 1960. In fact, the majority invites such litigation by describing the enquiry as a "practical one," ante, at 1961, apparently based on the totality of employment circumstances. FN6 See n. 2, supra. Are prosecutors' discretionary statements about cases addressed to the press on the courthouse steps made "pursuant to their official duties"? Are government nuclear scientists' complaints to their supervisors about a colleague's improper handling of radioactive materials made "pursuant" to duties? FN6. According to the majority's logic, the litigation it encourages would have the unfortunate result of"demand[ing] permanent judicial intervention in the conduct of governmental operations," ante, at 1961. II The majority seeks support in two lines of argument extraneous to Pickering doctrine. The one turns on a fallacious reading of cases on government speech, the other on a mistaken assessment of protection available under whistle-blower statutes. A The majority accepts the fallacy propounded by the county petitioners and the Federal Government as amicus that any statement made within the scope of public employment is (or should be treated as) the government's own speech, see ante, at 1960, and should thus be differentiated as a matter of law from the personal statements the First Amendment protects, see Broadrick v. Oklahoma 413 U.S. 601 610 93 S.Ct. 2908 37 L Ed 2d 830 (1973). The majority invokes the interpretation set out in Rosenberger v. Rector and Visitors of Univ. of Va. 515 U.S. 819 115 S.Ct. 2510 132 L.Ed.2d 700 1995 , of Rust v Sullivan 500 U.S. 173 111 SM. 1759 114 L Ed.2d 233 (19911, which held there was no infringement of the speech rights of Title X funds recipients and their staffs when the Government forbade any on-the-job counseling in favor of abortion as a method of family planning, id. at 192-200 111 SM. 1759. We have read Rust to mean that "when the government appropriates*1969 public funds to promote a particular policy of its own it is entitled to say what it wishes." Rosenberger, supra, at 833, 115 S.Ct. 2510. The key to understanding the difference between this case and Rust lies in the terms of the respective employees' jobs and, in particular, the extent to which those terms require espousal of a substantive position prescribed by the government in advance. Some public employees are hired to "promote a particular policy" by broadcasting a particular message set by the government, but not everyone working for the government, after all, is hired to speak from a government manifesto. See Legal Services Corporation v. Velazquez 531 U.S. 533 542 121 S.Ct. 1043 149 L Ed.2d 63 (2001). There is no claim or indication that Ceballos was hired to perform such a speaking assignment. He was paid to enforce the law by constitutional action: to exercise the county government's prosecutorial power by acting honestly, competently, and constitutionally. The only sense in which his position apparently required him to hew to a substantive message was at the relatively abstract point of favoring respect for law and its evenhanded enforcement, subjects that are not at the level of controversy in this case and were not in Rust. Unlike the doctors in Rust, Ceballos was not paid to advance one specific policy among those legitimately available, defined by a specific message or limited by a particular message forbidden. The county government's interest in his speech cannot therefore be equated with the terms of a specific, prescribed, or forbidden substantive position comparable to the Federal Government's interest in Rust, and Rust is no authority for the notion that government may exercise plenary control over every comment made by a public employee in doing his job. It is not, of course, that the district attorney lacked interest of a high order in what Ceballos might say. If his speech undercut effective, lawful prosecution, there would have been every reason to rein him in or fire him; a statement that created needless tension among law enforcement agencies would be a fair subject of concern, and the same would be true of inaccurate statements or false ones made in the course of doing his work. But these interests on the government's part are entirely distinct from any claim that Ceballos's speech was government speech with a preset or proscribed content as exemplified in Rust. Nor did the county petitioners here even make such a claim in their answer to Ceballos's complaint, see n. 13, infra. The fallacy of the majority's reliance on Rosenberger's understanding of Rust doctrine, moreover, portends a bloated notion of controllable government speech going well beyond the circumstances of this case. Consider the breadth of the new formulation: "Restricting 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."Ante, at 1960. This ostensible domain beyond the pale of the First Amendment is spacious enough to include even the teaching of a public university professor, and I have to hope that today's majority does not mean to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write "pursuant to official duties." See Grutter v. Bollinger, 539 U.S. 306 329 123 S.Ct. 2325 156 L.Ed.2d 304 (2003) ("We have long recognized that, given the *1970 important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition"); Ke ishian v. Board of Regents of Univ. of State of N. Y. 385 U.S. 589 603 87 S.Ct. 675 17 L Ed 2d 629 (1967) ("Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. `The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools' " (quoting Shelton v Tucker, 364 U.S. 479, 487, 81 S.Ct. 247 5 L Ed 2d 231 (1960))); Sweezy v New Hampshire 354 U.S. 234, 250, 77 S.Ct. 1203 1 L Ed 2d 1311 (1957) (a governmental enquiry into the contents of a scholar's lectures