Wednesday, September 19, 2012

A Better Way To Pick New York Judges


Fix the state's broken judicial conventions


Just when New Yorkers may have thought that the selection process for determining who will run for office in November was over, please note: Political primaries may be over, but more is yet to come.

Critically important decisions will soon be made about who gets to appear on the ballot as judicial candidates for vacancies on the state Supreme Court, a vitally important court which hears significant civil cases, divorce, separation and annulment proceedings, and New York City criminal prosecutions of felonies.

How do the powers that be decide who may run for judge? The process isn’t pretty. It’s politics in the worst sense of the word.

According to our election law, political parties have the right to choose who will be designated as their standard bearers for these vacancies on the bench at their conventions. And so, from Sept. 18 through Sept. 24, they’ll do just this. This year, there are scores of Supreme Court vacancies all across the state and a dozen in New York City alone. And that doesn’t take into account judges whose 14-year terms are expiring.

So what do the conventions feel like? Are they open affairs where voters can witness ideas being presented and decisions being made? If only.

Unlike the recent, prime-time national party conventions, New York’s judicial conventions are opaque, brief and dominated by local county party leaders. And because in many judicial districts (including in most of New York City) one political party dominates, whoever is nominated is likely to be the only choice voters have in November.

Over and over again, the public gets shut out. Insiders rule. Merit takes a backseat. And connections get rewarded.
Under existing law, county political parties could initiate reforms of the system now. They could make the judicial convention system more transparent, democratic and focused on merit.

And some have taken steps in the right direction. But most have not, and delegates at those conventions too often act as rubber stamps for leaders who place cronies and relatives on the ballot.

This is terrible news for the thousands of people who find themselves at the receiving end of justice administered by judges hand-picked by leaders whose primary concern is maintaining their own political power.

Eventually, we need an appointive system — which would use a qualification commission to determine the best judicial candidates. That’s the type of system voters approved many years ago for the selection of judges for New York’s highest court, the Court of Appeals. However, this change — amending the state Constitution — would require a very lengthy process.

We cannot afford to wait for reform.

The state Legislature should provide New Yorkers with a better system of nominating candidates now. This would entail amending the election law to provide for the establishment in each judicial district of an independent judicial qualification commission, which would evaluate the qualifications of Supreme Court candidates and recommend a limited number of most qualified candidates for each vacancy, to be considered by delegates to the judicial conventions.
In addition, because delegates should actually make decisions independent of their county leader, the Legislature should:

l set the date of the elections of judicial delegates long before the date of the conventions, to allow for legitimate public scrutiny;

l reduce the number of signatures required on delegate designating petitions to encourage independent citizens to run; and

l give delegates the opportunity to hear each candidate address the conventions, to begin transforming an insider game into one that values merit more.

If we are to going to continue to elect justices to the New York’s most important courts, this is the least we can do.
Williams is chairman of the Fund and Committee for Modern Courts, a nonpartisan statewide organization.

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Tuesday, September 18, 2012

State Controller Tom DiNapoli Ducks Responsibility in Vito Lopez Sexual Harassment Settlement Which Makes Him Sound Negligent About the Spending of Public Funds


State Controller Tom DiNapoli’s website declares him “responsible for ensuring that the taxpayers’ money is being used effectively and efficiently to promote the common good.”
How well did he fulfill the mission in the matter of the secret sexual harassment settlement that has embroiled Assembly Speaker Sheldon Silver and Assemblyman Vito Lopez? 

Documents newly released under the Freedom of Information Law reveal that:

 l Bill Collins, attorney for Silver, discussed the situation with DiNapoli’s chief counsel, Nancy Groenwegen, months before it was finalized.

l Collins emailed Groenwegen multiple drafts of the settlement — including names, dollar amounts and confidentiality clauses — that she says she forwarded to attorneys on her staff.

l One of those lawyers did a legal analysis of the deal and proposed changes that were incorporated in later drafts.

l A copy of the final, signed settlement was delivered to Groenwegen before the controller cut a $103,080 check on June 13
Nowhere in these documents does anyone express the slightest concern that Lopez’s alleged mistreatment of female employees is being kept secret from the people who are footing the bill.

