The Denver-based federal appeals court agreed on July 7 that the former chief of the Florissant Fire Protection District could not prevail on the claim that his 2023 firing was retaliation for his First Amendment-protected activity.

Erik Holt alleged the Teller County district’s directors terminated him because he cooperated with an investigation into potential election fraud during the May 2023 election. Holt turned over the fire station’s surveillance footage from the day of the election and answered questions from the district attorney’s investigator. Five weeks later, the newly elected board voted to fire him.

A trial judge sided with the district after concluding that Holt’s speech in the investigation stemmed from his duties as a public employee, and was not constitutionally protected as a result. A three-judge panel of the 10th U.S. Circuit Court of Appeals upheld that determination.

“Both the contents of Holt’s speech and its audience support the conclusion Holt spoke pursuant to his official duties,” wrote Senior Judge Michael R. Murphy in a July 7 order. “Thus, on this record, Holt spoke for the purpose of completing an administrative task within his official duties, not to disclose to the public the wrongdoing of government officials or citizens.”

The fire protection district, in moving to end the lawsuit in its favor, argued that board members seemingly did not know about Holt’s cooperation with the investigator when they voted to terminate him. Instead, the district maintained that Holt’s firing resulted from Holt’s failure to properly inform the board about renewing the district’s insurance, causing the policy to lapse and operations to briefly shut down in June 2023.

Holt countered that the real reason for his firing was his cooperation with Clint Kramer, an investigator with the district attorney’s office who was looking into alleged illegalities during the election at the fire station. Holt argued that in answering Kramer’s questions about what the security footage showed, his speech fell outside of his duties as a public employee. Therefore, it was constitutionally protected and the district engaged in retaliation by terminating him for it.

U.S. District Court Judge Nina Y. Wang did not reach the question of what motivated the district’s board to fire Holt. Instead, she noted the longstanding restrictions courts have recognized on public employees’ free speech rights. To state a viable claim of First Amendment retaliation, the employee has to show, among other things, they were not speaking pursuant to their official duties.

Wang concluded that factor alone doomed Holt’s First Amendment claim, observing that Holt’s provision of surveillance footage and his conversation with Kramer fell within his fire chief duties.

Representing himself, Holt appealed. He argued that his job duties did not require him to cooperate with Kramer, and he voluntarily spoke as a private citizen because he believed in accountability for any election law violations.

“Holt clearly placed himself in the crosshairs of retaliation to protect the democratic process, sought legal guidance and ultimately made the choice to voluntarily continue his cooperation with a criminal investigation outside of any order or authority requiring him to do so,” he wrote. “How then can this be viewed as duties he was paid to perform and taking away his First Amendment protections?”

“Here, Holt’s speech consisted of providing the fire station’s surveillance video footage to the district attorney investigator upon being asked to do so, and answering some questions about the footage,” responded attorney Sara L. Cook for the district. “The only reason Holt was asked to provide the video footage was because of his position as fire chief.”

The 10th Circuit panel agreed that Holt’s speech during the investigation fell within the scope of his responsibilities as a public employee.

“Holt, and only Holt, had access to the surveillance video and that access was based exclusively on his position as fire chief,” wrote Murphy. “His speech — meeting with Kramer at the fire house, providing the surveillance video only he could provide, and answering simple logistics questions about the facility he managed — was an exercise of the very job duties he was hired to perform.”

The Mountain States Legal Foundation, which represented Holt during oral arguments, said it was disappointed by the decision.

“We respectfully disagree. The First Amendment exists to encourage truth-telling and accountability, not to punish public servants for cooperating with investigations into potential wrongdoing,” the firm said in a statement.