at a state university "unquestionably was an invasion of [his] liberties in the areas of academic freedom and political expression-areas in which government should be extremely reticent to tread"). B The majority's second argument for its disputed limitation of Pickering doctrine is that the First Amendment has little or no work to do here owing to an assertedly comprehensive complement of state and national statutes protecting government whistle-blowers from vindictive bosses. See ante, at 1961 - 1962. But even if I close my eyes to the tenet that " `[t]he applicability of a provision of the Constitution has never depended on the vagaries of state or federal law,' " Board of Comm'rs Wabaunsee Cty. v Umbehr, 518 U.S. 668 680 116 S Ct 2342 135 L Ed 2d 843 (1996), the majority's counsel to rest easy fails on its own terms. FN7. Even though this Court has recognized that 42 U.S.C. § 1983 "does not authorize a suit for every alleged violation of federal law," Livadas v Bradshaw, 512 U.S. 107, 132, 114 S.Ct. 2068 129 L Ed 2d 93 (1994), the rule is that " �1983 remains a generally and presumptively available remedy for claimed violations of federal law," id. at 133. 114 S.Ct. 2068. Individual enforcement under § 1983 is rendered unavailable for alleged violations of federal law when the underlying statutory provision is part of a federal statutory scheme clearly incompatible with individual enforcement under 1983. See Rancho Palos Verdes v. Abrams 544 U.S. 113 119-120 125 S.Ct. 1453 161 L.Ed.2d 316 (2005). To begin with, speech addressing official wrongdoing may well fall outside protected whistle-blowing, defined in the classic sense of exposing an official's fault to a third party or to the public; the teacher in Givhan, for example, who raised the issue of unconstitutional hiring bias, would not have qualified as that sort of whistle-blower, for she was fired after a private conversation with the school principal. In any event, the combined variants of statutory whistle-blower definitions and protections add up to a patchwork, not a showing that worries may be remitted to legislatures for relief. See D. Westman & N. Modesitt, Whistleblowing: Law of Retaliatory Discharge 67-75, 281-307 (2d ed.2004). Some state statutes protect all government workers, including the employees of municipalities and other subdivisions; FFN8 others stop at state employees.` Some limit protection*1971 to employees who tell their bosses before they speak out; FN10 others forbid bosses from imposing any requirement to warn. E-�111 As for the federal Whistleblower Protection Act of 1989, 5 U.S.C. 1213 et seq., current case law requires an employee complaining of retaliation to show " 'irrefragable proof' " that the person criticized was not acting in good faith and in compliance with the law, see Lachance v. White 174 F 3d 1378 1381 (C A.Fed.1999), cert. denied, 528 U.S. 1153, 120 S.Ct. 1157 145 L Ed 2d 1069 (2000). And federal employees have been held to have no protection for disclosures made to immediate supervisors, see Willis v Department of Agriculture 141 F 3d 1139 1143 (C A Fed.1998); Horton v Department of Navy, 66 F 3d 279 282 (C A Fed.1995), cert. denied, 516 U.S. 1176 116 S.Ct. 1271 134 L.Ed.2d 218 (1996), or for statements of facts publicly known already, see Francisco v. Office of Personnel Management 295 F 3d 1310 1314 (C.A.Fed.2002). Most significantly, federal employees have been held to be unprotected for statements made in connection with normal employment duties, Huffman v Office of Personnel Management, 263 F.3d 1341, 1352 (C A Fed.2001), the very speech that the majority says will be covered by "the powerful network of legislative enactments ••• available to those who seek to expose wrongdoing," ante, at 1962.FN12 My point is not to disparage particular statutes or speak here to the merits of interpretations by other federal courts, but merely to show the current understanding of statutory protection: individuals doing the same sorts of governmental jobs and saying the same sorts of things addressed to civic concerns will get different protection depending on the local, state, or federal jurisdictions that happened to employ them. FN8. Del Code Ann Tit 29 � 5115 (20Q3); Fla Stat 5 112.3187 (2003); Haw.Rev.Stat. � 378-61 (1993); Ky Rev Stat Ann. § 61.101 (West 2005); Mass Gen Laws Ann., ch. 149, > 185 .(West 2004); Nev Rev Stat � 281.611 (2003); N H Rev Stat Ann. fi 275-E:1 (SugD 2005); Ohio Rev Code Ann. � 4113.51 (Lexis 2001); Tenn Code Ann. q 50-1-304 (2006 Cum.Supp.). FN9. Ala Code 36-26A-1 et seg. (2001); Colo Rev Stat q 24-50 5-101 et sea (2004); Iowa Code Ann � 70A 28 et seg. (1999); Kan Stat Ann. § 75-2973 (2003 Cum.Supp.); Mo Rev Stat § 105.055 (2004 Cum.Supp.); N.C. Gen Stat Ann. 5 126-84 (Lexis 2003); 2 Okla. Stat., Tit. 74, § 840-2.5 et seq. (West 2005 Supp.); Wash Rev Code § 42.40.010 (2000); Wyo. Stat Ann � 9-11-102 (2003). FN10. Idaho Code � 6-2104(1)(a) (Lexis 2004); Me Rev Stat Ann Tit. 26 5 833(2) 1988 ; Mass Gen Laws Ann ch. 149 5 185(c)(1) (West 2004); N H Rev Stat. Ann. 275-E:2(II) (1999); N.J. Stat Ann � 34:19-4 (West 2000); N.Y. Civ. Serv. Law Ann. § 75-b(2)(b) (West 1999); Wyo. Stat Ann 5 9-11-103(b) (2003). FN11. Kan Stat Ann q 75-2973(d)(2) (Cum.Supp.2003); Kv Rev.Stat. Ann. § 61.102(1) (West 2005); Mo Rev Stat. q 105.055(2) (2004 Cum.Supp.); 2 Okla. Stat., Tit. 74, § 840-2.5(B)(4) (West 2005 Supp.); Ore Rev Stat § 659A.203(1)(c) (2003). FN 12. See n. 4, supra. III The Court remands because the Court of Appeals considered only the disposition memorandum and because Ceballos charges retaliation for some speech apparently outside the ambit of utterances "pursuant to official duties." When the Court of Appeals takes up this case once