Welcome to the go-along-to-get-along political culture that spawned DiNapoli, who was a longtime member of the Assembly before his colleagues appointed him controller on the departure of Alan Hevesi.

As for DiNapoli’s personal role, his office insists his underlings kept him in the dark even as they engaged in consultations with Silver’s staff about a confidential settlement that was designed to shield Lopez’s misdeeds from discovery.

Here, then, are the questions: Which would be worse, that DiNapoli was ignorant, as he states, or that he was complicit, as he denies? And does it make any difference at all?

The secret $103,000 settlement given to two former staffers who accused Assemblyman Vito Lopez of sexual harassment included a penalty of $20k or more if anyone involved talked about its details 

The $20k fine, which could be increased by an arbitrator, was four times the amount that was initially discussed


Former Lopez staffer Leah Hebert, 29, was one of two women who got a $103,000 taxpayer-funded settlement. It included strict financial penalties if either woman talked about any aspect of the deal, even its very existence.


Former Vito Lopez staffer Leah Hebert, 29, was one of two women who got a $103,000 taxpayer-funded settlement over allegations of sexual harassment. It included strict financial penalties if either woman talked about any aspect of the deal, even its very existence.

 ALBANY — The first two women to accuse Assemblyman Vito Lopez of sexual harassment have 20,000 reasons to keep quiet about it.

The secret $103,000 settlement former staffers Rita Pasarell, 30, and Leah Hebert, 29, reached with the state Assembly featured a provision for a fine of $20,000 if they, Lopez or anyone else involved in the negotiations went public about the agreement or the allegations that led to it. Further, the deal included a stipulation for an arbitrator to award damages in excess of the base fine.

The $20,000 penalty was four times what had been considered in an initial draft agreement, and nearly matches the $20,262 payout Hebert, Lopez’s former chief of staff, received. Pasarell, formerly the Brooklyn Democrat’s deputy chief of staff, was awarded $60,786 because, according to emails pertaining to the settlement that were released Wednesday, she had allegedly been subjected to “much more egregious harassment, and over a longer period of time.”

Terms of the final deal were included in a batch of emails made public by the state controller’s office under a Freedom of Information law request submitted by the Daily News. The deal says those involved can only discuss the matter in response to a court order, subpoena or as part of required disclosures to financial or tax advisers.

The emails released Wednesday revealed the office of state Controller Thomas DiNapoli, which had to sign off on the taxpayer-funded deal, was far more involved in the talks than it has let on.

As the Lopez scandal has widened since it broke late last month, DiNapoli has argued his office just cut the settlement check. But emails show staffers in his office pushed for specific changes to be made to language in parts of the settlement that pertained to the payouts and related tax issues. Aides to DiNapoli expressed serious questions about possible tax liabilities and suggested at one point that the controller’s office be given pre-audit authority over the agreement.

Yet William Collins, a lawyer for Assembly Speaker Sheldon Silver, wrote in an Aug. 31 email to Silver chief counsel Jim Yates that DiNapoli’s office ultimately never saw or asked for the final agreement — despite its earlier insistence on pre-audit approval.

Silver has come under fire for approving the deal and for not reporting the allegations to the Assembly Ethics Committee. Sources told The News that Silver has hired a private lawyer as dual investigations look into the settlement.

Paul Gentile Quits Bronx Bar Association In Opposition To Michael Marinaccio

Bar’ brawl: Former Bronx DA blasts law group’s new prez over ‘mob ties’

Last Updated: 1:03 AM, September 18, 2012
Posted: 12:48 AM, September 18, 2012

A former Bronx district attorney revived a 25-year-old feud yesterday by resigning from the borough’s Bar Association to protest the rise to president of a rival he accused of having mob ties.

