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RICHARD TRUSZ v. UBS REALTY

INVESTORS, LLC, ET AL.

(SC 19323)

Palmer, Zarella, Eveleigh, McDonald, Espinosa, Robinson and

Vertefeuille, Js.

Argued March 24—officially released October 13, 2015

Procedural History

Action to recover damages for the allegedly wrongful

termination of the plaintiff’s employment, and for other

relief, brought to the United States District Court for

the District of Connecticut, where the defendants filed

a motion for summary judgment; thereafter, the court,

Squatrito, J., certified to this court a question of law

regarding the interpretation of General Statutes § 31-

51q.

Wesley W. Horton, with whom were Todd Steigman,

Karen L. Dowd and, on the brief, Jacques J. Parenteau,

for the appellant (plaintiff).

James A. Wade, with whom were Brett J. Boskiewicz

and, on the brief, Thomas J. Donlon, for the appellees (defendants).
Sandra J. Staub, David J. McGuire and Martin B.

Margulies filed a brief for the American Civil Liberties

Union of Connecticut as amicus curiae.

Charles Krich, principal attorney, and Jane Kelleher,

law student intern, filed a brief for the Commission on

Human Rights and Opportunities as amicus curiae.

Daniel A. Schwartz, Christopher T. Parkin and Clarisse N. Thomas filed a brief for Connecticut Business

and Industry Association, Inc., as amicus curiae.
Opinion

PALMER. J. This case comes before us on certification from the United States District Court for the District of Connecticut pursuant to General Statutes § 51-

199b. The certified question that we must answer is:

‘‘Does the rule announced by the [United States]

Supreme Court in Garcetti v. Ceballos, 547 U.S. 410,

[421, 126 S. Ct. 1951, 164 L. Ed. 2d 689] (2006), i.e., ‘that

when . . . employees make statements pursuant to

their official duties, the employees are not speaking

as citizens for [f]irst [a]mendment purposes, and the

[c]onstitution does not insulate their communications

from employer discipline,’ apply to a claim that an

employer violated [General Statutes] § 31-51q1 by subjecting an employee ‘to discipline or discharge on

account of the exercise by such employee of rights

guaranteed by . . . [§§] 3, 4 or 14 of article first of the

[c]onstitution of the state . . . .?’’ (Footnote added.)

We conclude that the answerto this question is ‘‘no.’’ We

further conclude that a modified form of the Pickering/

Connick balancing test applies to speech by a public

employee pursuant to the employee’s official duties

under the state constitution; see Connick v. Myers, 461

U.S. 138, 142, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) (in

determining scope of public employee’s constitutional

right to free speech in workplace, court’s task is to seek

‘‘a balance between the interests of the [employee], as

a citizen, in commenting upon matters of public concern

and the interest ofthe [s]tate, as an employer, in promoting the efficiency of the public services it performs

through its employees’’ [internal quotation marks omitted]); Pickering v. Board of Education, 391 U.S. 563,

568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968) (same); and

that § 31-51q extends the same protection to similar

speech by a private employee. Specifically, we conclude

that, underthe state constitution, employee speech pursuant to official job duties on certain matters of significant public interest is protected from employer

discipline in a public workplace, and § 31-51q extends

the same protection to employee speech pursuant to

official job duties in the private workplace.

The District Court’s certification order sets forth the

following facts that we accept as true for purposes of

responding to the certified question. ‘‘[The defendant

UBS Realty Investors, LLC (UBS Realty)] provides real

estate investment management services to clients, such

as pension funds, public employee retirement systems,

foundations, and private investors. UBS Realty is registered with the Securities and Exchange Commission as

an investment advisor. UBS Realty is a subsidiary of

[the defendant] UBS AG2 and is part of UBS AG’s

[g]lobal [a]sset [m]anagement division. UBS AG is a

corporation whose stock is publicly traded on the New

York Stock Exchange.

‘‘At all times pertinent to this action, the plaintiff,
Richard Trusz, was the head of UBS Realty’s valuation

unit and a [m]anaging [d]irector of UBS Realty. As head

of the valuation unit, [the plaintiff] managed the process

which ultimately resulted in the valuation of properties

held in UBS Realty’s private real estate investment

funds. In early 2008 [the plaintiff] reported to UBS

Realty management what he contended were errors in

the valuation of certain properties held by UBS Realty

in various investment funds. At that time [the plaintiff]

also expressed to UBS Realty management his opinions

that UBS Realty was obligated to correct and disclose

to investors the valuation errors, that UBS Realty was

obligated to return to investors any excess management

fees received as a result of the valuation errors, that

the valuation unit had insufficient staff and resources

to adequately perform its function, that UBS Realty’s

internal controls regarding valuation were inadequate,

that UBS Realty improperly provided preferential treatment to certain investors, and that UBS Realty was

breaching fiduciary duties it owed to its investors.

‘‘UBS Realty’s compliance officer subsequently investigated [the plaintiff’s] contentions. Although the report

issued at the conclusion of this investigation confirmed

the valuation errors reported by [the plaintiff], it concluded that none of the errors rose to a level that

required UBS Realty to restate the values to its investors

or return any management fees that had been paid by

investors. A third-party auditor for some of the funds

managed by UBS Realty also investigated [the plaintiff’s] claims of valuation errors. The auditor confirmed

valuation errors, but concluded that these errors were

not material to the funds’ financial statements and did

not require a restatement of any of the financial statements for the funds.

‘‘[The plaintiff] disagreed with the conclusions of the

compliance officer and the third-party auditor and continued to express to both UBS Realty and UBS AG his

opinion that by not disclosing property valuation errors

to investors and not adjusting management fees in light

of these valuation errors, UBS Realty was violating its

fiduciary, legal, and ethical obligations to its investors.

‘‘[The plaintiff] subsequently filed discrimination and

retaliation complaints with the Connecticut Commission on Human Rights and Opportunities, the United

States Equal Employment Opportunity Commission,

and the United States Occupational Safety and Health

Administration. [The plaintiff] claimed that UBS Realty

discriminated against him based on a disability—a heart

condition—and later retaliated against him by taking

adverse employment actions, culminating in his termination in August, 2008, because he opposed what he

believed was unlawful activity by the defendants and

because he had reported alleged securities laws violations. The defendants dispute [the plaintiff’s] allegations of unlawful activity. [The plaintiff] sued [the
defendants] in federal court in 2009.’’(Footnote added.)

The plaintiff alleged, among otherthings, that the defendants had violated § 31-51q by subjecting him to discipline ‘‘on account of the exercise . . . of rights

guaranteed by . . . [§§] 3, 4 or 14 of article first of the

[c]onstitution of Connecticut.’’

Thereafter, the defendants filed a motion for summary judgment contending that they were entitled to

judgment as a matter of law on the plaintiff’s claim

under § 31-51q.3 Before the court, Squatrito, J.,4 could

rule on that motion, this court issued its decision in

Schumann v. Dianon Systems, Inc., 304 Conn. 585,

598, 43 A.3d 111 (2012), in which we concluded that

the United States Supreme Court’s decision in Garcetti,

holding that speech pursuant to a public employee’s

official job duties was not protected by the first amendment; Garcetti v. Ceballos, supra, 547 U.S. 421 (public

employees who make statements pursuant to their official duties are not speaking as citizens for purposes of

first amendment); applies to claims brought pursuant

to § 31-51q against a private employer that are based

on the first amendment. See Schumann v. Dianon Systems, Inc., supra, 598. In light of our decision in Schumann, the plaintiff filed in the District Court a motion

for conference to discuss new authority in which he

stated that he intended to argue that Garcetti did not

apply to his retaliation claim because he was raising

that claim under the state constitution.5 The District

Court asked the parties to submit briefs on the question

of whether it should certify the issue raised by the

plaintiff to this court. The defendants filed a brief contending that § 31-51q did not apply because the plaintiff’s workplace speech did not relate to matters of

public concern and, therefore, was not constitutionally

protected under either Garcetti or the Pickering/Connick balancing test.6 The defendants also argued, however, that if the District Court were to determine that

the plaintiff’s speech did involve matters of public concern, it should certify the issue to this court. The plaintiff contended in his brief that the requirements for

certification set forth in § 51-199b had been met and

the question of whether the Garcetti standard applies

to the free speech provisions of the state constitution

should be certified to this court, provided that doing

so would not delay proceedings in the District Court.