again, it should consider some of the following facts that escape emphasis in the majority opinion owing to its focus. Ceballos says he sought his position out of a personal commitment to perform civic work. After showing his superior, petitioner Frank Sunstedt, the disposition memorandum at issue in this case, Ceballos complied with Sunstedt's direction to tone down some accusatory rhetoric out of concern that the *1972 memorandum would be unnecessarily incendiary when shown to the Sheriff's Department. After meeting with members of that department, Ceballos told his immediate supervisor, petitioner Carol Najera, that he thought Brady v. Maryland, 373 U.S. 83 83 S Ct 1194 10 L.Ed.2d 215 (1963), obliged him to give the defense his internal memorandum as exculpatory evidence. He says that Najera responded by ordering him to write a new memorandum containing nothing but the deputy sheriff's statements, but that he balked at that. Instead, he proposed to turn over the existing memorandum with his own conclusions redacted as work product, and this is what he did. The issue over revealing his conclusions arose again in preparing for the suppression hearing. Ceballos maintains that Sunstedt ordered Najera, representing the prosecution, to give the trial judge a full picture of the circumstances, but that Najera told Ceballos he would suffer retaliation if he testified that the affidavit contained intentional fabrications. In any event, Ceballos's testimony generally stopped short of his own conclusions. After the hearing, the trial judge denied the motion to suppress, explaining that he found grounds independent of the challenged material sufficient to show probable cause for the warrant. FN13. This case comes to the Court on the motions of petitioners for summary judgment, and as such, [t]he evidence of [Ceballos] is to be believed, and all justifiable inferences are to be drawn in his favor."Anderson v Liberty Lobby Inc 477 U.S. 242, 255, 106 S Ct 2505 91 L.Ed.2d 202 (1986). Ceballos says that over the next six months his supervisors retaliated against him FN14 not only for his written reports, see ante, at 1956, but also for his spoken statements to them and his hearing testimony in the pending criminal case. While an internal grievance filed by Ceballos challenging these actions was pending, Ceballos spoke at a meeting of the Mexican-American Bar Association about misconduct of the Sheriff's Department in the criminal case, the lack of any policy at the District Attorney's Office for handling allegations of police misconduct, and the retaliatory acts he ascribed to his supervisors. Two days later, the office dismissed Ceballos's grievance, a result he attributes in part to his Bar Association speech. FN14. Sunstedt demoted Ceballos to a trial deputy; his only murder case was reassigned to a junior colleague with no experience in homicide matters, and no new murder cases were assigned to him; then-District Attorney Gil Garcetti, relying in part on Sunstedt's recommendation, denied Ceballos a promotion; finally, Sunstedt and Najera transferred him to the Office's El Monte Branch, requiring longer commuting. Before transferring Ceballos, Najera offered him a choice between transferring and remaining at the Pomona Branch prosecuting misdemeanors instead of felonies. When Ceballos refused to choose, Najera transferred him. Ceballos's action against petitioners under 42 U.S.C. 1983 claims that the individuals retaliated against him for exercising his First Amendment rights in submitting the memorandum, discussing the matter with Najera and Sunstedt, testifying truthfully at the hearing, and speaking at the bar meetingY4N As I *1973 mentioned, the Court of Appeals saw no need to address the protection afforded to Ceballos's statements other than the disposition memorandum, which it thought was protected under the Pickering test. Upon remand, it will be open to the Court of Appeals to consider the application of Pickering to any retaliation shown for other statements; not all of those statements would have been made pursuant to official duties in any obvious sense, and the claim relating to truthful testimony in court must surely be analyzed independently to protect the integrity of the judicial process. FN15. The county petitioners' position on these claims is difficult to follow or, at least, puzzling. In their motion for summary judgment, they denied that any of their actions was responsive to Ceballos's criticism of the sheriff's affidavit. E.g., App. 159-160, 170- 172 (maintaining that Ceballos was transferred to the El Monte Branch because of the decreased workload in the Pomona Branch and because he was next in a rotation to go there to serve as a filing deputy"); id., at 160, 172-173 (contending that Ceballos's murder case was reassigned to a junior colleague to give that attorney murder trial experience before he was transferred to the Juvenile Division of the District Attorney's Office); id., at 161-162, 173-174 (arguing that Ceballos was denied a promotion by Garcetti despite Sunstedt's stellar review of Ceballos, when Garcetti was unaware of the matter in People v. Cuskey, the criminal case for which Ceballos wrote the pertinent disposition memorandum). Their reply to Ceballos's opposition to summary judgment, however, shows that petitioners argued for a Pickering assessment (for want of a holding that Ceballos was categorically disentitled to any First Amendment protection) giving great weight in their favor to workplace disharmony and distrust caused by Ceballos's actions. E.g., App. 477-478. Justice GREYER, dissenting. This case asks whether the First Amendment protects public employees when they engage in speech that both (1) involves matters of