Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS100641, David. P. Yaffe, Judge.
Diane Marchant for Plaintiff and Appellant.
Rockard J. Delgadillo, City Attorney, Claudia McGee Henry, Senior Assistant City Attorney, and Gerald M. Sato, Deputy City Attorney, for Defendants and Respondents.
MALLANO, Acting P. J.
Plaintiff, an officer recruit with the Los Angeles Police Department (LAPD), was discharged for insubordination. Specifically, he advised other officer recruits to consult with the police union about a personnel document they did not understand, contrary to the instructions of a superior officer to sign and turn in the document at the end of class. Plaintiff challenged his discharge administratively and lost.
He then filed a petition for a writ of mandate in the trial court, arguing that his advice was protected by the First Amendment, entitling him to reinstatement. The trial court agreed that the First Amendment applied, but ruled that reinstatement was not an available remedy because plaintiff was a probationary, not a tenured, officer.
We conclude that the First Amendment afforded no protection here. The personnel document was distributed during a training class, and the officer recruits were directed to sign and return it. During a class break, some of the recruits asked plaintiff about the document. He had not received or read it because it did not apply to him; he did not discuss its substance with the recruits; and he advised them not to sign or turn it in but to consult with the police union if they did not understand it.
Because such general advice — absent any statement of opinion about the underlying subject matter — did not address a matter of public concern, plaintiff’s speech did not warrant First Amendment protection. Accordingly, the trial court properly denied the petition, and we affirm.
I
BACKGROUND
The following facts are taken from the administrative record and the papers filed in the trial court in connection with the petition for a writ of mandate.
To train police officer recruits, the Los Angeles Police Academy offers a 7-month basic course followed by an 11-month field period, for a total of an 18-month probationary period. After the successful completion of all probationary training, the officer recruit is eligible to receive a “Basic Certificate” from the California Commission on Peace Officer Standards and Training, commonly known as POST. Without the POST certificate, a recruit cannot continue to serve as a peace officer.
For quite some time, the academy had allowed recruits to take more than 24 months to complete the 18-month training if they needed additional time due to an incapacitating illness or injury. Recruits were placed in a “recycle” program until they recovered and were able to resume training.
Penal Code section 832.4, subdivision (b), states, with exceptions not relevant here, “Every peace officer . . . who is employed after January 1, 1988, shall obtain the [POST] basic certificate . . . upon completion of probation, but in no case later than 24 months after his or her employment, in order to continue to exercise the powers of a peace officer after the expiration of the 24-month period.”
LAPD Sergeant Richard Laguna believed that the department’s practice of allowing recruits more than 24 months to complete their training violated the Penal Code. As a consequence, the department sought an opinion on the issue from the Attorney General. Meanwhile, Laguna drafted a two-page document, dated November 18, 2004, addressed to all officer recruits, explaining that they had to comply with the Penal Code and complete their training within 24 months regardless of any illness or injury. If they did not do so, they could not be a peace officer. The document advised recruits to call Laguna if they had any questions. It bore the signatures of the captain of the training division (Terry S. Hara) and the commander of the training group (Paul M. Kim). Following their signatures was a blank signature line for each recruit, preceded by the word, “Acknowledged” and a blank line for the date.
Laguna instructed Officer Grace Kelly, the drill instructor, to distribute the document to the October 2004 class of recruits. As far as Laguna was concerned, the recruits’ signatures were necessary to acknowledge receipt of the document and to indicate their agreement to abide by the new policy.
On November 30, 2004, Officer Kelly distributed the document in class and told the recruits they were to sign, date, and return it. She said the document did not apply to anyone who was already a “recycle” recruit. Plaintiff Nolayan Herdegen, who had initially started with the class of October 2003, was in attendance but was a recycle recruit. He did not receive or read the document and was not asked to sign it. Kelly read the document aloud. Several recruits responded with questions. Kelly said she would get the answers and left the room for about 10 minutes to talk to Laguna. While Kelly was gone, the recruits discussed the document among themselves. Some of them approached Herdegen with questions. He commented briefly. Kelly returned to the room, explained the document in further detail, and then asked the recruits if there were any more questions. There were none. Kelly said, “All right. Everyone needs to sign and date the [document] and turn it in.” She collected all of the documents, or so she thought.
