Aug. 2, 2023 – A police officer’s complaints about his new chief, aired before a city’s police and fire commission, were made in his public capacity and as such were not protected by the First Amendment, the U.S. Court of Appeals for the Seventh Circuit has ruled.
In Fehlman v. Mankowski, No. 22-1467, (July 26, 2023), the U.S. Court of Appeals for the Seventh Circuit also held that Fehlman’s speech was not considered private just because Wisconsin law doesn’t allow a police officer to file disciplinary charges against a police chief with a police and fire commission.
Concerns About New Chief
For much of 2019, Patrick Fehlman served as the interim police chief of the Neilsville Police Department (NPD). In early 2020, the city hired James Mankowski as the police chief; Fehlman returned to working as a rank-and-file officer.
For several months, Fehlman expressed concerns to Mankowski about the way Mankowski was running the NPD. Mankowski dismissed Fehlman’s concerns.
Fehlman and several other officers then requested a meeting with the city’s police and fire commission (Commission). During the meeting, Fehlman expressed a number of concerns about Mankowski, including the following:
Mankowski cultivated a culture of fear inside the NPD and officers worried that Mankowski would retaliate against them;
Mankowski told a Neilsville businessman he should install a stripper pole in his bar, so the businessman’s wife could dance topless there;
Mankowski ordered officers to disengage their body cameras, which violated NPD policy;
Mankowski adopted new radio talk procedures that put officers at risk; and
Mankowski put priority on catching speeders over investigating a child abuse allegation.
Post-meeting Retaliation
After Fehlman and the officers met with the Commission, Mankowski took away Fehlman’s department credit card, yelled at Fehlman and other officers, and threatened to bring them up on charges of insubordination.
Fehlman resigned from the NPD and applied for a job with the Clark County Sheriff’s Office. Mankowski tried to derail Fehlman’s application by making false statements about Fehlman.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
Fehlman later learned that Mankowski made changes to his personnel file and provided information to the state unemployment compensation officer that delayed Fehlman’s unemployment benefits.
Mankowski discovered that Fehlman had entered the NPD building to look at his personnel file. Mankowski then sent Fehlman a letter, informing that he was banned from the NPD building.
Federal Lawsuit Follows
Fehlman sued Mankowski under 42 U.S.C. section 1983 in the U.S. District Court for the Western District of Wisconsin. Fehlman claimed that Mankowski had violated his First Amendment rights by retaliating against him for speaking to the commission.
Mankowski moved to dismiss for failure to state a claim. He argued that Fehlman’s speech was not protected by the First Amendment because the speech was related to Fehlman’s official duties.
The district court granted Mankowski’s motion.
Fehlman appealed. He conceded that his statements to Mankowski were not protected speech but argued that his statements to the commission were protected speech.
Only Public Speech Protected
Writing for a three-judge panel, Judge Candace Jackson-Akiwumi began her opinion by explaining that a public employee is entitled to First Amendment protection for his or her speech only if the speech is made in his or her private capacity.
Under Seventh Circuit precedent, Jackson-Akiwumi pointed out, statements by a public employee about misconduct in an area related to his or her responsibilities are treated as having been made in his or her public capacity, even if the employee is not responsible for investigating misconduct.
As a result, Judge Jackson-Akiwumi concluded, Fehlman’s speech to the commission was made in his public capacity.
She reasoned that, under the Wis. Stat. section 62.13(6), a city’s police and fire commission has the authority to supervise the police department, and, under section 62.13(3), the authority to discipline a police chief.
“These statutory provisions governing the [commission] strongly suggest that the body is best seen as part of Fehlman’s chain of command,” Jackson-Akiwumi wrote. “This renders Fehlman’s remarks a form of internal grievance.”
One-way Disciplinary Process?
Fehlman argued that any misconduct communicated by a police officer must, logically, be in the police officer’s private capacity.
That was so, he argued, because under Wis. Stat. 62.13(5), a police chief may file disciplinary charges against a subordinate with a police and fire commission, but a subordinate may not file disciplinary charges against a police chief.
But that argument missed the mark, Judge Jackson-Akiwumi concluded.
“Simply because the statute does not provide a mechanism for subordinates to file formal complaints against their superiors does not mean that a [police and fire commission] cannot solicit employees’ views as part of the investigations it undertakes pursuant to its statutory authority,” Jackson-Akiwumi wrote.
The commission, Judge Jackson-Akiwumi concluded, was in effect an extension of the NPD’s management.
“Fehlman provided insight from his perspective as an employee, not a private citizen, to assist the [commission] in carrying out that function,” Jackson-Akiwumi wrote.