In a fiery letter to Bronx Bar Association members, Paul Gentile says he wants out of the legal group as long his political enemy, Michael Marinaccio, remains in charge.
Gentile served as Bronx DA for 18 months between 1987 and 1988, then butted heads with Marinaccio during a bitter election fight against Marinaccio’s law partner, Philip Foglia.
LEGAL FIGHT:Former DA Paul Gentile has quit the Bronx Bar Association over old foe Michael Marinaccio’s (above) rise to president.
LEGAL FIGHT:Former DA Paul Gentile has quit the Bronx Bar Association over old foe Michael Marinaccio’s (above) rise to president.
LEGAL FIGHT: Former DA Paul Gentile (above) has quit the Bronx Bar Association over old foe Michael Marinaccio’s rise to president.
LEGAL FIGHT: Former DA Paul Gentile (above) has quit the Bronx Bar Association over old foe Michael Marinaccio’s rise to president.
Gentile, 69, said then — and maintains to this day — that Foglia and Marinaccio have ties to the Genovese crime family, and that Marinaccio’s ascension to president of the Bronx bar is a stain on the organization.
“Foglia’s partner and close friend, Michael Marinaccio, did everything that he could do to deliver the office of the Bronx District Attorney to the mob,” Gentile claimed in the letter.
“Having failed at that effort, Michael Marinaccio now seeks to deliver to the Genovese crime family the office of President of the Bronx Bar Association.”
Gentile claims wiretaps from then-Manhattan DA Robert Morgentheau’s office revealed that Foglia’s campaign was being underwritten by the Genovese family.
Later, Marinaccio, 60, served as a defense attorney for Genovese boss Vincent “The Chin” Gigante.
But Marinaccio, who threatened to sue Gentile for slander, said his old nemesis is just using an old grudge to sabotage his tenure as president. Marinaccio took over the bar’s top post in July and is scheduled to be formally installed Thursday.
“This is not a popular uprising,” Marinaccio told The Post. “This is a bitter man. What he’s doing is an effort to embarrass me, my family and this organization with baseless charges that have been debunked before.”
Gentile was appointed DA by then-Gov. Mario Cuomo after DA Mario Merola died in 1987.
It was during Gentile’s heated campaign for a full term that he dropped the bombshell on Foglia that FBI wiretaps had linked Foglia, a former Bronx prosecutor, to organized crime figures.

But Gentile beat the mob-ties drum so loudly that it eventually led to his own downfall.

Cuomo and then-US Attorney Rudy Giuliani put pressure on Gentile to step down for using FBI reports for political purposes.

Gentile did not quit his post, but dropped out of the race, admitting he was “a terrible politician.”

The race was eventually won by Robert Johnson, who is still the Bronx DA.

During the contentious primary fight, Giuliani defended Foglia against charges that he leaked confidential information to the mob.

A year later, Foglia joined Giuliani on campaign stops during his first run for mayor.

Foglia and Giuliani did not immediately return calls for comment. Marinaccio said he and Foglia are no longer law partners but remain friends.

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Wednesday, September 12, 2012