About three months later, Kelly discovered that four or five recruits had not turned in the document. Kelly talked to some of them. One of the recruits said that, during the class, Herdegen had advised her, “Just don’t turn it in and that way the policy won’t apply to you if you get injured.” An investigation followed. Interviews were conducted.
On January 13, 2005, Captain Hara completed a “Complaint Form,” stating that Herdegen had “subverted Department authority by influencing other recruit officers not to sign an approved, official Training Division document.”
In an attached “Letter of Transmittal,” Hara indicated that the department’s investigation had resulted in one allegation of misconduct against Herdegen, namely: “[B]etween October 18, 2004, and January 12, 2005, Police Officer I Nolayan Herdegen . . . while on-duty unnecessarily and improperly advised other recruits not to sign, acknowledge or return an approved Training Division document.” The letter described the results of the investigation, saying: “Although Herdegen denied the allegation, the overwhelming preponderance of testimonial evidence supported the allegation.” Hara “recommended that the Allegation be classified as SUSTAINED.” The letter continued: “As a result of this allegation, it is recommended that the penalty be Termination while on probation.” In explaining the proposed penalty, Hara commented, “Herdegen’s involvement in this incident is . . . part of an ongoing pattern of behavior which clearly portrays a character unsuitable for permanent status with the Los Angeles Police Department.” The letter concluded by noting that Herdegen would complete 18 months of continuous service as of May 16, 2005, at which time he would advance to the rank of Police Officer II.
On April 12, 2005, Captain Hara and Assistant Chief Sharon Papa completed a “Penalty Recommendation,” proposing “termination of probation” as the sanction for Herdegen’s conduct. On May 12, 2005, Chief of Police William Bratton issued a notice of termination, indicating that Herdegen would be discharged as of May 14, 2005. The notice was signed by James McDonnell in his capacity as “Acting Chief of Police.”
Herdegen exercised his right to an administrative appeal. A hearing was held before Captain Jeffrey Greer on August 8, 2005. Laguna, Hara, and Kelly testified about the background of the case and the rationale for the termination.
One officer recruit (N. Halvurian) testified that Herdegen advised some of the recruits, “Figure out what the policy means before you sign it. If you need to, get a lawyer to explain it to you. [The] L.A.P.D., you know, is probably looking out for its best interest rather than ours.” Halvurian continued: “[Herdegen] was basically stating that the policy was bad. It was out to hurt us. He wouldn’t sign it. He advised us, basically, you know, it’s not a good policy, it’s just going to hurt us in the end. He advised us not to sign it until we got, you know, clarification from, you know, a lawyer or something along those lines, and that basically . . . it was a way to eliminate us.”
Another recruit (B. Johnson) recalled that Herdegen was part of a group discussion in which someone recommended that the recruits should consult with the Los Angeles Police Protective League (the union). Herdegen told the recruits that the document did not apply to him because he had “started earlier” in the training program.
A third recruit (S. Obaidee) testified that he asked Herdegen, “What do you think about all this?” and Herdegen replied, “If I were you, I wouldn’t sign it.”
According to another recruit (L. Gonzales), Herdegen advised some members of the class to consult with the union if they had any questions. Herdegen also said: “If you want to sign it, sign it. If you don’t want to sign it, it’s up to you.” The last recruit to testify (J. Ingle) stated that she was sitting in front of Herdegen. “At some point he just got up and said, ‘If you don’t want to sign it, you don’t have to sign it.’”
Herdegen testified last, saying, “I encouraged [the recruits] to seek clarification for the concerns that they had, if they had concerns. That being said, I also advised them that they should not sign a legally binding document before getting satisfactory clarification to their questions.” He suggested they contact the union and encouraged them to use whatever resources they had available. Herdegen told the recruits he had not been given the document because it did not apply to him, and he had not read it; he was a “former recycle.” Herdegen testified, “I never unequivocally stated that these recruit officers should not sign the policy.”