public concern and (2) takes place in the ordinary course of performing the duties of a government job. I write separately to explain why I cannot fully accept either the Court's or Justice SOUTER's answer to the question presented. I I begin with what I believe is common ground: (1) Because virtually all human interaction takes place through speech, the First Amendment cannot offer all speech the same degree of protection. Rather, judges must apply different protective presumptions in different contexts, scrutinizing government's speech-related restrictions differently depending upon the general category of activity. Compare, e.g., Burson v Freeman 504 U.S. 191 112 S Ct 1846 119 L.Ed.2d 5 (19921 (plurality opinion), (political speech), with Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y 447 U.S. 557, 100 S Ct 2343 65 L.Ed.2d 341 (1980) (commercial speech), and Rust v Sullivan 500 U.S. 173, ill S.Ct. 1759, 114 L.Ed.2d 233 (1991) (government speech). (2) Where the speech of government employees is at issue, the First Amendment offers protection only where the offer of protection itself will not unduly interfere with legitimate governmental interests, such as the interest in efficient administration. That is because the government, like any employer, must have adequate authority to direct the activities of its employees. That is also because efficient administration of legislatively authorized programs reflects the constitutional need effectively to implement the public's democratically determined will. (3) Consequently, where a government employee speaks "as an employee upon matters only of personal interest," the First Amendment does not offer protection. Connick v. Myers 461 U.S. 138 147 103 S.Ct- 1684 75 L Ed.2d 708 (1983). Where the employee speaks "as a citizen •.• upon matters of public concern," the First Amendment offers protection but only where the speech survives a screening test. Pickering v. Board of Ed. of Township High School Dist 205 Will Ctv 391 U.S. 563, 568 88 S.Ct. 1731, 20 L Ed.2d 811 (1968). That test, called, in legal shorthand, " Pickering balancing," requires a judge to "balance ••• the interests" of the employee "in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Ibid. See also Connick, supra, at 142 103 S.Ct. 1684. *1974 (4) Our prior cases do not decide what screening test a judge should apply in the circumstances before us, namely when the government employee both speaks upon a matter of public concern and does so in the course of his ordinary duties as a government employee. II The majority answers the question by holding that"when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."Ante, at 1960. In a word, the majority says, "never."That word, in my view, is too absolute. Like the majority, I understand the need to affor[d] government employers sufficient discretion to manage their operations."Ante, at 1960. And I agree that the Constitution does not seek to displace] ••• managerial discretion by judicial supervision." Ibid. Nonetheless, there may well be circumstances with special demand for constitutional protection of the speech at issue, where governmental justifications may be limited, and where administrable standards seem readily available-to the point where the majority's fears of department management by lawsuit are misplaced. In such an instance, I believe that courts should apply the Pickering standard, even though the government employee speaks upon matters of public concern in the course of his ordinary duties. This is such a case. The respondent, a government lawyer, complained of retaliation, in part, on the basis of speech contained in his disposition memorandum that he says fell within the scope of his obligations under Brady v Maryland 373 U.S. 83, 83 S.Ct. 1194, 10 L Ed.2d 215 (1963). The facts present two special circumstances that together justify First Amendment review. First, the speech at issue is professional speech-the speech of a lawyer. Such speech is subject to independent regulation by canons of the profession. Those canons provide an obligation to speak in certain instances. And where that is so, the government's own interest in forbidding that speech is diminished. Cf. Legal Services Corporation v. Velazouez 531 U.S. 533 544 121 S.Ct. 1043 149 L.Ed.2d 63 (2001) ("Restricting LSC [Legal Services Corporation] attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of the attorneys"). See also Polk County V. Dodson 454 U.S. 312 321, 102 S.Ct. 445 70 L.Ed.2d 509 (1981) ( [A] public defender is not amenable to administrative direction in the same sense as other employees of the State"). See generally Post, Subsidized Soeech 106 Yale L.J. 151, 172 (1996) ( [P]rofessionals must always qualify their loyalty and commitment to the vertical hierarchy of an organization by their horizontal commitment to general professional norms and standards"). The objective specificity and public availability of the profession's canons also help to diminish the risk that the courts will improperly interfere with the government's necessary authority to manage its work. Second, the Constitution itself here imposes speech obligations upon the government's professional employee. A prosecutor has a constitutional obligation to learn of, to preserve, and to communicate with the defense about exculpatory and impeachment evidence in the government's possession. Kyles v Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555 131 L.Ed.2d 490 (1995); Brady, supra. So, for example, might a prison doctor have a similar constitutionally related professional obligation *1975 to communicate with superiors about seriously unsafe or unsanitary conditions in the cellblock. Cf. Farmer v. Brennan 511 U.S. 825 832 114 S Ct 1970 