Thereafter, the District Court issued its order of certification to this court, and we accepted the question of

law previously set forth in this opinion.7

To provide context for our resolution of the certified

question, we briefly review the governing legal principles. ‘‘In Pickering v. Board of Education, [supra, 391

U.S. 568] . . . the court . . . recognized that a government 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. The court then set
forth a general principle governing the constitutionality

of government restrictions on the speech of its employees: in evaluating the constitutionality of government

restrictions on an employee’s speech, a court must

arrive at a balance between the interests of the

[employee], as a citizen, in commenting upon matters

of public concern and the interest of the [s]tate, as

an employer, in promoting the efficiency of the public

services it performs . . . .’’ (Internal quotation marks

omitted.) Schumann v. Dianon Systems, Inc., supra,

304 Conn. 601. ‘‘In Connick v. Myers, supra, 461 U.S.

150, the court added a modification to the general balancing test promulgated in Pickering. Under Connick,

if a government employee’s speech cannot be fairly

characterized as constituting speech on a matter of

public concern, it is unnecessary . . . to scrutinize the

reasons for [his or] her discharge.’’ (Internal quotation

marks omitted.) Schumann v. Dianon Systems, Inc.,

supra, 601. Thus, under the Pickering/Connick balancing test, employee speech in a public workplace is protected from employer discipline if it involves a matter

of public concern and if the employee’s interest in commenting on the matter outweighs the employer’s interest in promoting the efficient performance of public

services.

In Garcetti v. Ceballos, supra, 547 U.S. 418–19, a

majority of the United States Supreme Court noted ‘‘the

practical difficulties of applying the principles articulated in Pickering and Connick . . . [and] then

observed that ‘[g]overment 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.’ ’’ (Citation omitted.) Schumann v. Dianon Systems, Inc., supra, 304 Conn. 602.

‘‘The court emphasized that [u]nderlying [its] cases has

been the premise that while the [f]irst [a]mendment

invests public employees with certain rights, it does

not empower them to constitutionalize the employee

grievance. [Garcetti v. Ceballos, supra] 420, quoting

Connick v. Myers, supra, 461 U.S. 154. Thus, the court

concluded that, when public employees make statements pursuant to their official duties, the employees

are not speaking as citizens for [f]irst [a]mendment

purposes, and the [c]onstitution does not insulate their

communications from employer discipline. Garcetti v.

Ceballos, supra, 421 . . . .’’8

(Citation omitted; footnotes omitted; internal quotation marks omitted.) Schuman v. Dianon Systems, Inc., supra, 603. The court in

Garcetti reasoned 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. It

simply reflects the exercise of employer control over

what the employer itself has commissioned or created.’’

Garcetti v. Ceballos, supra, 421–22. Accordingly, under

Garcetti, a court will subject the employee’s speech

to the Pickering/Connick balancing test only if it first

determines that the employee was not speaking pursuant to his or her official duties; if the employee was

speaking as an employee rather than as a citizen, the

speech is not protected by the first amendment.

In Cotto v. United Technologies Corp., 251 Conn. 1,

8, 738A.2d 623 (1999), a majority of this court concluded

that § 31-51q prohibits a private employer from disciplining an employee for engaging in constitutionally

protected speech not only when the speech occurs outside the workplace, but also when it occurs in the workplace.9 Thereafter, in Schumann v. Dianon Systems,

Inc., supra, 304 Conn. 610–11, we addressed a claim by

an employee against his private employer pursuant to

§ 31-51q alleging that the employer had unlawfully disciplined him for exercising his first amendment rights in

the workplace. The plaintiff in Schumann claimed that

‘‘Garcetti, which involved a public employer-employee

relationship, should not be applied to the private workplace’’ so as to limit the scope of employee speech

that is protected by § 31-51q. Id., 598. The defendant

contended that, to the contrary, § 31-51q applied only

to speech by a private employee that would be protected

from employer discipline in a public workplace under

Garcetti. Id., 597–98. This court agreed with the defendant.10 Id., 598. We did not reach the plaintiff’s claim in

Schumann that the state constitution provided broader

protection than Garcetti because the plaintiff had failed

to raise the issue in the trial court and, even if the

issue had been properly before us, the plaintiff’s speech

would not have been protected under the broader Pickering/Connick balancing test that the plaintiff advocated. Id., 619. The state constitutional issue that we

were not required to decide in Schumann is now

squarely before us.

Before considering the merits of the certified question, however, we must first address a threshold issue.

The defendants claim that this court in Cotto v. United

Technologies Corp., supra, 251 Conn. 1, ‘‘left open’’ the

question of whether any speech in the private workplace is constitutionally protected, and they contend

that it is not. The defendants further contend that,

because § 31-51q applies only to constitutionally protected speech, no § 31-51q claim arising from speech

in the workplace is possible. Contrary to the defendants’

claim, however, Cotto clearly held that at least some

employee speech in the workplace is constitutionally

protected. See id., 8 (‘‘§ 31-51q confirms the legislature’s

intent to provide coverage for the exercise of constitutional rights at a private as well as at a public workplace’’ [emphasis added]). Otherwise, § 31-51q would
not protect it. See General Statutes § 31-51q (employer

may not subject employee to discipline ‘‘on account of

the exercise by such employee of rights guaranteed by

the first amendment . . . or [§§] 3, 4 or 14 of article

first of the [c]onstitution of the state’’). Indeed, there

was no suggestion to the contrary, either by the defendant in Cotto or by Justice Borden in his concurring

and dissenting opinion in that case. Specifically, Justice

Borden did not argue that employee speech in a private

workplace was not constitutionally protected, that is,

that it could be prohibited or punished by the government at will, but only that interference with such speech

by a private employer did not violate the employee’s

constitutional rights. Cotto v. United Technologies

Corp., supra, 26; but see footnote 9 of this opinion.

Moreover, nothing in Pickering, Connick or Garcetti

supports the proposition that speech in the workplace,

whether public or private, generally enjoys less first

amendment protection than speech elsewhere. Rather,

the United States Supreme Court emphasized in Connick that even speech by an employee on personal and

private matters enjoys first amendment protection in

the workplace, in the sense that such speech cannot

be lawfully prohibited or punished by the government.

See Connick v. Myers, supra, 461 U.S. 147 (‘‘We in no

sense suggest that speech on private matters falls into

one of the narrow and well-defined classes of expression which carries so little social value, such as obscenity, that the [s]tate can prohibit and punish such

expression by all persons in its jurisdiction. . . . For

example, an employee’s false criticism of his employer

on grounds not of public concern may be cause for his

discharge but would be entitled to the same protection

in a libel action accorded an identical statement made

by a man on the street.’’ [Citations omitted.]). The court

also emphasized that it was holding ‘‘only that when 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 federal 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.’’ Id. In other words,

although workplace speech on private matters is protected by the first amendment to the same extent that

it is protected elsewhere insofar that it cannot be punished or prohibited by the government acting in its role

as a lawmaker, a public employer nevertheless may

discipline the employee for such speech in its role as

an employer, subject to certain limitations.

We do not suggest that, because all speech in the

workplace is constitutionally protected to the same

extent as speech elsewhere, the protection provided to

the speech of public employees by the United States

Supreme Court’s decisions in Pickering, Connick and

Garcetti was based on something other than first
amendment principles. To the contrary, the court has

drawn the line between constitutionally protected

speech that is also protected from discipline by a public

employer and constitutionally protected speech that

may subject the employee to employer discipline by

analyzing ‘‘the hierarchy of [f]irst [a]mendment values

. . . .’’ (Internal quotation marks omitted.) Id., 145. The

court concluded in Connick that, because certain

speech is low in the hierarchy of constitutionally protected speech, the first amendment does not protect it

from discipline by a public employer. Id., 145–47. Only

in that special and narrow sense, however, may it be

said that such speech is not constitutionally protected.11

Although we recognize that this distinction may seem

somewhat technical, making the distinction is

important in order to avoid the type of confusion into

which the defendants in the present case appear to

have fallen, and also to avoid any suggestion that the

government, acting as a lawmaker, has greater leeway

to regulate speech in the workplace than it has to regulate speech in other locales. Because it is undisputed

that § 31-51q was intended to prevent interference by

a private employer with the constitutionally protected

speech of its employees, and because employee speech

in a private workplace is constitutionally protected to

the same extent that it is protected in other locales, in

the sense that the government cannot prohibit or punish

it, we reject the defendants’ claim that ‘‘no § 31-51q

claim is possible’’ based on employee speech in a private workplace.12

We note, however, that this court held in Schumann

v. Dianon Systems, Inc., supra, 304 Conn. 607–608, that

§ 31-51q was not intended to confer on employees in the

private sector a broader right to be free from employer

discipline on the basis of speech in the workplace than

the constitutionally based right enjoyed by employees

in the public sector, and the plaintiff in the present case

has not asked us to reconsider that decision. See id.,

607 (‘‘[w]e disagree with those cases holding Garcetti

inapplicable in the private sector because of theirincongruous effect of giving private sector employees greater

workplace free speech rights than those afforded to

their public sector counterparts’’). In other words, we

concluded in Schumann that any limitations on the first

amendment right of employees in a public workplace

to be free from discipline on the basis of their speech

also apply to the speech rights of employees in a private

workplace under § 31-51q. We can perceive no reason,

and the plaintiff does not contend, that the same principle should not apply to speech rights under the state

constitution. The defendants contend, however, that

the scope of the right of an employee in a private workplace to be free from employer discipline based on

speech pursuant to § 31-51q is narrower than the analogous constitutionally based right of a public employee

in some respects. Accordingly, the questions that we
must answer are: (1) What is the scope of the protection

afforded by the free speech provisions of the state constitution to a public employee’s speech in the workplace?; and (2) Is the protection afforded by § 31-51q

to an employee’s speech in a private workplace coextensive with or narrower than the protection afforded by

the speech provisions of the state constitution to speech

by an employee in a public workplace?13

I

We first address the scope of a public employee’s

right to be protected from employer discipline on the

basis of workplace speech under the speech provisions

of the state constitution. The plaintiff contends that the

free speech provisions of the state constitution provide

broader protection to the speech of public employees

than does the first amendment. Specifically, the plaintiff

contends that the flexible Pickering/Connick formula,

and not the bright line rule of Garcetti, applies to workplace speech by a public employee under the state constitution. We conclude that the state constitution

incorporates a slightly modified form of the Pickering/

Connick test.