When asked if he thought the change described in the document was good or bad, Herdegen replied: “I had not read the policy. I cannot accurately give any opinion as to the goodness or the badness of the policy if I don’t even know its contents. [T]he fact is that I can’t make — give testimony on what my beliefs were on the policy, because I didn’t read the policy. [¶] . . . [¶] If you’re asking me to make a definitive statement, yes or no, on whether I said that the policy . . . was a good policy or bad policy, I will have to tell you no, because I was not fully aware of the contents of that policy and, therefore, I could not make a reasonable evaluation of whether it was a good or bad policy, Sir.”
Herdegen was also asked if he had made any statements about the policy being used to eliminate recruits. Again, he responded that, because he “wasn’t fully aware of what the contents of the policy were, I cannot make a definitive statement about what my opinion was on the policy itself.” In a follow-up question, Herdegen was asked why Officer Halvurian would attribute such a statement to him. Herdegen replied that Halvurian was expressing her interpretation of something he had said, but she was not quoting him. She was making a statement in her own words. Herdegen had no idea how Halvurian interpreted his words in that way.
After the testimony ended, the parties’ representatives presented closing argument. Herdegen contended that the First Amendment precluded the department from discharging him, while the department argued that the First Amendment did not apply. The hearing was then adjourned.
On September 7, 2005, Captain Greer issued a hearing report, summarizing the testimony of the witnesses, providing an analysis of the issues, and concluding that “the termination of the Appellant was appropriate.” By order dated September 15, 2005, the Chief of Police agreed with Greer’s report and upheld Herdegen’s termination.
On December 2, 2005, Herdegen filed a petition for a writ of administrative mandate against the city and Chief Bratton (Code Civ. Proc., § 1094.5) (collectively the city), seeking to set aside the department’s decision and be reinstated. Herdegen filed a motion in support of the petition, arguing that his discharge violated the First Amendment. The city filed opposition.
The matter was heard on December 20, 2006. The trial court initially stated that the petition would be treated as one for traditional mandate — to determine whether Herdegen had been deprived of an office to which he was entitled (see Code Civ. Proc., § 1085, subd. (a)) — instead of a petition for administrative mandate because the administrative hearing was not required by law (see id., § 1094.5, subd. (a)). After the hearing, the trial court issued a minute order the same day, stating in part: “The facts, which are undisputed, are that petitioner was a trainee enrolled in the Los Angeles Police Academy. His employer, the City of Los Angeles, acting through its police department (LAPD) decided to change its prior policy, which was to extend the 18 month period by which a trainee is required to complete the basic training course given at the academy if a trainee is injured or misses training for some other reason. The LAPD thought that, by extending the length of time that a trainee must complete said training to more than 24 months, the LAPD was violating Penal Code section 832.4(b).
“To implement its new policy the LAPD issued a statement of the change, and it was read to the class of which petitioner was a member on November 30, 2004. The trainees were instructed to acknowledge the policy by signing it. Petitioner advised other members of his class that they should not sign the policy until they consulted with the Los Angeles Police Protective League, the labor union that represents police officers. Five recruits who listened to petitioner’s advice refused to sign the policy statement. A personnel complaint was made against petitioner on January 13, 2005, and his employment was terminated, without any hearing, on May 14, 2005.
“Although the LAPD contends that he was fired for reasons other than the advice that he gave to the other trainees about not signing the policy revision, the court is not persuaded. The fact is that, although petitioner had other shortcomings, he was not fired until he apparently persuaded five of his classmates not to sign the policy revision.”
The trial court found that Herdegen’s speech was protected by the First Amendment because it “concern[ed] the relationship of employees of the LAPD to their employer” and thus involved a matter of “public concern.” Herdegen had a right “to speak on a labor-management issue to his co-employees.” But the court concluded: “Although [Herdegen’s] constitutional rights were violated, he has no right to be reinstated because he was a probationary employee who could be fired at will, for no reason whatsoever.” The petition was denied.
Judgment was duly entered. Herdegen appealed.