128 L.Ed.2d 811 (1994). There may well be other examples. Where professional and special constitutional obligations are both present, the need to protect the employee's speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards are quite likely available. Hence, I would find that the Constitution mandates special protection of employee speech in such circumstances. Thus I would apply the Pickering balancing test here. III While I agree with much of Justice SOUTER's analysis, I believe that the constitutional standard he enunciates fails to give sufficient weight to the serious managerial and administrative concerns that the majority describes. The standard would instruct courts to apply Pickering balancing in all cases, but says that the government should prevail unless the employee (1) "speaks on a matter of unusual importance," and (2) "satisfies high standards of responsibility in the way he does it."Ante, at 1967 (dissenting opinion). Justice SOUTER adds 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." Id., at 1967. There are, however, far too many issues of public concern, even if defined as"matters of unusual importance," for the screen to screen out very much. Government administration typically involves matters of public concern. Why else would government be involved? And "public issues," indeed, matters of"unusual importance," are often daily bread-and- butter concerns for the police, the intelligence agencies, the military, and many whose jobs involve protecting the public's health, safety, and the environment. This aspect of Justice SOUTER's "adjustment" of"the basic Pickering balancing scheme" is similar to the Court's present insistence that speech be of"legitimate news interest", ibid., when the employee speaks only as a private citizen. See San Diego v Roe 543 U.S. 77, 83-84, 125 S.Ct. 521 160 L.Ed.2d 410 (2004) (per curiam). It gives no extra weight to the government's augmented need to direct speech that is an ordinary part of the employee's job-related duties. Moreover, the speech of vast numbers of public employees deals with wrongdoing, health, safety, and honesty: for example, police officers, firefighters, environmental protection agents, building inspectors, hospital workers, bank regulators, and so on. Indeed, this categorization could encompass speech by an employee performing almost any public function, except perhaps setting electricity rates. Nor do these categories bear any obvious relation to the constitutional importance of protecting the job-related speech at issue. The underlying problem with this breadth of coverage is that the standard (despite predictions that the government is likely to prevail in the balance unless the speech concerns "official dishonesty, deliberately unconstitutional action, other serious wrongdoing, or threats to health and safety," ante, at 1967), does not avoid the judicial need to undertake the balance in the first place. And this form of judicial activity-the ability of a dissatisfied employee to file a complaint, engage in discovery, and insist that the court undertake a balancing of interests-itself may interfere unreasonably with both the managerial function (the ability of the employer to control the way in which an employee performs his basic job) and with the use of *1976 other grievance-resolution mechanisms, such as arbitration, civil service review boards, and whistle-blower remedies, for which employees and employers may have bargained or which legislatures may have enacted. At the same time, the list of categories substantially overlaps areas where the law already provides nonconstitutional protection through whistle-blower statutes and the like. See ante, at 1962 (majority opinion); ante, at 1970 - 1971 (SOUTER, J., dissenting). That overlap diminishes the need for a constitutional forum and also means that adoption of the test would authorize federal Constitution-based legal actions that threaten to upset the legislatively struck (or administratively struck) balance that those statutes (or administrative procedures) embody. IV I conclude that the First Amendment sometimes does authorize judicial actions based upon a government employee's speech that both (1) involves a matter of public concern and also (2) takes place in the course of ordinary job-related duties. But it does so only in the presence of augmented need for constitutional protection and diminished risk of undue judicial interference with governmental management of the public's affairs. In my view, these conditions are met in this case and Pickering balancing is consequently appropriate. With respect, I dissent. Copr. (C) West 2007 No Claim to Orig. U.S. Govt. Works U.S.,2006. Garcetti v. Ceballos 126 S.Ct. 1951, 87 Empl. Prac. Dec. P 42,353, 164 L.Ed.2d 689, 74 USLW 4257, 152 Lab.Cas. P 60,203, 24 IER Cases 737, 06 Cal. Daily Op. Serv. 4453, 2006 Daily Journal D.A.R. 6495, 19 Fla. L. Weekly Fed. S 203 Briefs and Other Related Documents (Back to tool • 2006 WL 730444 (Appellate Brief) Brief for Elaine Mittleman as Amicus Curiae in Support of Neither Party (Mar. 2, 2006) Original Image of this Document (PDF) • 2005 WL 2757514 74 USLW 3270 (Oral Argument) Oral Argument (Oct. 12, 2005) • 2005 WL 2072142 (Appellate Brief) Petitioners' Reply Brief (Aug. 25, 2005) • 2005 WL 1749167 (Appellate Brief) Brief for the National Treasury Employees Union as Amicus Curiae Supporting Respondent%tc (Jul. 22, 2005) ' Original Image of this Document PDF) • 2005 WL 1767121 (Appellate Brief) Brief of Association of Deputy District Attorneys and California Prosecutors Association As Amici Curiae in Support of Respondent (Jul. 22, 2005) • 2005 WL 1767122 (Appellate Brief) Brief of the American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae