Sgt.'s Speech Rights Limited; Suit Dismissed
By RICHARD STEIER

A former NYPD Sergeant who alleged that he was retaliated against for preparing a report that found major environmental hazards in the 50th Precinct stationhouse cannot sue the department on First Amendment grounds, a Federal judge has ruled.

U.S. District Court Judge Sidney H. Stein said the lack of free-speech protections for public employees acting in their official capacities was established by a U.S. Supreme Court ruling in May.

Can Be Disciplined

In that case, Garcetti v. Ceballos, involving an employee of the Los Angeles District Attorney's Office who questioned the factual accuracy of search warrants and their supporting affidavits, the high court said that the First Amendment of the Constitution does not protect a government worker "from discipline based on speech made pursuant to the employee's official duties."

The NYPD case involved a 1999 report by Angelo Ruotolo, a now-retired Sergeant who was the Training and Safety Officer at the 50th Precinct in The Bronx. In that capacity, the 20-year veteran was instructed by his commander to write a report identifying potential environmental hazards inside the stationhouse.

Sergeant Ruotolo reported that air and water in the building might have been contaminated by spills from gasoline storage tanks, and cited health problems among those working at the 50th that he said might be attributable to those hazards.

Judge Stein noted in his decision that information in the report subsequently appeared in newspaper articles, and that eventually the hazardous conditions were remedied.

Claims Retaliation

Mr. Ruotolo alleged that because of his critical findings, he was subjected to retaliatory acts by supervisors that included the denial of time off, loss of his position as Training and Safety Officer in favor of a patrol assignment, a transfer to a less-desirable precinct and trumped-up disciplinary charges.

He claimed that after he filed the Federal lawsuit in 2003, the retaliation intensified, and that he was stripped of his badge and gun for what he claimed was a minor violation of NYPD rules. The former officer contended that he should enjoy First Amendment protections because there were instances in which he was speaking about the hazardous conditions as a private citizen rather than an NYPD employee. One example that he cited involved his conversations with Patrolmen's Benevolent Association lawyers who had come to the 50th Precinct to ask members of that union about the possible environmental hazards.

Judge Stein rejected those arguments, however, while noting that by Mr. Ruotolo's own admission, it was not until he was deposed in this case that the NYPD became aware that he had spoken with PBA lawyers about conditions in the stationhouse. He also noted that the lawyers would have consulted Mr. Ruotolo solely because of his role as the precinct's safety officer.

In explaining his decision to grant the NYPD's request to dismiss the lawsuit, the judge stated, "After Garcetti, for a lawsuit adequately to charge a First Amendment retaliation claim, the lawsuit must be predicated on speech made by a public employee as a citizen, and not pursuant to his or her official duties."