‘‘It is [well established] that federal constitutional

and statutory law establishes a minimum national standard for the exercise of individual rights and does not

inhibit state governments from affording higher level

of protection for such rights. . . . State v. Geisler, 222

Conn. 672, 684, 610 A.2d 1225 (1992). In determining

the contours of the protections provided by our state

constitution, we employ a multifactor approach that we

first adopted in Geisler. The factors that we consider

are: (1) the text of the relevant constitutional provisions; (2) related Connecticut precedents; (3) persuasive federal precedents; (4) persuasive precedents of

other state courts; (5) historical insights into the intent

of [the] constitutional [framers]; and (6) contemporary

understandings of applicable economic and sociological norms.’’ (Internal quotation marks omitted.) State

v. Kelly, 313 Conn. 1, 14, 95 A.3d 1081 (2014). We now

turn to these factors.

A

We first address the text of the operative constitutional provision. Article first, § 4, of the Connecticut

constitution provides: ‘‘Every citizen may freely speak,

write and publish his sentiments on all subjects, being

responsible for the abuse of that liberty.’’ Article first,

§ 5, of the Connecticut constitution provides: ‘‘No law

shall ever be passed to curtail or restrain the liberty of

speech or of the press.’’ Finally, article first, § 14, of the

Connecticut constitution provides: ‘‘The citizens have

a right, in a peaceable manner, to assemble for their

common good, and to apply to those invested with the

powers of government, for redress of grievances, or

other proper purposes, by petition, address or remon-
strance.’’

This court previously has held that because, unlike

the first amendment to the federal constitution: (1) article first, § 4, of the Connecticut constitution includes

language protecting free speech ‘‘on all subjects’’; (2)

article first, § 5, of the Connecticut constitution uses the

word ‘‘ever,’’ thereby providing ‘‘additional emphasis to

the force of the provision’’; (internal quotation marks

omitted) State v. Linares, 232 Conn. 345, 381, 655 A.2d

737 (1995); and (3) article first, § 14, of the Connecticut

constitution provides a right to seek redress for grievances by way of ‘‘remonstrance,’’ and therefore ‘‘sets

forth free speech rights more emphatically than its federal counterpart’’; (internal quotation marks omitted)

State v. Linares, supra, 381; these textual differences

‘‘warrant an interpretation separate and distinct from

that of the first amendment.’’ (Internal quotation marks

omitted.)Id. The text of article first, § 4, of the Connecticut constitution providing that citizens of this state are

free to speak ‘‘on all subjects, being responsible for the

abuse of that liberty’’; (emphasis added); is particularly

relevant in the present case. This broad and encompassing language supports the conclusion that the state

constitution protects employee speech in the public

workplace on the widest possible range of topics, as

long as the speech does not undermine the employer’s

legitimate interest in maintaining discipline, harmony

and efficiency in the workplace. See Ozols v. Madison,

United States District Court, Docket No. 3:11cv1324

(SRU) (D. Conn. August 20, 2012) (‘‘[t]he breadth of

the Connecticut [c]onstitution’s language suggests that

a citizen’s speech is protected, even when the speech

is about her employment’’). This standard is more consistent with the Pickering/Connick standard than with

Garcetti. Compare Pickering v. Board of Education,

supra, 391 U.S. 568 (employee has right to comment on

matters of public interest that must be weighed against

employer’s interest in promoting efficient services); id.,

570 (noting employer’s interest in maintaining discipline, harmony, personal loyalty and confidence in

workplace), with Garcetti v. Ceballos, supra, 547 U.S.

423–24 (employee’s speech pursuant to his or her official job duties is not constitutionally protected, even if

it involves matter of public concern and employee’s

interest in commenting on matter outweighs employer’s

interest in performing its services efficiently). It is

apparent, therefore, that the text of article first, § 4,

supports the plaintiff’s position that the Pickering/Connick balancing test provides the proper standard under

the state constitution.

In support of their claim to the contrary, the defendants contend that, because article first, § 4, of the

Connecticut constitution provides that ‘‘[e]very citizen,’’ and not every person, ‘‘may freely speak, write and

publish his sentiments on all subjects,’’ the provision

is narrower than the first amendment. They further
contend that, when a person is speaking pursuant to

his or her official job duties, the person is not speaking

as a citizen and, therefore, the speech is not protected

under this provision. Cf. Garcetti v. Ceballos, supra, 547

U.S. 421 (‘‘when public employees make statements

pursuant to their official duties, the employees are not

speaking as citizens for [f]irst [a]mendment purposes’’);

Connick v. Myers, supra, 461 U.S. 146 (‘‘[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

[f]irst [a]mendment’’). The defendants’ argument, however, proves too much. Taken to its logical conclusion,

the defendants’ interpretation would permit the state

to regulate all speech on personal or private matters

that is not made in the speaker’s capacity as a citizen,

regardless of where the speech occurred. There is no

evidence that the constitutional framers intended to

impose such severe limits on the speech rights of the

state’s citizenry. Moreover, the defendants’ interpretation would render article first, § 4, internally inconsistent, as it would prevent citizens from speaking freely

‘‘on all subjects’’; (emphasis added) Conn. Const., art.

1, § 4; including those subjects that do not involve the

speaker’s role as a citizen. For these reasons, we reject

the defendants’ contention.

B

We next consider the second Geisler factor, the holdings and dicta of this court and the Appellate Court.

As we have indicated, this court held in State v. Linares,

supra, 232 Conn. 381, that the free speech provisions

of the state constitution have ‘‘an interpretation separate and distinct from that of the first amendment’’;

(internal quotation marks omitted); and that ‘‘the framers of our constitution contemplated vibrant public

speech, and a minimum of governmental interference

. . . .’’ Id., 386. In Linares, this court rejected the rigid

‘‘federal forum analysis, which affords the most rigorous protection of speech only at ‘traditional’ forums

and narrowly defines ‘traditional’ to exclude modern

public gathering places often otherwise compatible

with public expression’’ in favor of a more ‘‘flexible

approach,’’ requiring a ‘‘case-by-case balancing of the

right to free speech against the competing interest of

preventing unreasonable interference with the ‘normal

activity’ of a particular place.’’ Id., 382. This court reasoned that ‘‘this flexible approach prohibits the government from unilaterally and unnecessarily limiting

speech . . . .’’ Id., 386. Similarly, in the present case,

the sensitive, case-by-case balancing test set forth in

Pickering and Connick would minimize unilateral governmental interference with employee speech that is

compatible with the legitimate interests of employers

more effectively than the rigid Garcettirule, which cate-
gorically denies constitutional protection to any speech

by an employee in his or her official capacity,regardless

of whether the speech unduly burdens the employer.

Moreover, as the Appellate Court has observed, ‘‘Connecticut’s appellate courts have not been hesitant to

continue to grant its citizens the same protection as

did the ‘old’ federal decisions, when the United States

Supreme Court has retreated from a previously enunciated broad protection reading of [a federal constitutional provision].’’14 State v. DeFusco, 27 Conn. App.

248, 256, 606 A.2d 1 (1992), aff’d, 224 Conn. 627, 620

A.2d 746 (1993). This willingness to adhere to an old

rule that provides broader protection than the new rule

is consistent with the principle that ‘‘our state constitution is an instrument of progress, it is intended to stand

for a great length of time and should not be interpreted

too narrowly or too literally so that it fails to have

contemporary effectiveness for all of our citizens.’’

(Internal quotation marks omitted.) State v. Linares,

supra, 232 Conn. 382. When a constitutional rule has

been in place for a long period of time, a sudden contraction ofthe rule may well violate the entrenched constitutional expectations of the state’s citizenry.15 Cf. State v.

DeFusco, supra, 256 (observing that, in State v. Marsala,

216Conn. 150, 579A.2d 58 [1990],this ‘‘courtinterpreted

our state constitution to allow the maintenance of a

constitutional status quo that had existed for our citizens for at least twenty-nine years’’). We note that Pickering was decided in 1968, Connick was decided in 1983

and Garcetti was decided in 2006. Thus, the citizens of

this state enjoyed the benefit of the Pickering balancing

test for thirty-eight years. Accordingly, we conclude

that the precedents of this court and the Appellate Court

support the plaintiff’s position in the present case.16

C

We next address the third Geisler factor, persuasive

federal precedent. As we have explained, the primary

federal precedents consist of the United States Supreme

Court’s decisions in Pickering, Connick and Garcetti.