II
DISCUSSION
“‘In reviewing a trial court’s judgment on a petition for writ of ordinary mandate, the appellate court applies the substantial evidence test to the trial court’s factual findings, but exercises its independent judgment on legal issues, such as the interpretation of [a constitutional provision].’” (Committee for Responsible School Expansion v. Hermosa Beach City School Dist. (2006) 142 Cal.App.4th 1178, 1184.)
On appeal, both sides aptly agree — contrary to the trial court’s conclusion — that if Herdegen’s termination violated the First Amendment, he is entitled to reinstatement regardless of his status as a probationary officer. (See Mt. Healthy City Board of Ed. v. Doyle (1977) 429 U.S. 274, 283–284 [97 S.Ct. 568]; Ofsevit v. Trustees of Cal. State University & Colleges (1978) 21 Cal.3d 763, 775–776; Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 778.) We therefore turn to the constitutional question.
Herdegen does not contend that his termination violated the right to free speech under the state Constitution. (See Cal. Const., art. I, § 2.)
“The First Amendment protects speech by public employees that touches on matters of public concern. . . . The government as an employer has broader powers respecting its employees’ speech than the government as sovereign has respecting the speech of citizens. . . . Nevertheless, a government agency may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in free speech. . . .
“In determining whether a discharge impermissibly infringed upon the employee’s First Amendment rights, the threshold question is whether the employee’s speech related to a matter of public concern. . . . This question is ‘determined by the content, form and context of a given statement, as revealed by the whole record.’ . . . In applying this test, courts have routinely treated speech which criticizes the substantive operations of the governmental agency as a matter of public concern. (See, e.g., Waters v. Churchill [(1994)] 511 U.S. [661, 674] [summary judgment in favor of public hospital improperly granted, where a conversation for which nurse was terminated allegedly included some statements criticizing a hospital policy which the nurse believed threatened patient care, and the evidence did not establish whether those statements . . . led to the termination]; Pickering v. Board of Education [(1968)] 391 U.S. [563, 572] [teacher could not be terminated for writing letters concerning school funding]; Patrick v. Miller (10th Cir. 1992) 953 F.2d 1240, 1247 [summary judgment properly denied where city finance director alleged termination for opposing discriminatory employment practices]; Vasbinder v. Ambach (2d Cir. 1991) 926 F.2d 1333, 1339 [state educational employee’s alleged termination for contacting the FBI about possible fraud by a contractor actionable]; Manhattan Beach Police Officers v. Manhattan Beach (9th Cir. 1989) 881 F.2d 816, 818–819 [summary judgment properly denied where police officers alleged denial of promotions for criticizing inadequate police department staffing]; McKinley v. City of Eloy (9th Cir. 1983) 705 F.2d 1110, 1111 [valid claim was stated under 42 U.S.C. § 1983 by probationary police officer who alleged sanction for critical statements about pay for police officers and relationship of city and police union].)
“The importance of informing the citizenry of the workings of government underlies the special protection given by the courts to speech by public employees which concerns the public business. As the Supreme Court explained in Waters v. Churchill, supra, “[g]overnment employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions.” (511 U.S. at p. [674]; see also Pickering v. Board of Education, supra, 391 U.S. at pp. 571–572 [‘On such a question [as school funding] free and open debate is vital to informed decision-making by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds . . . should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.’].)
“If it is determined that speech, which an employee alleged caused his termination, did concern matters of public concern, the court must then ‘balance . . . the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, [in] promoting the efficiency of the public services it performs through its employees.’” (Southern Cal. Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, 727–729, some citations omitted, italics added.) But “[w]hen employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.” (Connick v. Myers (1983) 461 U.S. 138, 146 [103 S.Ct. 1684], italics added.) In short, if a public employee does not speak on a matter of public concern, the First Amendment does not apply, and a court does not proceed to the second inquiry, which balances the parties’ competing interests. (See Garcetti v. Ceballos (2006) ___ U.S. ___ [126 S.Ct. 1951, 1958].)