in Support of Respondent (Jul. 22, 2005) • 2005 WL 1767694 (Appellate Brief) Brief of the National Education Association as Amicus Curiae in Support of Respondent (Jul. 22, 2005) • 2005 WL 1767695 (Appellate Brief) Brief of Amici Curiae Government Accountability Project, National Employment Lawyers Association and Association of Trial Lawyers of America in Support of Respondent (Jul. 22, 2005) • 2005 WL 1801033 (Appellate Brief) Brief of National Association of Criminal Defense Lawyers, the American Civil Liberties Union, and the American Civil Liberties Union of Southern California as Amici Curiae Supporting Respondent%tc (Jul. 22, 2005) Original Imaae of this Document (PDF) • 2005 WL 1801035 (Appellate Brief) Brief for Respondent%tc (Jul. 22, 2005) i`= Original Image of this Document (PDF) • 2005 WL 1801034 (Appellate Brief) Brief of Amici Curiae the Thomas Jefferson Center for the Protection of Free Expression, and the American Association of University Professors (Jul. 21, 2005) • 2005 WL 1276045 (Appellate Brief) Brief for the United States as Amicus Curiae Supporting Petitioners%tc (May 27, 2005) Y� Original Image of this Document (PDF) • 2005 WL 1317482 (Appellate Brief) Petitioners' Brief on the Merits (May 27, 2005) • 2005 WL 1317483 (Appellate Brief) Brief of the National Association of Counties, Council of State Governments, National League of Cities, National Conference of State Legislatures, and U.S. Conference of Mayors as Amici Curiae Supporting Petitioners (May 27, 2005) • 2005 WL 1317484 (Appellate Brief) Brief of International Municipal Lawyers Association as Amicus Curiae in Support of Petitioner (May 27, 2005) • 2005 WL 1620384 (Joint Appendix) JOINT APPENDIX, VOL. II (May 27, 2005) • 2005 WL 1620385 (Joint Appendix) JOINT APPENDIX, VOL. I (May 27, 2005) • 2005 WL 1620386 (Joint Appendix) JOINT APPENDIX, VOL. III (May 27, 2005) • 2005 WL 1284578 (Appellate Brief) Brief of Amicus Curiae National School Boards Association in Support of Petitioners (May 26, 2005) • 2005 WL 289715 (Appellate Petition, Motion and Filing) Petitioner's Reply Brief (Feb. 3, 2005) • 2005 WL 190354 (Appellate Petition, Motion and Filing) Respondent's Brief in Opposition (]an. 25, 2005) • 04-473 (Docket) (Oct. 7, 2004) • 2004 WL 2260964 (Appellate Petition, Motion and Filing) Petition for Writ of Certiorari (Oct. 1, 2004) END OF DOCUMENT 72 INSTRUMENT rJ Anything reduced to writing, a document of a for- Insufficient. Not sufficient; inadequate to some n mal or solemn character, a writing given as a means purpose, or use; wanting in needful value,ability p of affording evidence. A document or writing which fitness; incompetent; unfit, as insufficient food-, tq gives formal expression to a legal act or agreement, sufficient means. It is the antonym of "sufficient',. for the purpose of creating, securing, modifying, or Nissen v. Miller, 44 N.M. 487, 105 P.2d 324 325'. terminating a right. A writing executed and deliv- Insula /ins(y)ala/. Lat. An island; a house not c ered as the evidence of an act or agreement. Moore nected with other houses, but separated by a sur; v.Diamond Dry Goods Co.,47 Ariz. 128,54 P.2d 553, rounding space of ground. 554. Anything which may be presented as evidence : k to the senses of the adjudicating tribunal. Insular courts. Federal courts established by Congr i See also Bearer instrument; Bill; Commercial pa- with jurisdiction over insular possessions of the U per; Negotiable instruments; Note. ed States. Instrumenta/instramenta/. Lat. That kind of evidence Insular possessions. Island territories of the U.S e: which consists of writings not under seal; as court- Puerto Rico. 1'' V rolls, accounts, and the like. � Insulation period. The sixty days immediately prec Instrumental. Serviceable,helpful; serving as a means ing the expiration of a collective bargaining agreE "..] or agent; something by which an end is achieved. ment when no representation petition may be fil !" This is to permit the employer and incumbent uni Instrumentality rule. Under this rule, corporate exist- the opportunity to negotiate a new contract with ence will be disregarded where a corporation(subsid- rival claims for recognition. n k C iary) is so organized and controlled and its affairs so conducted as to make it only an adjunct and instru- Insuper /ins(y)uwpar/. Lat. Moreover; over a mentality of another corporation (parent corpora- above. tion), and parent corporation will be responsible for An old English exchequer term, applied to a cha ary. ! the obligations of its subsidiary. Taylor v. Standard 4; made upon a person in his account. Gas & Electric Co., C.C.A.OkI., 96 F.2d 693, 704. The so-called "instrumentality" or "alter ego" rule insurable. Capable of being insured against loss d l states that when a corporation is so dominated by age, death, etc.; proper to be insured; affording. another corporation that the subservient corporation sufficient ground for insurance. Greenberg v. Conti ,11!; becomes a mere instrument and is really indistinct nental Casualty Co., 24 CaLApp.2d 506, 75 P.2d 64 , t from controlling corporation, then the corporate veil 649. of dominated corporation will be disregarded, if to i inance Insurable interest retain it results in injustice. National Bond F . Such a real and substantial mtere in specific property as will prevent a contract Co. v. General Motors Corp., D.C.Mo., 238 F.Supp. indemnify the person interested against its loss fro 248, 255. being a mere wager policy. Such an interest as �'' �' g g P Y• Instrument of appeal. The document by which an ap- make the loss of the property of pecuniary damage if ! ` peal is brought in an English matrimonial cause from the insured. A right, benefit, or advantage ansi the president of the probate, divorce, and admiralty out of the property or dependent thereon, or f r. division to the full court. It is analogous to a peti- liability in respect thereof, or any relation thereto Lion. concern therein, of such a nature that it might be 4 affected by the contemplated peril as to directly dat .