For the following interrelated reasons, we find Pickering and Connick to be more persuasive than Garcetti.

First, we believe that the distinction that the court

made in Garcetti between an employee’s speech on a

matter of public concern in the speaker’s role as citizen

and an employee’s speech on a matter of public concern

pursuant to official duties is somewhat artificial and

potentially difficult to apply. See Ozols v. Madison,

supra, United States District Court, Docket No.

3:11cv1324 (SRU) (concluding that Garcetti does not

apply to § 31-51q claims under state constitution

because ‘‘there is something strangely arbitrary about

a judicial inquiry into when a citizen is acting as a

citizen’’). As Justice Souter pointed out in his dissenting

opinion in Garcetti, under the rule adopted by the

majority in that case, a ‘‘schoolteacher is protected
when complaining to the principal about hiring policy,’’

because hiring is not within the duties of a teacher, but

‘‘a school personnel officer would not be [protected] if

he protested that the principal disapproved of hiring

minority job applicants.’’ Garcetti v. Ceballos, supra,

547 U.S. 430; see also id., 429 (Souter, J., dissenting),

citing Madison, Joint School District No. 8 v. Wisconsin Employment Relations Commission, 429 U.S. 167,

177 n.11, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976) (schoolteacher who spoke at school board meeting about pending labor negotiations between board and teachers’

union spoke ‘‘both as an employee and a citizen exercising [f]irst [a]mendment rights’’); Garcetti v. Ceballos,

supra, 427 (Stevens, J., dissenting)(‘‘[P]ublic employees

are still citizens while they are in the office. The notion

that there is a categorical difference between speaking

as a citizen and speaking in the course of one’s employment is quite wrong.’’). Justice Souter also stated in his

dissenting opinion that this distinction ‘‘seems stranger

still in light of the majority’s concession of some [f]irst

[a]mendment protection when a public employee

repeats statements made pursuant to his duties but in

a separate, public forum or in a letter to a newspaper.’’

Garcetti v. Ceballos, supra, 430 n.1. He argued that

‘‘separating the citizen’s interest from the employee’s

interest ignores the fact that the ranks of public service

include those who share the poet’s ‘object . . . to unite

[m]y avocation and my vocation’; these citizen servants

are the ones whose civic interest rises highest when

they speak pursuant to their duties, and these are

exactly the ones government employers most want to

attract.’’ (Footnote omitted.) Id., 432 (Souter, J., dissenting). Finally, Justice Souter observed in his dissent

that ‘‘public employees are often the members of the

community who are likely to have informed opinions as

to the operations of their public employers, operations

which are of substantial concern to the public. Were

they not able to speak on these matters, the community

would be deprived of informed opinions on important

public issues. . . . This is not a whit less true when

an employee’s job duties require him to speak about

such things: when, for example, a public auditor speaks

on his discovery of embezzlement of public funds, when

a building inspector makes an obligatory report of an

attempt to bribe him, or when a law enforcement officer

expressly balks at a superior’s order to violate constitutional rights he is sworn to protect.’’ (Citation omitted;

internal quotation marks omitted.)Id., 433. We generally

find Justice Souter’s argument persuasive.

Second, and relatedly, although Garcetti sought to

justify the adoption of a categorical rule on the ground

that a more flexible test ‘‘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’’; id., 423;
Garcetti has merely created new uncertainties that will

require judicial resolution. Specifically, the court in

Garcetti did not provide any clear guidance on what

speech will be found to be ‘‘pursuantto officialresponsibilities,’’ but merely noted that ‘‘[t]he proper inquiry is

a practical one.’’ Id., 424; see also C. Rhodes, ‘‘Public

Employee Speech Rights Fall Prey to an Emerging Doctrinal Formalism,’’ 15 Wm. & Mary Bill Rts. J. 1173, 1193

(2007) (‘‘the [c]ourt [in Garcetti] has merely shifted the

uncertainty to the scope of the underlying categorization’’); C. Rhodes, supra, 1194–98 (discussing conundrums that arise when attempting to apply ‘‘ ‘practical

inquiry’ ’’ standard under Garcetti). Not surprisingly,

courts have struggled with this issue. See Weintraub

v. Board of Education, 593 F.3d 196, 203 (2d Cir.) (concluding that teacher who filed grievance to complain

about supervisor’s failure to discipline student who

repeatedly threw books at teacher was speaking pursuant to official duties ‘‘even though [such speech] is not

required by, or included in, the employee’s job description or in response to a request by the employer’’

because speech ‘‘was part-and-parcel of his concerns

about his ability to properly execute his duties’’[internal

quotation marks omitted]), cert. denied, 562 U.S. 995,

131 S. Ct. 444, 178 L. Ed. 2d 344 (2010); id., 205 (Calabresi, J., dissenting) (arguing that Garcetti ‘‘lends itself

to multiple interpretations, and the majority’s decision

to construe it broadly . . . while a possible reading,

is not compelled by anything in the Supreme Court’s

opinion’’); Davis v. McKinney, supra, 518 F.3d 314

(under Garcetti, court is required to analyze ‘‘separately

each aspect of a communication with multiple topics

and recipients’’ to determine whether each aspect of

speech was pursuant to official job duties); Davis v.

McKinney, supra, 315 (employee speech ‘‘directed

within the employee’s chain of command is not protected,’’ but speech to fellow employee outside chain

of command is protected). Accordingly, we are not persuaded that Garcetti’s purported bright line rule

reduces the need for judicial oversight of workplace

disputes.

Third, we are persuaded that ‘‘Garcetti’s reasoning

. . . turned the Pickering/Connick test on its head by

privileging employment status over the subject matter

of public employee speech.’’ S. Nahmod, ‘‘Public

Employee Speech, Categorical Balancing and § 1983: A

Critique of Garcetti v. Ceballos,’’ 42 U. Rich. L. Rev.

561, 573 (2008). As we have explained, in Pickering

and Connick, the court focused on the place of the

employee’s speech in the ‘‘the hierarchy of [f]irst

[a]mendment values . . . .’’ (Internal quotation marks

omitted.) Connick v. Myers, supra, 461 U.S. 145. If the

speech occupied a high rung in that hierarchy, it was

protected. In contrast, Garcettifocuses on ‘‘the employee’s [f]irst [a]mendment status. If the speech is required

by the job, the public employee loses his status as a
citizen with [f]irst [a]mendment protection against

employer discipline . . . .’’ S. Nahmod, supra, 574. This

is so even if the speech has the highest first amendment

value because it involves a matter of great public concern, and even if the speech imposed little burden on

the employer’s legitimate interests. See, e.g., Davis v.

McKinney, supra, 518 F.3d 315–16 (employee’s speech

to supervisor expressing concerns about inadequate

response to employee’s investigation into fellow

employees’ use of workplace computers to access pornography, possibly including child pornography, not

protected from employer discipline under Garcetti);

Morales v. Jones, 494 F.3d 590, 593–94, 597 (7th Cir.

2007) (police officer’s statement to fellow police officer

that deputy police chief had harbored felon not protected because first police officer had official duty to

apprise second police officer of information pertinent

to investigation; second police officer’s statement to

district attorney about deputy chief’s harboring felon

not protected because second police officer had duty

to assist district attorney by providing details of investigation), cert. denied, 522 U.S. 1099, 128 S. Ct. 905, 169

L. Ed. 2d 729 (2008); see also Morales v. Jones, supra,

598 (concluding that first police officer’s deposition

testimony regarding deputy chief was protected and

recognizing ‘‘the oddity of a constitutional ruling in

which speech said to one individual may be protected

under the [f]irst [a]mendment, while precisely the same

speech said to another individual is not protected’’);

compare Lane v. Franks, U.S. , 134 S. Ct. 2369,

2378 n.4, 2380, 189 L. Ed. 2d 312 (2014) (holding that

truthful sworn testimony in court given outside job

duties is protected, but declining to address question

whether truthful sworn testimony pursuant to employee’s ordinary job duties would be protected). We conclude that the flexible Pickering/Connick balancing test

is preferable to Garcetti’s categorical rule in this context. See C. Rhodes, supra, 15 Wm. & Mary Bill Rts. J.

1192 (‘‘[p]ublic employee speech cases defy simple rulebased categorization because of the almost limitless

circumstances in which they arise’’).