“[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” (San Diego v. Roe (2004) 543 U.S. 77, 83–84 [125 S.Ct. 521].)
“[M]any courts have particularly focused on the extent to which the content of the employee speech was calculated to disclose wrongdoing or inefficiency or other malfeasance on the part of governmental officials in the conduct of their official duties. See, e.g., Daniels v. Quinn, 801 F.2d 687, 690 (4th Cir. 1986) (‘[T]his circuit has held that matters of public concern for these purposes must relate to wrongdoing or a breach of trust, not ordinary matters of internal agency policy.’); Cox v. Dardanelle Public School Dist., 790 F.2d 668, 672 (8th Cir. 1986) (‘The focus is on the role the employee has in advancing the particular expressions: that of a concerned public citizen, informing the public that the state institution is not properly discharging its duties, or engaged in some way in misfeasance, malfeasance or nonfeasance; or merely as an employee, concerned only with internal policies or practices which are of relevance only to the employees of that institution.’); Knapp v. Whitaker, 757 F.2d 827, 840 (7th Cir. [1985]) (In finding that the employee/school teacher’s communications with school board members concerning classroom assignments and personal evaluations was not on a matter of public concern, the court stated that the employee’s speech ‘was not an attempt to inform the public that the administrators in District 150 were failing to discharge their governmental responsibilities,’ and it ‘was not aimed at uncovering a wrongdoing or breach of the public trust.’); McKinley v. City of Eloy, [supra,] 705 F.2d at p. 1114 [] (‘Speech by public employees may be characterized as not of “public concern” when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public’s evaluation of the performance of governmental agencies.’).” (Koch v. City of Hutchinson (10th Cir. 1988) 847 F.2d 1436, 1445–1446; see id. at p. 1446, fn. 17.)
“[T]he speaker’s motivation [is also] helpful in determining public concern.” (Pool v. VanRheen (9th Cir. 2002) 297 F.3d 899, 908; accord, Callaway v. Hafeman (7th Cir. 1987) 832 F.2d 414, 417.) “[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a . . . court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” (Connick v. Myers, supra, 461 U.S. at p. 147; see id. at p. 148 & fn. 8 [employee’s speech reflected personal dissatisfaction with her job transfer and did not seek to inform the public about the performance of the district attorney’s office].) “‘The focus is . . . upon whether the ‘public’ or the ‘community’ is likely to be truly concerned with or interested in the particular expression, or whether it is more properly viewed as essentially a “private” matter between employer and employee.’” (Piver v. Pender County Bd. of Educ. (4th Cir. 1987) 835 F.2d 1076, 1079–1080.)
More recently, the Supreme Court explained: “When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. . . . Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services. . . . Public employees, moreover, often occupy trusted positions in society. When they speak out, they can express views that contravene governmental policies or impair the proper performance of governmental functions.
“At the same time, the Court has recognized that a citizen who works for the government is nonetheless a citizen. The First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens. . . . So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively.” (Garcetti v. Ceballos, supra, 126 S.Ct. at p. 1958, citations omitted.)
“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.” (Garcetti v. Ceballos, supra, 126 S.Ct. at p. 1960.) “[A] contrary rule . . . would commit state and federal courts to a new, permanent, and intrusive role, mandating judicial oversight of communications between and among government employees and their superiors in the course of official business. . . . When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech and its consequences. When, however, the employee is simply performing his or her job duties, there is no warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial intervention in the conduct of governmental operations to a degree inconsistent with sound principles of federalism and the separation of powers.” (Id. at p. 1961.) This limitation on First Amendment rights is, however, narrow in scope: “It relates only to the expressions an employee makes pursuant to his or her official responsibilities, not to statements or complaints . . . that are made outside the duties of employment.” (Ibid.)
As a preliminary matter, we reject the city’s contention that because Herdegen made his comments “pursuant to [his] official duties,” the First Amendment does not apply for that reason alone. (See Garcetti v. Ceballos, supra, 126 S.Ct. at p. 1960.) Herdegen’s position as an officer recruit did not include the “official responsibility” of advising other recruits about what documents to sign or when to consult with the union. Even so, we ultimately conclude on other grounds that the First Amendment affords Herdegen no protection.