Supreme Court removes 22nd District Court judge Sylvia James

Inkster Judge Sylvia James was placed on administrative leave in April 2011 after an audit uncovered irregularities.
Inkster Judge Sylvia James was placed on administrative leave in April 2011 after an audit uncovered irregularities.
The Michigan Supreme Court has removed embattled Inkster Judge Sylvia James from the bench and ordered her to pay restitution after she was found guilty of judicial misconduct in April.
In an opinion released Tuesday, the Supreme Court said it agreed with the Michigan Judicial Tenure Commission's recommendation to remove James for the remainder of her term, which ends Dec. 31.
In the opinion, the justices concluded, "The purpose of these proceedings is not to impose punishment on the respondent judge ... but to protect the people from corruption and abuse on the part of those who wield judicial power.
"In a case similar to this one that also involved substantial and pervasive misconduct, we removed a judge from office for the remainder of his term," the opinion stated. "Judge James' misconduct persisted for years, permeating and infecting every corner of the 22nd District Court."
James' attorney, Sharon McPhail, said she did not think the punishment was fair.
In June, the Judicial Tenure Commission concluded James misappropriated funds in the 22nd District Court's Community Service Program account; engaged the court in improper banking and revenue practices, and employed her niece in violation of an anti-nepotism policy.
The commission also found James made intentional misrepresentations in the course of her judicial duties and hired a magistrate knowing he was not qualified for the job.
The state Supreme Court's opinion directed the Judicial Tenure Commission to submit costs, fees and expenses associated with prosecuting the complaint to the court so that it may be factored into the restitution James would pay.
James will have an opportunity to respond to the costs.
Judicial Tenure Commission Examiner Paul Fischer requested that James be removed for an additional term, which is six years. James is currently running for re-election to the 22nd District Court in Inkster.
Justice Stephen Markman agreed with the court's decision but thought James should have a conditional suspension for six years.
"In light of this court's responsibility to ensure the integrity of our judicial system, both in appearance and in fact, and in light of the serious misconduct by Judge James that directly impugns the integrity of 'our court of justice' and because of her serious abuse of the public trust, financial and otherwise, I would impose a six-year conditional suspension in addition to the sanctions imposed by the majority."
James was placed on administrative leave in April 2011 after an audit uncovered irregularities in the 22nd District Court's financial records.
Contact Melanie Scott Dorsey: 313-222-6159

Ross v Breslin: Employees Who Blow The Whistle Do Not Have Protection Under The First Amendment, Says NYS Court of Appeals

from Betsy Combier -

If you want to be a whistleblower, then you have to repeat the following, "I am speaking as a private citizen on a matter of public concern" in order to overcome Garcetti v. Ceballos, the lack of protection for employees who speak out as in the reversal of Ross v Breslin, below:

United States Court of Appeals,Second Circuit.


Risa A. ROSS, Plaintiff–Appellee, v. Peter F. BRESLIN, Eve Hundt, Michael Gordon, Felycia Sugarman, Donna Walsh, Bruce Pavalow, Warren Schloat, Board of Education of The Katonah–Lewisboro Union Free School District, Katonah Lewisboro Union Free School District, Kevin Sheldon, Defendants, Robert Lichtenfeld, Defendant–Appellant.
Docket No. 10–5275–cv.
-- September 10, 2012
Before WALKER, LEVAL, and POOLER, Circuit Judges.
Jonathan Lovett, Law Office of Jonathan Lovett, Hawthorne, NY, for Plaintiff–Appellee.ROndiene E. Novitz, Cruser, Mitchell & Novitz, LLP, Melville, NY, for Defendant–Appellant.

 This appeal requires us to determine whether plaintiffappellee Risa A. Ross (“Ross”) was speaking pursuant to her official duties as a payroll clerk typist for the Katonah Lewisboro Union Free School District (“the District”) when she reported financial malfeasance to defendant-appellant Robert Lichtenfeld (“Lichtenfeld”), the District's tendent, and to the Katonah–Lewisboro Board of Education (“the Board”). The United States District Court for the Southern District of New York (William G. Young, Judge ) held that Ross was speaking as a private citizen and that her First Amendment retaliation claim could proceed to trial. We disagree. We conclude that Ross's complaints were made pursuant to her official duties and therefore were not protected by the First Amendment. See Garcetti v. Ceballos, 547 U.S. 410 (2006). Accordingly, Lichtenfeld is entitled to summary judgment on Ross's First Amendment retaliation claim.


