Trusz v. UBS Realty Investors, LLC

Majority - Justice Palmer

No, the rule announced by the U.S. Supreme Court in Garcetti v. Ceballos does not apply to a claim that an employer violated General Statutes § 31-51q based on the exercise of rights guaranteed by the Connecticut Constitution. Instead, a modified form of the Pickering/Connick balancing test applies to speech by an employee pursuant to official duties under the state constitution, and § 31-51q extends the same protection to similar speech by a private employee. The court arrived at this conclusion by applying the Geisler multifactor approach for interpreting state constitutional provisions. First, the text of Article First, Section 4 of the Connecticut Constitution, which protects citizens' right to speak freely "on all subjects," is broader than the First Amendment. This supports a standard more consistent with Pickering/Connick than Garcetti's categorical approach, which the court found did not limit speech based on the speaker's capacity as a citizen. Second, related Connecticut precedents, such as State v. Linares, demonstrate the court's willingness to interpret state free speech provisions independently and more broadly than federal counterparts. The court has previously maintained a status quo of broader protection when federal standards narrowed, as Garcetti did after 38 years of Pickering's application. Third, the court found Pickering and Connick to be more persuasive federal precedents than Garcetti. The Garcetti distinction between 'citizen' and 'employee' speech is artificial and difficult to apply, creating new uncertainties and potentially discouraging internal reporting. Garcetti shifted the focus from the public concern of the speech (hierarchy of First Amendment values) to the employee's status, even if the speech concerned matters of high public value. Furthermore, Garcetti creates a perverse incentive for employees to bypass internal channels and air concerns externally to gain protection. The court found Justice Souter’s proposed modified Pickering test (protecting speech on official dishonesty, unconstitutional action, serious wrongdoing, or threats to health and safety) adequately balances employer interests with the public's need for information. Fourth, sister state decisions applying Garcetti were deemed unpersuasive, as they either disagreed with the court's reasoning or presumed coextensiveness between state and federal protections, which Connecticut does not. Fifth, historical insights show Connecticut's constitutional framers contemplated vibrant public speech and minimal governmental interference, reinforcing a broad interpretation of speech rights. Finally, contemporary understandings and sociological norms weigh against Garcetti. Denying protection for official-duty speech on public concerns reduces the likelihood that employees, who are best positioned to know, will report corrupt or dangerous practices. This incentivizes external over internal reporting, which is contrary to public policy embodied in § 31-51q. The court also held that this modified Pickering/Connick standard applies to private workplaces under § 31-51q, rejecting arguments that private employers have a broader right to control speech or that such protection is solely a legislative matter. The legislature intended § 31-51q to protect constitutionally protected speech in the private workplace, and the adopted standard adequately balances employer and employee interests.