Correctional Officer Wins Free Speech Battle

Posted on Sunday, October 01, 2000 at 12:00PM

When Sonoma County Correctional Officer, Jeff DiCello, wrote a letter of dissatisfaction to Sonoma County Independent newspaper, he didn’t even intend for his letter to be published. DiCello only wanted to voice his disgust with a series of articles about the jail which implied that a number of inmate deaths and other problems were the fault of correctional personnel, such as himself. In defending himself and his coworkers against what he considered to be biased and inaccurate reporting, DiCello used a caustic, if not insulting, parody with [Washington Post] reporters Woodward and Bernstein to deride the Independent’s reporters who had authored the series. Unfortunately, the Independent decided on its own to print DiCello’s letter.

The sheriff’s department turned the matter into an internal affairs investigation and issued DiCello a letter of reprimand for his “Letter to the Editor.” DiCello fought the letter of reprimand through the internal appeals process (which culminated with the sheriff himself) to no avail.

While the case only involved a letter of reprimand, the Legal Defense Fund (LDF) board of trustees felt that freedom of speech for law enforcement employees was of such importance as to justify litigating the matter. LDF panel attorney Bill Williams was brought in to represent DiCello. A petition for writ of mandate was brought in the Sonoma County Superior Court, but the judge sided with county employer, stating to the effect that the more caustic portions of letter could be severed from protected speech and could lawfully support a disciplinary action.

The case was appealed to the State Court of Appeal for the First District. On August 30, 2000, the court issued its decision reversing the superior court judgment and upholding DiCello’s right to freedom of speech. The court held that DiCello’s more caustic comments could not be severed from the rest of the letter and that the whole letter was protected speech. The court went on to state: “Once a court finds that an employee’s speech is protected by the First Amendment, any action by an employer to restrain this speech is unconstitutional.”

Williams, who also successfully represented former Chico POA president Terry Moore in another major free speech case, was glad that the court recognized DiCello’s right to express his opinion about the issues in the jail and the reporting that was done. “This case was a bit unusual in that officer DiCello was not criticizing his employer, but was simply defending himself and his coworkers from unjust criticism by persons outside the department. However, the legal analysis is still the same. Once you show that the speech addresses a matter of public concern, then you must balance the employee’s interest in expressing himself on the issue against the employer’s interest in operational efficiency. In this case, the employer did not show any real or potential impairment to operations. This case is also important because the court rejected the employer’s effort to sever out the more caustic portions of the speech from the clearly protected overall content to the letter. Because it represents an important progression in a line of state cases addressing public employee free speech rights, we may ask that it be officially published so that it can be used as precedent.”

DiCello is grateful to LDF for backing him and to Williams for the hard work put in on his case. “I was just objecting to the clear bias of a series of articles that really impugned the integrity of myself and all of the hard-working correctional officers in the county. As a career law enforcement officer, I was deeply offended at the portrayal of us as incompetent, if not deliberately neglectful of our sworn duties. I’m glad that the court recognized that I had a right to speak out on this issue.”

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