- Instrument of evidence. Instruments of evidence are nify the insured. Generally, an "insurable interest,. the media through which the evidence of facts, either exists where insured derives pecuniary benefit o , disputed or required to be proved, is conveyed to the advantage by preservation and continued existence 9 - . I mind of a judicial tribunal; and they comprise per- property or would sustain pecuniary loss from sons and living things as well as writings. Demon- destruction. Hinojosa v. Allstate Ins. Co., Tex C . ; strative evidence. App., 520 S.W.2d 936, 938. t� h t be- Insubordination. State of being insubordinate; diso In the case of life insurance, a reasonable expectA dience to constituted authority. Refusal to obey tion of pecuniary benefit from the continued life, some order which a superior officer is entitled to give another; also,a reasonable ground,founded upon thae and have obeyed. Term imports a wilful or intention- relation of the parties to each other, either pecunia - al disregard of the lawful and reasonable instructions or of blood or affinity, to expect some benefit of the employer. Porter v. Pepsi-Cola Bottling Co. of advantage from the continuance of the life of the Columbia, 247 S.C. 370, 147 S.E.2d 620, 622. assured. Connecticut Mut, Life Insurance Co. 1 Schaefer, 94 U.S. 457, 460, 24 L.Ed. 251. Essentl . Insufficiency of evidence to support verdict. This thing being that policy be obtained in good faith,n. phrase in a motion for new trial, or for judgment for purpose of speculating g on hazard of life in whirl►'` a notwithstanding the verdict,means that there is some insured has no interest. Alexander v.Griffith Broker. #, evidence, but not enough in light of the evidence to age Co., 228 Mo.App. 773, 73 S.W.2d 418, 423 the contrary to support a verdict. v.Haskins, property .; 347 Mo. 320, 147 S.W.2d 469, Arnold472. It means that Insurable value. Value ofproperty, pinsurless in there is no evidence which ought reasonably to satis- poses. Based on the value of the ro erty, ..4 fy jury that fact to be proved is established. Shreve- structible parts (land) for fire insurance. For till 4 r' Ian v. Metropolitan Life Ins. Co., 162 Misc. 835, 295 insurance purposes, the sales price (market value) ' 0. N.Y.S. 735, 736. used. , + BLACK ' S LAW DICTIONARY Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern By HENRY CAMPBELL BLACK, M. A. Author of Treatises on Judgments, Tax Titles, Intoxicating Liquors, Bankruptcy, Mortgages, Constitutional Law, Interpretation of Laws, Rescission and Cancellation of Contracts, Etc. FIFTH EDITION BY THE PUBLISHER'S EDITORIAL STAFF Contributing Authors JOSEPH R. NOLAN Associate Justice, Massachusetts Supreme Judicial Court and M. J. CONNOLLY Associate Professor of Linguistics and Eastern Languages, Boston College ST. PAUL MINN. WEST PUBLISHING CO. 1979 PLANNING SERVICES The Planning Director is responsible for customer communications, energy and water conservation services and administration of the District's public benefits program. The Planning Director has developed the District's commitment to the green building movement. He has been active in several groups, such as the Town of Truckee's Green Building Committee, the Sierra Green Building Association, the Sierra Business Council, the Chamber of Commerce, and the Sunrise Sustainable Resources Group, all being involved in promoting green building technology. It is important for the District to demonstrate its commitment to conservation by participating in programs such as this. He will continue his involvement in 2007. (Objective 5.2 - District will maintain a program of energy and water use efficiency). The Planning Director is also managing the District's water conservation program. We need to continue to talk about wise use of irrigation water. (Objective 5.2 - District will maintain a program of energy and water use efficiency). The Planning Director conducts residential and commercial energy audits. He also administers the District's rebate program for customers who purchase energy efficient appliance. He has helped the District be a leader in the area of electric and hybrid vehicles. He has arranged for a bio-mass fuel electric generation demonstration project to be constructed in Truckee, in partnership with the California Energy Commission, the Truckee Donner Recreation and Park District and the U.S. Forest Service Truckee Ranger Station. (Objective 5.2 - District will maintain a program of energy and water use efficiency).. In 2007 we will need to continue to communicate with our customers regarding electric and water rates. The planning director will play a key roll in this activity. We will continue to use the local newspaper and other local publications to communicate our message to our customers. We will most likely use brst class letters to communicate important messages. We will also continue to support local nonprofit agencies as our way of showing that we are here to serve the community. (Objective 3.2 - Implement a proactive public outreach program) The program message will focus on our community commitment, reliable service, local control, clean water, environmental concern and customer service. An important focus of the planning director is to position the District prominently in the Truckee community. He will pursue a program of community involvement and support in 2007. He will continue to involve our District in a wide variety of community events by means of corporate sponsorships and general support. 