When reviewing an interlocutory appeal from a denial of a motion for summary judgment, we resolve all factual disputes in favor of the non-movant. Droz v. McCadden, 580 F.3d 106, 108 (2d Cir.2009). In 1998, Ross was hired by the District as a payroll clerk typist. Her immediate supervisor was Margaret Taylor. Lichtenfeld was, at all relevant times, the District's Superintendent. Ross testified that her job duties were:
To process biweekly payrolls for approximately 800 people, transmit direct deposit, [and] mail out [checks relating to other payments, such as taxes and garnishments,] ․ getting the pay reqs. [requisitions] ․ and processing, making sure that the pay rates were correct, making sure that the totals were correct, and verifying. If there was a mistake with a pay req., bringing it to the appropriate person's attention.

If it was a mistake that I felt was a mistake, I would bring it to the person's attention․ If there was a pay req. that I disagreed with and I had questions about․

I brought—a lot of them I brought to Bob [Lichtenfeld]'s attention that I didn't think were appropriate.
Ross Deposition 64–65. Ross's job required her to know the current salary of each district employee.
Between May 2003 and July 2006, Ross met with Lichtenfeld on numerous occasions to express concern over payments she believed to be improper. At their first meeting in May 2003, Ross informed Lichtenfeld that Howard “Lee” Turner, a District courier, had forged his supervisor's signature to obtain additional pay. Ross played voicemails for Lichtenfeld in which a supervisor told her to forget about Turner's actions and not say anything. Lichtenfeld informed the Board of Turner's forgery. Turner voluntarily resigned to avoid disciplinary action and received compensation for his accrued vacation time and two months of continued health insurance.

On February 10, 2004, Ross again met with Lichtenfeld to tell him that John Thibdeau, the director of administrative services, was retaliating against her for questioning improper payments he had approved and for an incident involving Lisa Kor. At this meeting, Ross gave Lichtenfeld documentation of some of these disbursements. When Lichtenfeld looked at the documentation, he said something to the effect of: “Oh, my God. This is worse than the Enron scandal. If taxpayers find out heads will spin.” Ross Deposition 119. Following this meeting, Ross continued to meet with Lichtenfeld about similar complaints.

Ross's complaints primarily concerned improper disbursements which she believed were made without the required Board approval based on her review of Board meeting agendas. She had been told by Lichtenfeld that “Board action people” (individuals not under contract who must be annually approved by the Board) were not entitled to overtime. She approached Lichtenfeld with examples of Board action people who were receiving overtime pay without Board approval. Similarly, Lichtenfeld told Ross that it was illegal to give out bonuses or performance awards without Board approval. Ross complained of numerous performance awards, bonuses, stipends, at least one longevity payment, and other miscellaneous disbursements all of which she believed were made without the necessary Board approval. In a separate incident, Ross complained that Lichtenfeld had spent $500 of District funds to buy chocolates for a gift.

In October 2005, the District hired Renee Gargano (“Gargano”) as an outside consultant to help resolve interpersonal problems among the staff. Gargano was at all relevant times Deputy Superintendent of the Putnam/Northern Westchester BOCES (“Putnam”), a nearby school district. Upon viewing a list of employees, Gargano recognized Ross's name and informed Lichtenfeld that Ross had previously been employed by Putnam. Gargano did not recall having received a reference check call when Ross was hired by the District. Further investigation revealed that Ross had failed to list her employment with—and termination from—Putnam, as well as two other school districts, on her employment application.

