Timmins v. Plotkin.
No. 24-1160. 11/3/2025. D.Colo. Judge Hartz. Public Employee—General Counsel—Statements to the Public—First Amendment Retaliation—Employee’s Protected Speech—Scope of Employee’s Duties.
November 3, 2025
Timmins was general counsel and litigation counsel for the Green Mountain Water and Sanitation District (the district), a public entity governed by a Board of Directors (the board). While serving in these roles, Timmins believed that three board members were repeatedly violating open meetings laws, violating court orders in ongoing litigation, signing contracts outside of public meetings, and attempting to hide costs from the public. As relevant here, Timmins spoke about defendants’ alleged wrongdoing with two reporters and several members of the public. She was fired for doing so. Timmins sued the district and the three board members under 42 USC § 1983 for First Amendment retaliation. The district court concluded that Timmins was not entitled to First Amendment protection because she spoke pursuant to her official duties as a public employee, and it dismissed the claim for failure to state a claim.
On appeal, the sole issue was whether Timmins spoke to the press and private citizens pursuant to her official duties. A five-part test derived from Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), and Pickering v. Board of Education, 391 U.S. 563 (1968), is used to evaluate whether a public employer violated the First Amendment by retaliating against an employee. As relevant to this appeal, under the first step of Garcetti/Pickering, the public employee must establish that the protected speech was not made pursuant to the employee’s official duties. The main question under Garcetti is whether the speech at issue is ordinarily within the scope of an employee’s duties, not whether it simply concerns those duties. Here, the complaint does not indicate why a general counsel or litigation attorney for the board would have an official duty to publicly criticize the board, and nothing in the complaint suggests that Timmins’s duties included going outside the chain of command or beyond a lawyer’s customary duties a client. Timmins’s speech to reporters and private citizens may have related to her job, but it was not ordinarily within the scope of her duties. Timmins thus satisfied the first step of Garcetti/Pickering in her complaint.
Defendants asked the Tenth Circuit to affirm the dismissal based either on qualified immunity or on three other elements of the Garcetti/Pickering test. The Tenth Circuit determined that the better course is to remand for the district court to examine the issues in the first instance.
The dismissal was reversed and the case was remanded for further proceedings.