WICHITA, Kan. (AP) - The “operational interests” of a city as a public employer outweigh the free speech rights of a former secretary who provided an affidavit in support of a fired police officer’s lawsuit, a federal appeals court ruled Wednesday in a case involving the city of Hays.

The 10th Circuit Court of Appeals sided with the western Kansas city, along with its City Manager Toby Dougherty and Police Chief Donald Scheibler. The three-judge panel found that Firma Helget’s disclosure of confidences in the voluntary affidavit caused her superiors to lose trust in her, undermining the Hays Police Department’s operations.

Helget, who worked as the Police Department’s administrative secretary for 10 years, was fired in 2012 after her affidavit in which she stated she had been instructed in December 2010 to remove Officer Blaine Dryden from a list of officers who were due for new ballistic vests in the coming year.

Dryden, who was known for his union organizing activities, contended in a separate wrongful termination lawsuit that the city decided not to order the vest before the incident that was used to justify his termination.

Helget claimed the city violated her free speech rights under the U.S. Constitution.

“Unfortunately, the way I read the case, it would be near impossible for a police department employee to blow the whistle and be protected under the First Amendment,” said Helget’s attorney, Matthew Hoppock.

But Jessica Skladzien, who represents the city officials, called the ruling a “great decision” that preserves employees First Amendment rights while acknowledging government employers have certain rights to regulate the speech of its employees.

“And that right of employers is especially strong for police departments who have a particular interest in avoiding disruption and having a department that runs efficiently,” Skladzien said.

The appeals court noted Helget did not consult with anyone at the city before disclosing the information, and her affidavit was later used in the police officer’s lawsuit.

Scheibler testified he no longer trusted Helget with confidential information, saying her actions deteriorated “any hope for any trust between the person she was supposed to help run the Police Department.”

She sued after she was fired, and a lower court summarily ruled in favor of the city. Helget appealed.

The appeals court panel wrote that courts have “long recognized that loyalty and confidence among employees is especially important in a law enforcement setting.”

It noted that Helget’s affidavit placed into question the city’s stated reason for terminating Dryden. But Helget acknowledged she did not know at the time she signed the affidavit why officials removed Dryden from the vest ordering list, and the affidavit does not reveal any improprieties or misconduct by the city, according to the ruling.

The appeals judges also noted that Helget did not raise the issue with her superiors or inform them after executing the affidavit. The appeals court concluded her chosen form of speech was “disruptive.”

Skladzien said the important takeaway from this case in the First Amendment context is the court’s finding that a public employer need not show that the speech “in fact” disrupted operations. It need only show that the speech could “potentially” become disruptive to outweigh the employee’s interest in the speech.

“Cases involving violation of public employees’ First Amendment rights have always involved a balance between the interest of the employer and keeping a workplace that is functional and the interest of a person in having the rights guaranteed by the Constitution,” Hoppock said. “That balancing test has always been hard, but I don’t think the court should just default to favoring the government’s interest over the employee’s interest every time.”

___

This version of the story corrects that Skladzien represents the city officials only, not the city.

Copyright © 2019 The Washington Times, LLC.