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.
Pro was not subpoenaed to offer testimony regarding practices and policies of the Office of the Register of Wills. Rather, she was subpoenaed to testify in the Donatucci divorce proceeding about purely private matters. She makes absolutely no claim that her testimony would have had anything to do with public concerns. To the contrary, she admits that she learned after she responded to the subpoena that her testimony would have concerned a purely private matter that occurred during the first year of her employment in the Office of the Register of Wills.
When an employee testifies before an official government adjudicatory or fact-finding body he speaks in a context that is inherently of public concern.... If employers were free to retaliate against employees who provide truthful, but damaging, testimony about their employers, they would force the employees to make a difficult choice. Employees either could testify truthfully and lose their jobs or could lie to the tribunal and protect their job security. Those able to risk job security would suffer state-sponsored retaliation for speaking the truth before a body entrusted with the task of discovering the truth. Those unwilling or unable to risk unemployment would scuttle our efforts to arrive at the truth.
The real issue after Johnston and Reeves is control. In the context of the workplace, a public employee can normally choose to speak, or not to speak, on issues that may incur the wrath of his superiors. A subpoenaed witness has no choice but to appear at a trial, unless he is willing to risk a finding of contempt. Nor does the subpoenaed witness normally have a say in whether he will be called to testify. Retaliation in these circumstances inflicts a punishment on a public employee for performing an act that he could not choose to avoid.
[a] reasonable government official in Donatucci's position would be intimately familiar with the[ ] policy concerns that underlie Reeves. By operation of statute and practice, the functions of the Register of Wills overlap with the functions of the Orphans' Court. Indeed, the Register of Wills has the power to issue subpoenas and to enforce compliance with those subpoenas. A reasonable Register of Wills would understand the need to protect witnesses from retaliation for compliance with lawfully issued subpoenas, regardless of whether the witnesses ultimately testified. Like an officer of any court, a reasonable Register of Wills has a powerful interest in protecting subpoenaed witnesses from retaliation for compliance with those commands. A contrary proposition would ultimately undermine both the authority of his position and his ability to carry out his duties.
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