Assuming for the sake of argument that the subject matter of the personnel document — reducing the time within which ill or injured recruits can complete training — raised a matter of public concern, the content, form, and context of Herdegen’s speech presented only a matter of private or personal concern because it had “‘no relevance to the public’s evaluation of the performance of [the department].’” (Koch v. City of Hutchinson, supra, 847 F.2d at p. 1446.)
According to his own testimony, Herdegen did not comment substantively on the policy. In fact, he had not read the document, was not fully aware of its contents, and had no opinion on whether it described a change that was good or bad. He neither criticized the department’s operations, nor attempted to inform the public of the “workings of the government.” (Southern Cal. Rapid Transit Dist. v. Superior Court, supra, 30 Cal.App.4th at p. 728.) Nothing he said was of “legitimate news interest.” (San Diego v. Roe, supra, 543 U.S. at p. 84.) His speech was not “calculated to disclose wrongdoing or inefficiency or other [government] malfeasance.” (Koch v. City of Hutchinson, supra, 847 F.2d at p. 1445.) Simply put, Herdegen’s advice was not of “political, social, or other concern to the community.” (Connick v. Myers, supra, 461 U.S. at p. 146.) On the contrary, his advice — do not sign a document until you understand it — was nothing more than a matter of common sense to most people. (Cf. Chico Police Officers’ Assn. v. City of Chico (1991) 232 Cal.App.3d 635, 638–639, 644–647 [article in police union newsletter was protected speech because it addressed competency of police force, departmental mismanagement, and officer safety].)
Further, Herdegen’s speech was made in response to individual inquiries from a handful of officer recruits who did not understand the document and who looked to him for guidance. In other words, he gave them personal advice. Typically, personal matters are not of public concern. (See Koch v. City of Hutchinson, supra, 847 F.2d at pp. 1445–1446; Connick v. Myers, supra, 461 U.S. at p. 148.)
In a similar vein, Herdegen’s speech was made in a classroom — a learning environment — during a break when the instructor was out of the room. He was not addressing the entire class but only a small group of officer recruits. The evidence does not suggest that Herdegen intended his advice to reach beyond the class. His advice was oral, brief, and made on only one occasion. It involved more of a private dispute within the department than a subject the “public” or the “community” was “‘likely to be truly concerned with or interested in.’” (Piver v. Pender County Bd. of Educ., supra, 835 F.2d at p. 1079.)
We realize that our conclusion is based on Herdegen’s testimony — which the trial court credited and is thus substantial evidence — not the testimony of the recruits who said that Herdegen criticized the new policy. But it is Herdegen, not the other recruits, who seeks to invoke the First Amendment. He testified that he made no substantive comments about the document. It would be odd indeed to allow an employee to base a First Amendment claim solely on the testimony of witnesses with whom he disagreed. In essence, Herdegen’s testimony stripped away whatever First Amendment protection his speech may have had according to the other recruits, reducing his comments — whatever they really were — to generic, neutral advice.
Nor can we accept the trial court’s apparent belief that speech referring to a union always merits First Amendment protection. Our review of the content, form, and context of Herdegen’s speech indicates that it did not involve a matter of public concern. The use of a single word — union — as opposed to “attorney” or some other knowledgeable source, does not alter the result. Although Herdegen’s advice may have concerned labor-management relations, not all workplace grievances are of public concern. (See Koch v. City of Hutchinson, supra, 847 F.2d at pp. 1445–1446; Connick v. Myers, supra, 461 U.S. at p. 148.)
In closing, we note: “To presume that all matters which transpire within a government office are of public concern would mean that virtually every remark — and certainly every criticism directed at a public official — would plant the seed of a constitutional case. While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public [agency] to be run as a roundtable for employee complaints over internal office affairs.” (Connick v. Myers, supra, 461 U.S. at p. 149.)
Because Herdegen’s speech did not involve a matter of public concern, the trial court properly denied the petition.
III
DISPOSITION
The judgment is affirmed.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.