20 i With gasoline, heating oil, propane and natural gas prices increasing dramatically, we have an opportunity to help our customers keep energy costs lower. The energy efficiency programs managed by the Planning Director can provide huge benefits for our customers. (Objective 5.2 - District will maintain a program of energy and water use efficiency). 21 PLANNING SERVICES The planning director is responsible for customer communications, energy and water conservation services and administration of the District's public benefits program. The planning director has developed the District's commitment to the green building movement. He has been active in several groups, such as the Town of Truckee's Green Building Committee, the Sierra Green Building Association, the Sierra Business Council, the Chamber of Commerce, and the Sunrise Sustainable Resources Group, all being involved in promoting green building technology. It is important for the District to demonstrate its commitment to conservation by participating in programs such as these. He will continue his involvement in 2006. The planning director is also managing the District's water conservation program. We need to continue to talk about wise use of irrigation water. The planning director conducts residential and commercial energy audits. He also administers the District's rebate program for customers who purchase energy efficient appliances. He has helped the District be a leader in the area of electric and hybrid vehicles. He has arranged for a bio-mass fuel electric generation demonstration project to be constructed in Truckee, in partnership with the California Energy Commission, the Truckee Donner Recreation and Park I District and the U.S. Forest Service Truckee Ranger Station. This project will be monitored during 2006 to help determine the feasibility of the technology. During the past years, we have conducted a program to clearly brand our District's name and services in the community. Since 2001, we have been less active because we have been denied access to cable television advertising. Cebridge Connections has stated that we will be allowed back on the cable system with messages about electric and water services and conservation. The planning director will manage this public relations program. In 2006, we will need to communicate with our customers regarding electric and water rates and the status of our broadband business plan. The planning director will play a key roll in this activity. We will continue to use the local newspaper and other local publications to communicate our message to our customers. We will most likely use first class letters to communicate important messages. We will also continue to support local nonprofit agencies as our way of showing that we are here to serve the community. f 18 The program message will focus on our community commitment, reliable service, local control, clean water, environmental concern and customer service. An important focus of the planning director is to position the District prominently in the Truckee community. He will pursue a program of community involvement and support in 2006. He will continue to involve our District in a wide variety of community events by means of corporate sponsorships and general support. With gasoline, heating oil, propane and natural gas prices increasing dramatically, we have an opportunity to help our customers keep energy costs lower. The energy efficiency programs managed by the planning director can provide huge benefits for our customers. r {p F {PE f I 19 PLANNING SERVICES The planning director is responsible for customer communications, energy and water conservation services and administration of the District's public benefits program. During 2004, the planning director developed the District's commitment to the green building movement. He has been active in a local group promoting green building projects in Truckee. It is important for the District to demonstrate its commitment to conservation by participating in programs such as this. He will continue his involvement in 2005. The planning director is also managing the District's water conservation program. We need to continue to talk about wise use of irrigation water. During the past years, we have conducted a program to clearly brand our District's name and services in the community. Since 2001, we have been less active because we have been denied access to cable television advertising. In 2005, we will need to communicate with our customers regarding electric and water rates, Donner Lake water, and broadband business implementation. The planning director will play a key roll in this activity. We will continue to use the local j newspaper and other local publications to communicate our message to our customers. We will most likely use first class letters to communicate important messages. We will also continue to support local nonprofit agencies as our way of r showing that we are here to serve the community. The program message will focus on our community commitment, reliable service, local control, clean water, environmental concern and customer service. In 2005, we will need to aggressively market our broadband services. The planning director will work with key account customers to bring telecommunications services to their businesses. An important focus of the planning director is to position the District prominently in the Truckee community. He will pursue a program of community involvement and support in 2005. He will continue to involve our District in a wide variety of community events by means of corporate sponsorships and general support. F 17