Fourth, because employee speech to persons outside

the workplace is potentially protected under Garcetti

even if it involves the employee’s official duties, Garcetti creates a perverse incentive for public employees

to bring their work-related concerns to such persons

before trying to resolve them internally.17 See Garcetti

v. Ceballos, supra, 547 U.S. 423–24 (‘‘Employees who

make public statements outside the course of performing their official duties retain some possibility of

[f]irst [a]mendment protection because that is the kind

of activity engaged in by citizens who do not work for

the government. The same goes for writing a letter to

a local newspaper . . . .’’ [Citations omitted.]); see also

Davis v. McKinney, supra, 518 F.3d 315–16 (employee’s

speech to supervisor complaining of inadequate
response to employee’s investigation revealing use of

workplace computers to view pornography not protected, while employee’s complaints to Federal Bureau

of Investigation about possible use of computers to

view child pornography were protected);18 P. Secunda,

‘‘Garcetti’s Impact on the First Amendment Speech

Rights of Federal Employees,’’ 7 First Amend. L. Rev.

117, 127 (2008–2009) (‘‘[t]he moral of the Garcetti story

appears to be to go directly to an external agency, do

not pass [g]o, and certainly do not attempt to resolve

internally’’).

Finally, although we recognize that public employers

have an important interest in ensuring that ‘‘their

employees’ official communications are accurate, demonstrate sound judgment and promote the employer’s

mission’’; (internal quotation marks omitted) Garcetti

v. Ceballos, supra, 547 U.S. 434 (Souter, J., dissenting);

we are persuaded by Justice Souter’s argument that

this interest can be adequately protected by applying

a slightly modified Pickering test, under which the

employee could prevail only if ‘‘he speaks on a matter

of unusual importance and satisfies high standards of

responsibility in the way he does it.’’19 Id., 435. Specifically, Justice Souter proposed that ‘‘only comment on

official dishonesty, deliberately unconstitutional action,

other serious wrongdoing, or threats to health and

safety can weigh out in an employee’s favor’’ when an

employee is speaking pursuant to official job duties. Id.

Thus, under Justice Souter’s proposed standard, speech

pursuant to an employee’s official duties regarding, for

example, a mere policy disagreement with the employer

would not be protected, even if it pertained to a matter

of public concern and had little effect on a legitimate

employer interest.20

Because we find Pickering and Connick to be more

persuasive than Garcetti, we conclude that the weight

of persuasive federal precedent favors a broader reading of the free speech provisions of the state constitution than of the first amendment.

D

We next address the fourth Geisler factor, persuasive

sister state decisions. The defendants point out that the

three state courts that have considered the issue that

is before us have concluded that Garcetti applies to

claims underthe respective state constitution. See Kaye

v. Board of Trustees, 179 Cal. App. 4th 48, 101 Cal. Rptr.

3d 456 (2009); Newell v. Runnels, 407 Md. 578, 967 A.2d

729 (2009); Gilbert v. Flandreau Santee Sioux Tribe,

725 N.W.2d 249 (S.D. 2006).

We do not find these cases persuasive. In Kaye v.

Board of Trustees, supra, 179 Cal. App. 4th 57–58, the

court concluded the relevant state constitutional provision21 was not broader than the first amendment in this

context because Garcetti did not narrow the scope of
protected speech in the workplace and the case was

not ‘‘illogical, unpersuasive or incompatible with its

prior precedents.’’ For the reasons set forth in part I C

of this opinion, we disagree with this conclusion. In

Newell v. Runnels, supra, 407 Md. 608, the court merely

stated conclusorily that the speech protections provided by the Maryland constitution22 are ‘‘generally

‘coextensive’ with the protections accorded by the

[f]irst [a]mendment.’’ There is no such general presumption in this state. Similarly, the court in Gilbert v. Flandreau Santee Sioux Tribe, supra, 725 N.W.2d 258, stated

that the majority of states with constitutional free

speech provisions like South Dakota’s23 ‘‘have interpreted their state constitutional free speech provisions as

coextensive with their federal counterparts.’’ The court

did not analyze Garcetti or compare the holding and

reasoning of that case to the holdings and reasoning

of the United States Supreme Court in Pickering and

Connick. These cases, therefore, provide little, if any,

support to the defendants’ position in the present case.

E

We next consider the fifth Geisler factor, historical

insights into the intent of the constitutional framers.

This court previously has recognized that ‘‘our constitution’s speech provisions reflect a unique historical experience and a move toward enhanced civil liberties,

particularly those liberties designed to fosterindividuality. . . . This historical background indicates that the

framers of our constitution contemplated vibrant public

speech, and a minimum of governmental interference

. . . .’’ (Citation omitted; internal quotation marks

omitted.) State v. Linares, supra, 232 Conn. 385–86.

Thus, this factor supports the conclusion that, when

employee speech will not unduly interfere with a public

employer’s interests in promoting efficient services, in

maintaining discipline, harmony, personal loyalty and

confidence in the workplace and in setting official policy within the limits of the law, the mere fact that the

employee was speaking pursuant to his or her official

duties should not subject the employee to discipline.

F

Finally, we consider the sixth Geisler factors, contemporary understandings of applicable economic and

sociological norms. This factor has significant overlap

with the first Geisler factor, the persuasiveness of the

United States Supreme Court’s decision in Pickering,

Connick and Garcetti. Specifically, we noted in part I

A of this opinion that, by eliminating first amendment

protection for employee speech pursuant to official job

duties, even if the speech is on a matter of public concern and places little burden on the employer, Garcetti

reduced the likelihood that public employees would

speak to their employers regarding corrupt practices,

threats to the public safety or other illegal or dangerous

workplace practices. Thus, the persons who are in the
best position to know about corrupt or dangerous practices by public entities face the prospect of discipline

or discharge if they bring such practices to the attention

of their employers. Moreover, Garcetti created an

incentive for public employees to raise their concerns

outside the workplace in the first instance. Although

public employees certainly have the right to raise their

concerns externally, we can discern no public policy

that would be advanced by requiring them to do so.

Finally, the public policy expressed by § 31-51q is that

employees in this state should have the right to speak

freely on all subjects, even in the workplace, as long

as their speech does not ‘‘substantially or materially

interfere with the employee’s bona fide job performance

or the working relationship between the employee and

the employer . . . .’’ General Statutes § 31-51q. Accordingly, we conclude that these public policy factors

weigh in favor of the plaintiff’s position.

The defendants contend, however, that other public

policy considerations weigh strongly in favor of

applying the Garcetti standard to claims under the state

constitution. First, they contend that public employers

have the right to control their employees’ official job

related speech so that their communications are accurate and promote the employer’s mission. Under the

standard that Justice Souter articulated in his dissenting

opinion in Garcetti, however; see part I C of this opinion; inaccurate employee speech or employee speech

that undermines a legitimate employer policy or mission would not be protected. Although employee speech

that undermines a corrupt or dangerous employer mission would be protected, we have concluded that this

fact weighs against adopting the Garcetti standard as

the state constitutional standard.

Second, relying on our decision in Schumann, the

defendants contend that applying Garcetti would avoid

a clash of employee and employer speech rights. See

Schumann v. Dianon Systems, Inc., supra, 304 Conn.

610 (‘‘[a]pplying Garcetti to federal constitutional

claims brought under § 31-51q keeps courts from the

constitutionally untenable task of, in essence, having

to choose sides in a work-related viewpoint dispute

between two private actors’’); see also Cotto v. United

Technologies Corp., supra, 251 Conn. 30 (Borden, J.,

concurring and dissenting) (‘‘interpreting [§ 31-51q] to

apply to private workplace conduct could . . . bring

two competing sets of expressive rights into conflict,

and therefore places the state, in the form of the courts,

on one side of that contest’’). The question that we were

addressing in Schumann, however, is whether Garcetti

limited the scope of employee speech in the private

workplace that was protected by § 31-51q or, instead,

as the plaintiff in that case claimed, § 31-51q applied to

all such speech that is protected by the first amendment

in the sense that the government cannot punish or prohibit it. Schumann v. Dianon Systems, Inc., supra, 598.
The question that we are addressing here is whether

Garcetti or the Pickering/Connick test provides the

proper rule for public employees under the state constitution. Nothing in Garcetti, Pickering or Connick suggests that a public employer has any speech rights

beyond the right to control its official policies within

the limits of the law and to efficiently and properly carry

out its legitimate mission. Accordingly, if the Pickering/

Connick test is adequate to protect that right, the fact

that it may limit other speech of the public employer

has no bearing on our analysis. The question of whether

Garcetti is preferable to the Pickering/Connick test in

the private workplace is more properly considered in

part II of this opinion, in which we address the defendants’ claim that § 31-51q protects less speech in a private workplace than the state constitution protects in

a public workplace.

