The United States Court of Appeals for the Second Circuit

In May 2019, Long was appointed as the Clerk of the New Lebanon Town Justice Court by the New Lebanon Town Board, with the advice and consent of the Town Justices. Until she was terminated from that position in early 2024, Long was consistently given “high praise” for her work as Court Clerk, including by Byrne, Appellant’s App’x 23–24 at ¶¶ 10–12, who directed the “means and manner” of her employment, id. 29 at ¶ 50. At one point, Byrne purportedly stated that Long was “the best Court Clerk she ever had,” and, in one of her performance evaluations, submitted a perfect score for Long. Id. 23–24 at ¶¶ 11–12.

The events underlying the unraveling of Long’s tenure as Court Clerk began during the summer of 2023. In July of that year, a Commission representative arrived at Long’s office and requested “case files on [four] individuals.” Id. 24 at ¶ 15. An anonymous judicial ethics complaint had been filed against Byrne, and the Commission’s representative sought those case files because they were connected to its investigation into Byrne’s purported not permitted to discuss the investigation with anyone, including . . . Byrne.” Id. at ¶ 16.

Long “turned over all the material” that the representative requested. Id. at ¶ 15. She asserts that although she was not an employee of the Commission and her duties as the Court Clerk did not “require her to report to the Commission,” id. 27 at ¶ 37, she cooperated with the representative’s request in an “effort to comply with the laws, rules, and regulations of the [Commission],” id. 29–30 at ¶ 55. In fact, Long asserts that she was “required by law” to comply with the Commission’s requests. Id. 24 at ¶ 15. She further alleges that in providing the requested documents, she was “acting in the same manner as any private citizen to whom the Commission . . . inquired.” Id. 28 at ¶ 38.

A few months later in late November, Byrne confronted Long about the Commission’s investigation. Long alleges that Byrne “came into the office angry” because Long “did not tell her who [had] filed the complaint against her.” Id. 24 at ¶ 17. Long responded that she did not know the complainant’s identity, and that, in any event, she had been “advised by the representative of the Commission not to speak of it to anyone[,] including . . . Byrne.” Id. Long also asserts that she was not required to respond to Byrne because “her job duties [did not] require her to advise a Town Justice as to the requirements of the Commission”; knowledge of those requirements was instead Byrne’s responsibility. Id. 27 at ¶ 37. Shortly thereafter, at Byrne’s impetus, the Town Board terminated Long’s employment as Court Clerk.

Allegations

The complaint adequately alleges that the speech in question was not a part of Long’s duties. As alleged, Byrne initiated the confrontation with Long because she was angry that the Commission was investigating her suspected misconduct. The complaint does not allege that Byrne was angry because the Commission was investigating conduct that implicated Long’s duties as Court Clerk, such as court employees’ potential mishandling of court documents.

Long also alleges that Byrne was angry because Long would not tell her who filed the complaint with the Commission. But Long did not know the identity of the complainant. More importantly, Long alleges that it was not within the scope of her job duties “to advise a Town Justice as to the requirements of the Commission.” Appellant’s App’x 27 at ¶ 37. That allegation makes perfect sense in the context of the rest of Long’s complaint. She asserts facts that support that the Commission is an independent entity; she is not employed by the Commission, and she is not required to report to the Commission. Accepting those allegations as true, as we must, there is no clear reason why it would be within Long’s job duties to provide Byrne with information related to an independent third-party’s investigation into Byrne’s suspected misconduct. Even if it was within Long’s job duties to tell Byrne who 26had requested court files, it would not follow that it was also within Long’s duties to give Byrne the information that she sought: the identity of the person who had filed complaints with the Commission. In any event, Long does not allege that Byrne inquired about the identity of the person who requested files or that Long refused to provide that information.

Long’s assertion that she engaged in protected citizen speech by refusing to answer Byrne’s inquiries about the Commission’s investigation also coheres with the rationales that motivate the government speech doctrine. It is not clear in any way that Long’s refusal to engage with Byrne on the Commission’s investigation risked sacrificing the efficient operations of the Clerk’s office. As we have explained, Long has adequately alleged that the Commission’s investigation had nothing to do with her responsibilities. This case is, therefore, unlike Anemone. There, the plaintiff’s speech reporting suspected misconduct to the Queens DA was clearly within the scope of his official duties. Anemone, 629 F.3d at 116–17. Moreover, had the defendant been unable to discipline the plaintiff for his continued communications with an outside investigatory agency, the MTA would not have been able to effectively and efficiently manage internal investigations. Id. But here, Long’s adherence to the Commission’s request that she refuse to discuss its investigation with others did not risk hampering Byrne’s effective supervision of Long’s day-to-day responsibilities because that refusal was, as alleged, entirely independent of her job duties. Had Long discussed the investigation with Byrne, it may have furthered Byrne’s private interest in identifying the identity of the complainant. But regardless of whether Byrne’s private interest was legitimate (perhaps she wanted to prepare a defense by investigating the motives and knowledge of a false accuser) or illegitimate (perhaps she wanted to intimidate and corrupt a truthful accuser), nothing in the complaint suggests that it was part of Long’s job duties to assist Byrne in furthering that interest.

There is also a clear civilian analogue to Long’s conduct, which further supports that it was not related to her job responsibilities

Citizen

We therefore conclude that Long spoke as a citizen when she refused to discuss the Commission’s investigation with Byrne. Our conclusion with respect to Long and Byrne’s interaction would perhaps be different had Long refused to discuss a work-related topic with Byrne; discussing work-related topics in the 30office with one’s supervisor is within the ambit of one’s job responsibilities. And indeed, after further development of the record, it may be the case that the conversation implicated Long’s job responsibilities, including any job responsibilities that may relate to the Commission’s investigation. But the record, which at this stage of the proceedings is limited to Long’s complaint, does not indicate that to be the case.