Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—2d Cir.: Clerk spoke as a citizen when refusing to discuss investigation with judge, (Jul 31, 2025)

By Kathleen Kapusta, J.D.

“The right to speak and the right to refrain from speaking are complementary components of the broader concept of individual freedom of mind.”

Vacating the dismissal of a town clerk’s First Amendment claim she was terminated because she refused to answer the town justice’s inquiries about an investigation into that justice, the Second Circuit, emphasizing the limited nature of its ruling, held that the lower court’s conclusion that the clerk had not stated a plausible claim was legally erroneous, though not that her complaint was necessarily meritorious. While the court found the clerk spoke as a private citizen when she refused to discuss the investigation with the justice, it concluded that further investigation of the factual record was necessary to determine whether she acted as a citizen when she provided to a state commission case files on four individuals in connection with the investigation (Long v. Byrne, No. 24-3080-cv (2d Cir. July 30, 2025)).

Files request. Appointed in May 2019 as clerk of the town justice court by the town board with the advice and consent of the town justices, the employee was consistently given high praise for her work. In 2023, a representative of the state commission on judicial conduct approached the employee, requested case files on four individuals in connection with an anonymous judicial ethics complaint that had been filed against a town justice, who was the employee’s supervising judge, and told the employee she was not allowed to discuss the investigation with anyone. The employee turned over the requested files.

Termination. A few months later, according to the employee, the justice angrily confronted her about the investigation. She was upset the employee never told her who had filed the complaint against her. The employee explained that she did not know and that she was advised not to speak about the investigation to anyone. She also purportedly told the justice that she was not required to respond to her because “her job duties [did not] require her to advise a Town Justice as to the requirements of the Commission” and knowledge of those requirements was the justice’s responsibility. She was fired shortly thereafter.

Lower court proceedings. The employee then sued the town and the justice asserting that they violated her First Amendment rights and her rights under New York State Civil Service Law § 75-b when they unlawfully fired her in retaliation for her cooperation with the commission’s investigation. Dismissing her First Amendment claim, the district court found her conduct was not protected because she was acting pursuant to her official duties and therefore acted as an employee and not as a citizen.

Official duties or private citizen? On appeal, the parties disputed whether the employee acted pursuant to her official duties or as a private citizen when she cooperated with the commission’s investigation. The court turned first to the employee’s refusal to answer the justice’s inquiries about the investigation, and specifically whether it was within the scope of her work duties to discuss the commission’s investigation with the justice. Here, the court observed, the employee alleged that months after she provided the files to the commission, the justice “came into the office angry, saying that she was being investigated by the Commission” and was upset the employee “did not tell her who had filed the complaint against her.”

In addition to telling the justice she did not know who filed the complaint, the employee explained that she had been advised not to talk to anyone, including the justice, about the investigation. She also alleged that it was not her responsibility to advise the justice as to the requirements of the judicial conduct commission and that those requirements were within the justice’s purview.

Decision not to speak. While the district court found those allegations insufficient to state a claim for First Amendment retaliation because the attempted conversation occurred during working hours and was between the employee and her “supervising judge,” the appeals court found them sufficient to survive a motion to dismiss. The court first emphasized that the employee’s decision not to speak did not strip her of First Amendment protection as the “First Amendment’s guarantee of freedom of speech ‘necessarily compris[es] the decision of both what to say and what not to say.’”

Job duties. And while the district court pointed to the location of her speech and the person to whom she spoke, the critical inquiry, said the appeals court, was whether employee, in refusing to talk to the justice about the investigation, was acting pursuant to her job duties. Finding that she adequately alleged the speech at issue was not part of her job duties, the court noted that the justice initiated the confrontation with the employee because she was angry that the commission was investigating her suspected misconduct, not that she was angry because the commission was investigating conduct that implicated the employee’s duties as court clerk.

The employee also alleged that the justice was angry because the employee would not tell her who filed the complaint. But not only did she not know, she alleged that it was not within the scope of her job duties “to advise a Town Justice as to the requirements of the Commission.” Further, observed the court, the employee asserted facts supporting that the commission was an independent entity, she was not employed by the commission, and she was not required to report to the commission. Accepting those allegations as true, the court found no clear reason why it would be within her job duties to provide the justice with information related to an independent third-party’s investigation into the justice’s suspected misconduct.

And even if it was within the employee’s job duties to tell her who had requested court files, the court found it did not follow that it was also within her duties to tell the justice who had filed the complaint.

Efficient operations. Nor, said the court, was it clear in any way that the employee’s refusal to engage with the justice on the investigation risked sacrificing the efficient operations of the clerk’s office. Her adherence to the commission’s request that she refuse to discuss its investigation did not risk hampering the justice’s effective supervision of the employee’s day-to-day responsibilities, the court explained, as that refusal, she alleged, was entirely independent of her job duties.

Civic duty. Finally, the court found the employee’s allegation she decided not to speak with the justice about the investigation because the commission “advised” her that it “would be unlawful to do so” further supported that she acted as a private citizen when she refused to discuss it. Rather than indicating the employee was motivated to comply with the commission’s request because she believed that her job required her to do so, the complaint supported an inference that she cooperated out of her sense of civic duty. She alleged that when she cooperated with the commission, she “was acting in the same manner as any private citizen to whom the Commission... inquired” and that when she acted, she tried to “comply with the laws, rules, and regulations of the [Commission].” “Her desire to be a law-abiding citizen,” wrote the court, “is not an employment-related motivation.”

Limited ruling. In finding that the employee spoke as a citizen when she refused to discuss the commission’s investigation with the justice, the court pointed to the limited nature of its ruling, noting that it addressed only whether the district court correctly ruled that she failed to plausibly state a claim based on its analysis of one portion of the test for whether the First Amendment protected her speech. The court expressed no view as to whether her complaint satisfied other aspects of the test that the district court did not reach.

Case files. Regarding whether the employee acted as a citizen when she complied with the commission’s request to turn over the case files, the court pointed to “a dearth of information” in her complaint about the nature of her job duties, making it difficult to discern whether her decision to provide the files fell within the scope of those duties. Noting that her complaint presented more questions than answers, the court found further development of the factual record was necessary “to fully understand the extent to which [the employee’s] provision of the case files intersected with her responsibilities as Court Clerk.”

The case is No. 24-3080-cv.

Judge: Lynch, G.

Attorneys: Phillip G. Steck (Cooper Erving & Savage) for Samantha Long. Stephen M. Groudine (Murphy Burns Groudine) for Jessica Byrne. Earl T. Redding (Roemer Wallens Gold & Mineaux) for Town of New Lebanon.

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