Third, the defendants contend that extending constitutional protection to job related speech would transform § 31-51q into ‘‘a sweeping whistleblower

protection law that will apply to all public and private

employers in any circumstance,’’ and that doing so is

more properly the function of the legislature than of

this court. Again, we disagree. If the Garcetti standard

is inconsistent with the intent of the constitutional framers to protect speech by public employees on all subjects to the greatest extent possible, consistent with

the legitimate interests of public employers, we cannot

adopt that standard merely because the constitutional

speech provisions confer greater protection in certain

circumstances than that provided by statute. The legislature has no power to define constitutional speech

rights. See Garcetti v. Ceballos, supra, 547 U.S. 430

(Souter, J., dissenting) (‘‘[t]he applicability of a provision of the [c]onstitution has never depended on the

vagaries of state or federal law’’ [internal quotation

marks omitted]); id., 440 (‘‘the combined variants of

statutory whistle-blower definitions and protections

add up to a patchwork, not a showing that [constitutional] worries may be remitted to legislatures for

relief’’). Accordingly, the question of whether § 31-51q

protects less speech in the private workplace than is

constitutionally protected in the public workplace is

also more properly considered in part II of this opinion.

Finally, the defendants contend that the bright line

rule of Garcetti provides clearer guidance to employers

than the flexible Pickering/Connick test. As we

explained in part I C of this opinion, however, Garcetti

merely substituted one difficult question—whether a

public employee is speaking pursuant to his official job

duties or as a citizen—for another difficult question—

whether the employee’s speech is on a matter of public

concern and outweighs the employer’s legitimate interests in workplace discipline, order and efficiency. But

even if it is true that the rule in Garcetti is marginally

easier to apply than the Pickering/Connick test, that
fact would hardly outweigh the obvious benefits associated with the significantly greater free speech rights

afforded under the latter standard.

G

In summary, the Geisler factors as a whole provide

considerable support for the plaintiff’s claim that the

Garcetti standard does not comport with the free

speech provisions of the state constitution, and no such

factor provides any meaningful support for a contrary

determination. We conclude, therefore, that Justice

Souter’s modified Pickering/Connick balancing test,

which recognizes both the state constitutional principle

that speech on all subjects should be protected to the

maximum extent possible and the important interests

of an employer in controlling its own message and preserving workplace discipline, harmony and efficiency,

provides the proper test for determining the scope of

a public employee’s rights under the free speech provisions of the state constitution when the employee is

speaking pursuant to his or her official duties. Id., 435

(Souter, J., dissenting) (‘‘only comment on official dishonesty, deliberately unconstitutional action, other

serious wrongdoing, or threats to health and safety can

weigh out in an employee’s favor’’ when employee is

speaking pursuant to official duties); see also part I C of

this opinion. In our view, Justice Souter’s test properly

balances the employer’s heightened interest in controlling employee speech pursuant to official job duties—

an interest that Pickering did not specifically address—

and the important interests of the employee and of the

public in allowing employees to speak without fear of

retaliation about matters of particularly acute public

concern—interests that the Garcetti standard fails to

protect. As Justice Stevens aptly stated in his dissenting

opinion in Garcetti, ‘‘[t]he proper answer to the question ‘whether the [constitution] protects a government

employee from discipline based on speech made pursuant to the employee’s official duties’ . . . is ‘[s]ometimes,’ not ‘[n]ever.’ ’’ Garcetti v. Ceballos, supra, 547

U.S. 426 (Stevens, J., dissenting).

II

We next considerthe defendants’ claim that the scope

of speech that is protected by § 31-51q is narrower than

the scope of speech by public employees that is protected by the free speech provisions of the state constitution. Specifically, the defendants contend that: (1)

private employers have the right to control their

employees’ job related speech;(2) applying the Garcetti

standard under § 31-51q avoids a clash of employee and

employer speech rights; (3) broadening the scope of

whistleblower speech that is protected by § 31-51q is a

matter for the legislature, not this court; (4) applying

the Pickering/Connick test under § 31-51q undermines

the ability of private employers to make timely and

certain decisions; and (5) the public policy in favor of
bringing corrupt and dangerous employer practices to

light carries less weight when the employer is private.

We address, and reject, each of these claims in turn.

With respect to the defendants’ first claim, that private employers have the right to control their employees’ job related speech, we are satisfied that the

modified Pickering/Connick standard adequately protects this right. Under this standard, if an employee’s

job related speech reflects a mere policy difference

with the employer, it is not protected. It is only when

the employee’s speech is on a matter of public concern

and implicates an employer’s ‘‘official dishonesty . . .

other serious wrongdoing, or threats to health and

safety’’; id., 435 (Souter, J., dissenting); that the speech

trumps the employer’s right to control its own employees and policies.24 With respect to the defendants’ argument that ‘‘[t]he general public does not have the same

interest in, or entitlement to, information about the

operations of private businesses’’ as it has in public

entities, the defendants fail to recognize that, even

under Garcetti, an employee’s speech outside the workplace about the employee’s job related duties—for

example, a letter to the editor—is protected, as long

as the speech involves a matter of public concern. See

Garcetti v. Ceballos, supra, 547 U.S. 423. Accordingly,

we fail to see how protecting such speech within the

workplace would threaten a private employer’s privacy

interests. To the contrary, protecting such speech will

remove the incentive for an employee to raise concerns

publicly without first raising them internally. Finally,

we are mindful that ‘‘[a]s a remedial statute, § 31-51q

deserves a generous construction . . . .’’ Cotto v.

United Technologies Corp., supra, 251 Conn. 8–9.

The defendants also claim that the Garcetti standard

avoids a clash of employee and employer speech rights.

We are persuaded that the modified Pickering/Connick

standard is sufficient to avoid such a clash. We first

note that when Justice Borden, in his concurring and

dissenting opinion in Cotto; see id., 30; and Justice Zarella, in his concurring opinion in Schumann; see Schumann v. Dianon Systems, Inc., supra, 304 Conn. 636;

expressed concerns about a clash of employee and

employer speech rights, they were objecting to the holding of the court in Cotto that § 31-51q applies to

employee speech in the private workplace. The correctness of that holding is not before us in this appeal.

Rather, the issue that we are deciding is whether Garcetti or the Pickering/Connick balancing test, or some

other standard, determines the scope of the protection

afforded by § 31-51q to employee speech in the private

workplace. For all of the reasons that we have previously discussed in this opinion, we conclude that the

modified Pickering/Connick test does not place a significantly greater burden on the speech rights of private

employers than does the Garcetti test.25 The only

employee speech that is protected by the modified Pick-
ering/Connick test and that is not protected by Garcetti

is speech pursuant to an employee’s official job duties

that is on a matter of public concern and involves the

employer’s ‘‘official dishonesty . . . other serious

wrongdoing, or threats to health and safety . . . .’’ Garcetti v. Ceballos, supra, 547 U.S. 435 (Souter, J., dissenting). Moreover, the defendants in the present case

have made no claim that their own first amendment

rights would be violated if § 31-51q protected the plaintiff’s speech.26 Accordingly, we reject this claim.

The defendants next argue that the decision to extend

whistleblower protection to employee speech pursuant

to official job duties in a private workplace should be

left to the legislature. The legislature, however, has

expressed its intent in § 31-51q that constitutionally protected speech in the private workplace should be protected from employer discipline. See Cotto v. United

Technologies Corp., supra, 251 Conn. 16 (‘‘[W]e are persuaded that the legislature meant what it said. Section

31-51q extends protection of rights of free speech under

the federal and the state constitutions to employees in

the private workplace.’’). We have concluded in the

present case that, under the free speech provisions of

the state constitution, speech by a public employee on

all subjects, including internal whistleblowing speech,

should be protected from employer discipline to the

greatest extent possible, consistent with the legitimate

interests of the employer. We see no evidence that the

legislature intended to carve out an exception for internal whistleblowing speech under § 31-51q merely

because such speech is not protected under other statutory provisions.27 To the contrary, as we observed in

Cotto, the legislative history of § 31-51q supports the

conclusion that one purpose of the statute was to protect employees from retribution for speaking about dangerous or illegal workplace conditions. See id., 9–10

(underscoring remarks of Senator Howard T. Owens

during Senate debate on proposed legislation that purpose of legislation was to prevent retribution against

employees who complain about violations of federal

occupational safety laws and labor laws). We therefore

reject this claim as well.

The defendants further contend that § 31-51q should

not protect employee speech pursuant to official job

duties because employers need to be able to make

timely decisions with certainty. They argue that the

bright line rule of Garcetti provides clearer guidance

than the flexible Pickering/Connick test as to when

employee speech is protected from discipline. We note,

however, that, although there is no presumption that

the official job duties of a private employee, unlike

those of a public employee, implicate the public interest, underthe state constitutional standard that we have

adopted in the present case employee speech pursuant

to official job duties would be protected by § 31-51q only

to the extent that it involves dishonest or dangerous
practices by the employer that would be a matter of

public concern. When speaking on such matters, a private employee is speaking both as an employee and as

a citizen, just as a public employee would be. Accordingly, for the same reason that we rejected this claim

in part I B of this opinion, namely, that the question of

whether an employee is speaking as a citizen or as an

employee is often no less difficult than the questions

presented by the Pickering/Connick test, we also reject

it here.

Similarly, with respect to the defendants’ claim that

greater efficiency and proper performance by a private

employer are not matters of public concern, although

we would agree that that is true as a general rule, it is

clearthatthat is not always the case. Underthe standard

that we have adopted, only employee speech that

involves employer policies and practices that are matters of significant public concern is protected. For that

reason, this claim also fails.