In January 2006, Ross met with Gargano. Ross told Gargano about the improper payments she had reported to Lichtenfeld and showed her the relevant documentation. Gargano took the documents and said she would discuss the matter with Lichtenfeld.
On May 23, 2006, Ross was suspended with pay by Kevin Sheldon, the District's Assistant Business Administrator. On July 21, 2006, Ross wrote a letter on her personal stationary to the individual Board members outlining the concerns she had raised to Lichtenfeld. The letter began: “Although I am an employee of the School District, I am writing to you, ․ President of the Board of Education, on a personal note out of complete frustration with the District's administration.” after explaining her conversations with Lichtenfeld and noting her frustration with his failure to take what she considered to be appropriate action, she stated that her suspension was in retaliation for reporting financial malfeasance.
After the Board received this letter, it convened an executive session at which Lichtenfeld recommended Ross's termination. The Board voted to terminate her. It subsequently learned, however, that Ross had been entitled to a pretermination hearing. It rescinded her termination and initiated a disciplinary hearing, which was held on August 24 and 31, 2006, before Hearing Officer Joseph E. Wooley. The Hearing Officer found that Ross had knowingly made false statements on her application and recommended that she be terminated. On December 19, 2006, the Board voted unanimously to terminate Ross.

Ross filed this amended complaint in March 2007 claiming in relevant part that her termination was a violation of her First Amendment rights. Lichtenfeld moved for summary judgment. On December 6, 2010, the district court granted the motion as to some of Ross's claims, but denied it with regard to her First Amendment retaliation claim. Ross v. Lichtenfeld, 755 F.Supp.2d 467 (S.D.N.Y.2010). The district court concluded that Lichtenfeld was not entitled to qualified immunity on that claim. Id. at 479. Lichtenfeld appeals.


An interlocutory appeal from a denial of summary judgment is permissible when a district court denies the defendant qualified immunity. See Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 760 (2d Cir.2003). Such an appeal is allowed only if the defendant contends that he is entitled to qualified immunity under the plaintiff's version of the facts. Id. at 761. Ross argues that we lack jurisdiction because this appeal is based on disputed facts, i.e., Lichtenfeld's intent. However, we agree with Lichtenfeld that even under Ross's version of the facts, her complaints are not entitled to First Amendment protection because they were made pursuant to her job duties. Thus, Ross's jurisdictional argument is without merit.

We will grant summary judgment if, taking all the facts in the light most favorable to the non-moving party, the defendant was entitled to qualified immunity as a matter of law. Id. at 760–61. In general, qualified immunity shields “government officials performing discretionary functions ․ from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The qualified immunity inquiry can turn on either of two questions: whether the complaint alleges the deprivation of an actual constitutional right, or whether the right was clearly established at the time of the incident. See Pearson v. Callahan, 555 U.S. 223, 232, 236 (2009). A “no” answer to either question requires judgment for the defendant. See id. at 245; Costello v. City of Burlington, 632 F.3d 41, 51 (2d Cir.2011) (Pooler, J., concurring). The district court concluded that Ross had presented sufficient evidence that Lichtenfeld violated her clearly established First Amendment right to freedom of speech. We disagree and hold that, because Ross was speaking pursuant to her official duties and not as a private citizen, her speech was not protected by the First Amendment. Because we find that the complaint does not allege a violation of a constitutional right, it is clear a fortiori that the right was not clearly established at the time of the incident.

In the First Amendment context, “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563, 568 (1968). Speech by a public employee is protected by the First Amendment only when the employee is speaking “as a citizen ․ on a matter of public concern.” Piscottano v. Murphy, 511 F.3d 247, 269–70 (2d Cir.2007). In Garcetti v. Ceballos, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” 547 U.S. at 421. This is the case even when the subject of an employee's speech is a matter of public concern. Jackler v. Byrne, 658 F.3d 225, 237 (2d Cir.2011); Anemone v. Metro. Transp. Auth., 629 F.3d 97, 115–16 (2d Cir.2011). Therefore, if, as a matter of law, Ross was speaking pursuant to her official duties, Lichtenfeld is entitled to summary judgment.

In Garcetti, the plaintiff, Richard Ceballos, who was a deputy district attorney, was asked by a defense attorney to review an affidavit that had been used to obtain a search warrant. Ceballos discovered significant misrepresentations in the affidavit. He informed his supervisors of his discovery and wrote a disposition memo recommending that the charges be dismissed. He claimed that he was subsequently subjected to retaliatory employment action. 547 U.S. at 413–15. The Supreme Court determined that he had not been speaking as a citizen when he told his supervisors about the problems with the affidavit: “The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy․ Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case․” Id. at 421. In short, “Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was employed to do.” Id.