III

For all of the foregoing reasons, we conclude that

the answer to the certified question is ‘‘no.’’ We further

conclude that the Pickering/Connick balancing test, as

modified by Justice Souter in his dissenting opinion in

Garcetti; see Garcetti v. Ceballos, supra, 547 U.S. 435

(Souter, J., dissenting) (‘‘only comment on official dishonesty, deliberately unconstitutional action, other

serious wrongdoing, or threats to health and safety can

weigh out in an employee’s favor’’ when employee is

speaking pursuant to official duties); applies to speech

in a public workplace under the state constitution and

that § 31-51q extends the same protection to employee

speech in a private workplace for claims involving the

state constitution.

No costs will be taxed in this court to the plaintiff

or the defendants.

In this opinion EVELEIGH, McDONALD, ESPINOSA,

ROBINSON and VERTEFEUILLE, Js., concurred.

1 General Statutes § 31-51q provides: ‘‘Any employer, including the state

and any instrumentality or political subdivision thereof, who subjects any

employee to discipline or discharge on account of the exercise by such

employee of rights guaranteed by the first amendment to the United States

Constitution or section 3, 4 or 14 of article first of the Constitution of the

state, provided such activity does not substantially or materially interfere

with the employee’s bona fide job performance or the working relationship

between the employee and the employer, shall be liable to such employee

for damages caused by such discipline or discharge, including punitive

damages, and for reasonable attorney’s fees as part of the costs of any such

action for damages. If the court determines that such action for damages

was brought without substantial justification, the court may award costs

and reasonable attorney’s fees to the employer.’’

2 Hereinafter, joint references to UBS Realty and UBS AG are to the

defendants, and references to the defendants individually are by name.

3 Because the record before us does not contain the defendants’ motion

for summary judgment, the basis of the defendants’ claim is unclear.

4 Hereinafter, all references to the District Court are to Judge Squatrito

unless otherwise indicated.

5 Before filing their motion for summary judgment, the defendants had
filed a motion to dismiss the plaintiff’s claims. In her ruling on the motion

to dismiss the claim pursuant to § 31-51q, the District Court judge to whom

the matter was then assigned, Arterton, J., concluded that Garcetti did not

apply to the claim because Garcetti did not apply to claims arising in a

private workplace. See Trusz v. UBS Realty Investors, LLC, United States

District Court, Docket No. 3:09cv268 (JBA) (D. Conn. March 30, 2010). This

court’s decision in Schumann abrogated Judge Arterton’s ruling.

6 See Garcetti v. Ceballos, supra, 547 U.S. 419 (‘‘[s]o 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’’); Connick v. Myers, supra, 461 U.S. 146

(‘‘[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 [f]irst [a]mendment’’).

7 After we accepted the certified question from the District Court, we

granted permission to the American Civil Liberties Union of Connecticut

and the Commission on Human Rights and Opportunities to file briefs as

amici curiae in support of the plaintiff’s position, and to the Connecticut

Business and Industry Association, Inc., to file an amicus curiae brief in

support of the defendants’ position.

8

In Garcetti, Justice Stevens authored a dissenting opinion; see Garcetti

v. Ceballos, supra, 547 U.S. 426; Justice Souter authored a dissenting opinion,

in which Justice Stevens and Justice Ginsburg joined; id., 427; and Justice

Breyer authored a dissenting opinion. Id., 444. We discuss the substance of

these dissenting opinions later in this opinion.

9

Justice Borden authored a concurring and dissenting opinion in Cotto,

in which he argued that, although § 31-51q applied to private employers, it

did not provide protection against infringement of speech rights in a private

workplace, because interference with speech rights by a private employer

does not violate the constitution. Cotto v. United Technologies Corp., supra,

251 Conn. 32–33. Justice Katz authored a concurring and dissenting opinion

in which she agreed with the majority’s interpretation of § 31-51q, but disagreed with the majority’s conclusion that the defendant had not violated

the statute. Id., 41. Justice Francis McDonald issued a concurring opinion

in which he maintained that § 31-51q did not apply to employee speech in

the workplace because private employers have a constitutional right to

express their own views on their property, free from government interference. Id., 53–54.

10 We note that Justice Zarella authored a concurring opinion in which he

argued that § 31-51q was inapplicable to any speech made by an employee

in a private workplace and that Cotto should be overruled. Schumann v.

Dianon Systems, Inc., supra, 304 Conn. 628–29.

11 To be sure, some language in Schumann may be read as suggesting

that private employee speech pursuant to official job duties is not protected

under the first amendment. See Schumann v. Dianon Systems, Inc., supra,

304 Conn. 610 n.21 (rejecting plaintiff’s claim that § 31-51q applies to

employee speech pursuant to official duties because ‘‘§ 31-51q, by its plain

language, applies only ‘to constitutionally protected speech,’ ’’ which, under

Garcetti, does not include speech pursuant to official job duties). To the

extent that this language possibly could be interpreted to suggest that the

government may freely punish or prohibit such speech, we now disavow

any such suggestion. Rather, as we have explained, speech by a public

employee pursuant to official job duties is not constitutionally protected

under the federal constitution only in the special sense that the constitution

does not insulate such speech from employer discipline.

12 We recognize that § 31-51q confers only statutory protection against a

private employer’s interference with constitutionally protected employee

speech, whereas an employer’s right to address employees as it sees fit

is, at least to some degree, constitutionally protected from government

interference. To the extent that the defendants intended to claim that § 31-

51q is facially unconstitutional because it confers a statutory speech right

on employees that constrains the employer’s constitutional speech rights,

we conclude that any such claim is unreviewable because it was inadequately briefed.

13 The District Court has asked us only to articulate the proper legal

standard under the state constitution; it has not asked us to apply that

standard to the facts of this case.

14 ‘‘See, e.g., State v. Marsala, [216 Conn. 150, 579 A.2d 58 (1990)]; State

v. Geisler, supra, [222 Conn. 672]. Thus, in [Marsala], our Supreme Court

refused to follow United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L.
Ed. 2d 677 (1984), and gave our citizens the protection of the exclusionary

rule, under our constitution, undiluted by a good faith exception, as allowed

in Leon. Until Leon, a broad exclusionary rule under the federal constitution

had been a constant in fourth amendment analysis, having been first

announced in Weeks v. United States, 232 U.S. 383, [398] 34 S. Ct. 341, 58

L. Ed. 652 (1914), and made applicable to the states through the fourteenth

amendment to the United States constitution in Mapp v. Ohio, 367 U.S. 643,

[655] 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). The Marsala court interpreted

our state constitution to allow the maintenance of a constitutional status

quo that had existed for our citizens for at least twenty-nine years.

‘‘In [Geisler], this court refused to follow New York v. Harris, 495 U.S.

14, 110 S. Ct. 1640, 109 L. Ed. 2d 13 (1990). The Harris court also created

an exception to the exclusionary rule under the federal constitution, and

held that evidence obtained outside a residence, immediately following an

illegal warrantless arrest made in the residence, was admissible at trial. [Id.,

21.] Such evidence had been previously banned as violative of the fourth

amendment. See Payton v. New York, 445 U.S. 573, [590] 100 S. Ct. 1371,

63 L. Ed. 2d 639 (1980). Our conclusion in Geisler aligned our state constitutional protections with those protections long afforded by the federal constitution prior to Harris and followed by the courts of this state.’’ State v.

DeFusco, 27 Conn. App. 248, 256–57, 606 A.2d 1 (1992), aff’d, 224 Conn. 627,

620 A.2d 746 (1993).

15 Authorities have disagreed as to whether Garcetti narrowed the Pickering/Connick test or, instead, merely addressed an issue that it had not

previously had the opportunity to address. Compare Kaye v. Board of Trustees, 179 Cal. App. 4th 48, 58, 101 Cal. Rptr. 3d 456 (2009) (‘‘Garcetti does

not . . . limit rights established by earlier precedents in a manner inconsistent with those precedents. Rather, Garcetti relied upon and applied earlier

precedents to address an issue that had never been directly addressed by

them . . . .’’), with R. Garcia, ‘‘Against Legislation: Garcetti v. Ceballos, and

the Paradox of Statutory Protection for Public Employees,’’ 7 First Amend.

L. Rev. 22, 24 (2008–2009) (Garcetti ‘‘narrowed the scope of the [f]irst

[a]mendment protections that public employees had enjoyed for decades’’).

In our view, Garcetti narrowed the scope of protected speech. Before Garcetti was decided, public employees reasonably could have expected that

speech pursuant to their official duties would be protected from employer

discipline if it related to a matter of public concern and if it satisfied the

Pickering balancing test. After Garcetti, the ‘‘answerto the question whether

the [f]irst [a]mendment protects a government employee from discipline

based on speech made pursuant to the employee’s official duties’ . . . is

. . . ‘[n]ever.’ ’’ Garcetti v. Ceballos, supra, 547 U.S. 426 (Stevens, J., dissenting).

16 Although the second prong of Geisler focuses on the decisions of this

court and the Appellate Court, it bears noting that, on at least five occasions,

our trial courts have either declined to apply Garcetti to § 31-51q claims

involving the state constitution or held that it is an open question whether

Garcetti applies to such claims. See Sanchez v. High Watch Recovery Center,

Inc., Superior Court, judicial district of Hartford, Docket No. HHD-CV-12-

6032834-S (January 14, 2013) (denying motion to strike claim pursuant to

§ 31-51q pursuant to Garcetti because ‘‘the Connecticut constitution is more

liberal than the federal constitution on freedom of speech’’); Maysonet v.

Primecare, Inc., Superior Court, judicial district of Waterbury, Docket No.

CV-10-5016091-S (February 1, 2013) (denying defendant’s motion for summary judgment ‘‘because Connecticut may afford individuals greater protection under its own constitution’’ than is afforded by Garcetti); Matthews v.

Dept. of Public Safety, Superior Court, judicial district of Hartford, Docket

No. HHD-CV-11-6019959-S (May 31, 2013) (56 Conn. L. Rptr. 262, 270–82)

(conducting Geisler analysis and concluding that Pickering/Connick balancing test applies to employee speech under Connecticut constitution); Cubilla

v. Montville, Superior Court, judicial district of New London, Docket No.

KNL-CV-11-6010874-S (March 18, 2014) (57 Conn. L. Rptr. 860, 864 n.65)

(adopting analysis of court in Matthews); Carson v. Dept. of Children &

Families, Superior Court, judicial district of Hartford, Docket No. HHD-CV07-5036578-S (March 27, 2014) (denying motion to strike claim pursuant to

§ 31-51q pursuant to Garcetti because free speech rights may be broader

under state constitution); see also Ozols v. Madison, supra, United States

District Court, Docket No. 3:11cv1324 (SRU) (concluding that Garcetti does

not apply ‘‘to those portions of [§] 31-51q that relate to rights protected by

the Connecticut [c]onstitution’’); but see Cabrera v. American School for

the Deaf, Superior Court, judicial district of Hartford, Docket No. HHD-CV12-6035273-S (February 26, 2013) (55 Conn. L. Rptr. 637, 639–41) (performing

Geisler analysis and concluding that Garcetti applies to claims under
state constitution).

17 The court in Garcetti stated that ‘‘[i]f . . . a government employer is

troubled by the perceived anomaly, it has the means at hand to avoid it. A

public employer that wishes to encourage its employees to voice concerns

privately retains the option of instituting internal policies and procedures

that are receptive to employee criticism. Giving employees an internal forum

for their speech will discourage them from concluding that the safest avenue

of expression is to state their views in public.’’ Garcetti v. Ceballos, supra,

547 U.S. 424. The court failed to recognize, however, that a public employee

who speaks pursuant to such internal policies and procedures still might

face the prospect of employer discipline for the speech, unless the policies

and procedures rose to the level of a contractual guarantee that there would

be no retaliation for critical speech. Moreover, we do not see why this

important issue of public policy should be subject to a public employer’s

unilateral choice.

18 Compare Matthews v. Lynch, United States District Court, Docket No.

3:07cv739 (WWE) (D. Conn. April 11, 2011) (speech of state police officer

relating to alleged corruption within Connecticut State Police and directed

at office of Connecticut attorney general and New York State Police not

protected because speaker was ‘‘charged with reporting crime and . . . he

did in fact report misconduct to the agencies to which he was supposed to

report such misconduct’’).

19 Indeed, it is arguable that what Justice Souter characterized as an

‘‘adjustment’’ of the Pickering test; Garcetti v. Ceballos, supra, 547 U.S. 434;

is not an adjustment at all, but is a straightforward application of Pickering

to a specific type of speech, that is, speech pursuant to an employee’s official

duties, that the employer has a particularly important interest in controlling.

Justice Breyer argued in his dissenting opinion in Garcetti that the standard adopted by the majority was too narrow, but that Justice Souter’s

proposed standard was too broad. Id., 446–48. In his view the Pickering

balancing test should apply to employee speech pursuant to official duties

‘‘only in the presence of augmented need for constitutional protection and

diminished risk of undue judicial interference with governmental management of the public’s affairs.’’ Id., 450. He concluded that that test was met

in Garcetti because the case involved the speech of an attorney, which is

subject to regulation by canons of professional ethics, and because it

involved the speech of a prosecutor, which is subject to the constitutional

mandate to communicate with the defense about exculpatory and impeachment evidence in the government’s possession. Id., 446–47. We believe that

Justice Souter’s proposed standard provides adequate protection of the

interests of public employers.

20 For example, if a public employee responsible for establishing state

traffic rules and policies insisted that, contrary to the state’s established

policy, the speed limit on interstate highways should be eighty miles per

hour, that speech would not be protected under Justice Souter’s approach,

even though it was on a matter of public concern and placed little burden

on the employer.

21 The California constitution provides in relevant part: ‘‘Every person may

freely speak, write and publish his or her sentiments on all subjects, being

responsible for the abuse of this right. A law may not restrain or abridge

liberty of speech or press.’’ Cal. Const., art. I, § 2 (a).

22 The Maryland constitution provides in relevant part: ‘‘That the liberty

of the press ought to be inviolably preserved; that every citizen of the [s]tate

ought to be allowed to speak, write and publish his sentiments on all subjects,

being responsible for the abuse of that privilege.’’ Md. Const., art. 40.

23 The South Dakota constitution provides in relevant part: ‘‘Every person

may freely speak, write and publish on all subjects, being responsible for

the abuse of that right. . . .’’ S.D. Const., art. VI, § 5.

24 In the public workplace, the modified Pickering/Connick test also would

protect speech regarding deliberately unconstitutional action by the

employer because that conduct would satisfy the state action requirement.

Garcetti v. Ceballos, supra, 547 U.S. 435 (Souter, J., dissenting).

25 The defendants raise the hypothetical examples of an employee who

‘‘has a racist bumper sticker on a car that he or she uses when visiting

customers,’’ an employee who ‘‘hands out political leaflets to customers or

solicits donations to social causes,’’ an employee who ‘‘hands out religious

materials when meeting customers,’’ and an employee who ‘‘uses racist

or sexist slurs when conducting business or communicating with other

employees.’’ Presumably, however, none of these examples involves speech

pursuant to official job duties. Thus, if they would be protected under the

Pickering/Connick balancing test, they would be protected under Garcetti,
which is the standard that the defendants would have us adopt under the

state constitution. Moreover, although there is no need in the present case

to consider whether such speech would be protected under the Pickering/

Connick test, we doubt that the employee’s interest in engaging in such

speech would outweigh the employer’s legitimate interest in maintaining

discipline, harmony and efficiency in the workplace or that the speech

would satisfy the statutory requirement that the employee’s activity ‘‘not

substantially or materially interfere with the employee’s bona fide job performance or the working relationship between the employee and the employer

. . . .’’ General Statutes § 31-51q. Indeed, a number of these activities would

subject the employerto legal action, which would hardly promote a harmonious working relationship between the employee and the employer.

The amicus Connecticut Business and Industry Association, Inc., contends

that, in the present case, ‘‘not only was [the plaintiff’s] speech part of his

professional duties, but his speech occurred even after his employer fully

considered his concerns, and, after two separate investigations, disagreed

with [the plaintiff] that additional disclosures were necessary.’’ (Emphasis

in original.) As we have indicated, however, we have not been asked to

apply the standard that we have adopted to the facts of the present case.

Accordingly, we express no opinion as to whether the plaintiff’s speech was

protected under § 31-51q.

26 As the majority in Cotto stated, ‘‘[w]e do not dispute the possibility that

circumstances may arise when the rights of an employee under § 31-51q

may conflict with the employer’s own free expression rights. If and when

that case does arise, we will be required to resolve any such conflict in light

of the particular facts and circumstances then presented.’’ Cotto v. United

Technologies Corp., supra, 251 Conn. 8 n.5.

27 The defendants’ reliance on Schumann in support of their claim to the

contrary is misplaced. In Schumann, we rejected the plaintiff’s claim that

applying Garcetti to the speech of internal whistleblowers in the private

workplace pursuant to § 31-51q would chill such speech, stating that ‘‘by

its plain language, [§ 31-51q] applies only to constitutionally protected

speech . . . .’’ (Internal quotation marks omitted.) Schumann v. Dianon

Systems, Inc., supra, 304 Conn. 610 n.21. Thus, we held only that, if the

first amendment did not protect internal whistleblower speech in a public

workplace from employer discipline under Garcetti, § 31-51q did not protect

such speech from discipline by a private employer in claims involving the

first amendment. We did not suggest that, if the speech provisions of the state

constitution do protect internal whistleblower speech in a public workplace,

§ 31-51q could not be construed to provide protection to such speech in the

private workplace if the protection went beyond that provided by other

statutes.