The Court further observed that “[r]estricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.” Id. at 421–22. Instead, “[i]t simply reflects the exercise of employer control over what the employer itself has commissioned or created.” Id. at 422.

In Weintraub v. Bd. of Educ., 593 F.3d 196 (2d Cir.2010), we addressed the applicability of Garcetti to a teacher's complaints about his school administration's failure to discipline a disruptive student. After the administration failed to punish a student in Weintraub's class for throwing a book on two separate occasions, Weintraub told his supervisor and coworkers that he intended to file an employee grievance with his union, and thereafter filed the grievance. Weintraub, 593 F.3d at 198–99.

Weintraub argued that his complaints were not made pursuant to his official duties because they were not required by his job description, school policy, or other relevant regulations. Id. at 201–02. We rejected this argument, holding that “under the First Amendment, speech can be ‘pursuant to’ a public employee's official job duties even though it is not required by, or included in, the employee's job description, or in response to a request by the employer.” Id. at 203. We emphasized that the inquiry into whether speech was made pursuant to an employee's “official duties is ‘a practical one,’ “ id. at 202 (quoting Garcetti, 547 U .S. at 424), focused on whether the speech “was part-and-parcel of his concerns about his ability to properly execute his duties.” Weintraub, 593 F.3d at 203 (internal quotation marks omitted). We further noted that Weintraub's speech took the form of an employee grievance, an avenue unavailable to private citizens. Id . at 203–04 (“Although the lack of a citizen analogue is not dispositive in this case, it does bear on the perspective of the speaker-whether the public employee is speaking as a citizen ․“ (internal citation and quotation marks omitted)).
The inquiry into whether a public employee is speaking pursuant to her official duties is not susceptible to a brightline rule. Courts must examine the nature of the plaintiff's job responsibilities, the nature of the speech, and the relationship between the two. See id. at 201–02. Other contextual factors, such as whether the complaint was also conveyed to the public, may properly influence a court's decision. See id. at 205.

In this case, Ross alleges three instances of protected speech: her reports to Lichtenfeld about improper payments and promotions, her statements to Gargano about the same issues, and her letter to the Board members. The district court concluded that the statements to Gargano were not protected because they were in the nature of an employee grievance, but that Ross's statements to Lichtenfeld and her letter to the Board were entitled to First Amendment protection because in those instances, in the district court's view, she was speaking on a matter of public concern, she went outside the chain of command, and her complaints were not in the nature of an employee grievance. Ross, 755 F.Supp.2d at 474–75. Lichtenfeld contends that, although Ross's speech was on a matter of public concern, it was made pursuant to her duties as a payroll clerk typist and is therefore not protected by the First Amendment. We agree.

Ross testified that her job duties included processing the payroll and making sure pay rates were correct. She stated that if there was a mistake with a pay requisition, her duty was to “bring[ ] it to the appropriate person's attention.” Ross Deposition 64. She specifically noted that she brought many such requisitions to Lichtenfeld's attention. Id. at 65. Ross learned that overtime for Board action people and performance bonuses without Board approval—the cause of most of her individualized complaints—were improper because she was told so by Lichtenfeld and her supervisor. Id. at 89, 95–97. She further stated that she was not able to balance out the payroll without knowing whether certain payments had been approved by the Board. Id. at 100–01. Ross attempts to downplay the importance of her role in the District's payroll system, noting that descriptions of her job consistently refer to it as “clerical.” Appellee's Br. at 19. However, “[f]ormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform.” Garcetti, 547 U.S. at 424–25.
Ross's testimony makes plain that reporting pay irregularities to a supervisor was one of her job duties. She admitted that her responsibilities included reporting mistakes to supervisors. Moreover, she acquired all of the information she relayed to Lichtenfeld in the ordinary course of performing her work, and she was not able to meet her responsibility of balancing the payroll without resolving pay requisition irregularities on at least one occasion. Her reports to Lichtenfeld were part and parcel of her official responsibilities.

Ross urges that she was speaking as a private citizen because she went outside the chain of command by first bringing her concerns to Lichtenfeld instead of her supervisor and then by writing to the Board. However, Ross testified that her duties included bringing payroll irregularities “to the appropriate person's attention,” and went on to say that she frequently brought such issues to Lichtenfeld, implying that reporting to Lichtenfeld as “the appropriate person” was within the purview of her job duties. Ross Deposition 64–65. Moreover, Ross brought her concerns to Lichtenfeld because she believed her supervisor was ignoring them; and she similarly wrote to the Board only when she believed that Lichtenfeld was not acting on her complaints. Taking a complaint up the chain of command to find someone who will take it seriously “does not, without more, transform [her] speech into protected speech made as a private citizen.” Anemone, 629 F.3d at 116.
Ross's assertion in her letter that she was writing “on a personal note” rather than as a District employee does not alter our conclusion. An employee's characterization of her own speech is not dispositive.

Because Ross never attempted to communicate her complaints to the public, she cannot avail herself of the argument that her duties in no way included public revelation of misconduct of district officials that is generally available to the employee who takes the issue public. Cf. Weintraub, 593 F.3d at 205 (where the plaintiff had no such argument as he never communicated with the public).
We emphasize that our holding that Ross's speech was unprotected does not rest on the fact that her speech was made in the workplace as opposed to elsewhere. Speech to a supervisor even in the workplace can be protected as that of a private citizen if it is not made pursuant to the employee's official duties as an employee. Courts must focus their inquiry on the nature of the speech itself and its relationship to the plaintiff's job responsibilities. We also observe that complaints about workplace misconduct, while they may be unprotected by the First Amendment if made as part of the plaintiff's job duties, still may be protected by whistleblower laws or other similar employment codes. See Garcetti, 547 U.S. at 425–26; Ruotolo v. City of N.Y., 514 F.3d 184, 189 n. 1 (2d Cir.2008).

Finally, we note that this circuit's recent holding in Jackler v. Byrne, 658 F.3d 225, does not bear on our case. In Jackler, the plaintiff was a probationary police officer who allegedly witnessed the use of excessive force against a suspect by a fellow officer. That suspect filed a civilian complaint against the officer. At the request of his supervisor, and in accordance with written police procedure, Jackler filed a report corroborating the accusation of excessive force. Id. at 230–31. Jackler's supervisors pressured him to retract the report and falsify his story to protect the offending officer. When Jackler refused, he was not hired as a full-time officer. Id. at 231–32. The panel concluded that Jackler had a cognizable First Amendment claim because, when he refused to file a false report, he was speaking as a citizen.

Jackler involved very different circumstances from this case. The panel emphasized that Jackler had been asked to “retract his truthful statements and make statements that were false,” and determined that “his refusals to accede to those demands constituted speech activity that was significantly different from the mere filing of his initial Report.” Id. at 241. Indeed, if Jackler had made a false statement to the police, he would have violated New York law. Id. at 239. Jackler is therefore plainly distinguishable on its facts. Ross alleges that she suffered retaliation for making affirmative statements of misconduct to her supervisors, not for refusing to make false statements that no misconduct had occurred.

In this case, the speech that prompted Ross's retaliation claim owed its existence to her job duties and was made in furtherance of those duties. As a payroll clerk, she was tasked with reporting pay irregularities to her supervisors, and that is what she did here. Accordingly, her complaints to Lichtenfeld and the Board were not protected by the First Amendment, and Lichtenfeld is entitled to summary judgment.


For the foregoing reasons, the judgment of the district court is REVERSED.
JOHN M. WALKER, JR., Circuit Judge: