Audience Matters: Tenth Circuit Confirms External Whistleblowing by Government Lawyers Is Not “Pursuant to” Official Duties Under Garcetti/Pickering

Introduction

In Timmins v. Plotkin, No. 24-1160 (10th Cir. Nov. 3, 2025), the Tenth Circuit reversed a Rule 12(b)(6) dismissal of a First Amendment retaliation claim brought by a public entity’s former general counsel and litigation counsel. Plaintiff Mary Joanne Deziel Timmins alleged that members of the Green Mountain Water and Sanitation District’s Board engaged in unlawful and unethical practices, and that she was fired after speaking about those practices to reporters and residents. The district court dismissed on the ground that Timmins’s speech was made “pursuant to” her official duties and thus unprotected under Garcetti v. Ceballos.

The Tenth Circuit held that Timmins’s external speech to the press and private citizens was not ordinarily within the scope of her official duties as an attorney for the District, even if it related to information learned through her employment. Emphasizing the Supreme Court’s clarification in Lane v. Franks and taking a practical, context-sensitive approach, the court rejected the district court’s reliance on pre-Lane formulations that speech “owing its existence to” or “relating to” employment is categorically unprotected. The panel also underscored the importance of audience: speaking outside the chain of command to the public or press is generally not part of a public employee’s job duties absent specific assignment.

Parties: Plaintiff-Appellant Timmins; Defendants-Appellees Board members Alex Plotkin, Karen Morgan, and Jeffrey Baker, and the Green Mountain Water and Sanitation District. The appeal was resolved on the briefs; Judge Harris L Hartz authored the opinion, joined by Judges Tymkovich and Federico.

Summary of the Opinion

The sole issue on appeal was Garcetti/Pickering step one: whether Timmins’s speech to reporters and private residents was made pursuant to her official duties. The court held it was not, because:

Her formal and practical duties as general and litigation counsel were inward-facing—advising the Board in executive session, handling litigation tasks, and discussing strategy with the client—not outward-facing public communications criticizing the client.
Under Lane v. Franks, speech is not transformed into employee speech simply because it “relates to” employment or was learned at work; the inquiry is whether the speech itself is ordinarily within the scope of the employee’s duties.
The audience matters: absent a specific assignment, public employees generally do not have a duty to speak to the press or the public to sway opinion.
The fact that Timmins’s statements outside the organization resembled her advice inside the organization did not convert the external speech into job duties.
Indeed, attorney confidentiality norms suggest the opposite—public disclosure of client wrongdoing is typically not within a government lawyer’s duties absent narrow exceptions—underscoring that such speech was not part of her job.

The court expressly disavowed pre-Lane Tenth Circuit formulations suggesting that speech “relating to” job duties or “owing its existence” to employment is unprotected, explaining that Lane controls. The panel declined to affirm on alternative grounds (qualified immunity or other Garcetti/Pickering elements) and remanded for further proceedings. The court did not decide whether statements made at public meetings were protected, because Timmins did not specifically address those statements on appeal.

Background

Timmins served from February 2019 to August 2021 as general counsel and litigation counsel to the District. The Board’s 2019 vote to terminate an intergovernmental agreement with the Big Sky Metropolitan District led to multiple lawsuits, including an open-records case seeking communications with John Henderson, then a deputy public defender who regularly interacted with Board members.

In preparing for litigation, Timmins discovered that Board members Plotkin and Baker used personal email for District business, that they shared privileged legal matters with Henderson (who, as a state employee, was prohibited from providing legal advice to the District), and that they met outside public meetings, including to sign contracts, in apparent violation of Colorado’s open meetings law. She repeatedly advised the Board—privately and in executive session—about open meetings, privilege, conflicts, record preservation, and the risks of noncompliance. Plotkin and Baker later admitted in depositions to destroying texts and emails.

After internal warnings failed, Timmins spoke outside the organization:

To reporters, she described open meetings violations, alignment with conflicted outside counsel, and conduct exposing the District to grave financial risk, including destruction of public records.
To residents, she described similar concerns: violations of open meetings laws, off-meeting contracts, and disregard of fiduciary obligations.

After her termination, Timmins sued under 42 U.S.C. § 1983 for First Amendment retaliation. The district court dismissed, reasoning that her external speech “owed its existence” to her job and mirrored her internal advice; the court concluded she spoke pursuant to her duties. The Tenth Circuit reversed.

Analysis

1. Precedents Cited and Their Influence

Garcetti v. Ceballos, 547 U.S. 410 (2006). Garcetti holds that public employees speaking pursuant to their official duties do not speak as citizens for First Amendment purposes. Garcetti calls for a “practical” inquiry beyond formal job descriptions, but did not define the scope of job duties in detail.
Pickering v. Board of Education, 391 U.S. 563 (1968). Provides the balancing framework for public employee speech once the employee shows citizen speech on matters of public concern; the employer can regulate speech if its interests outweigh the employee’s free speech interests.
Lane v. Franks, 573 U.S. 228 (2014). Lane is the centerpiece here. It narrows Garcetti’s “pursuant to duties” test: the “critical question” is whether “the speech at issue is itself ordinarily within the scope of an employee’s duties,” not whether it relates to those duties or was learned through employment. The Tenth Circuit applies Lane to repudiate its own earlier, broader formulations.
Kennedy v. Bremerton School District, 597 U.S. 507 (2022). Recognizes Lane’s teaching that the mere employment-related character of speech does not render it government speech.
Knopf v. Williams, 884 F.3d 939 (10th Cir. 2018). Recites the practical, totality-based approach to “pursuant to duties” and clarifies that many facts are relevant and no single one is determinative. The panel also notes Knopf did not resolve the “pursuant to” issue on the merits due to qualified immunity.
Tufaro v. Oklahoma ex rel. Bd. of Regents of the Univ. of Okla., 107 F.4th 1121 (10th Cir. 2024). Emphasizes that statements are within official duties if they “stemmed from and were the type of activities [the employee was] paid to do,” with attention to internal vs. external audiences. Distinguished here because Tufaro involved in-house campus communications, not public-facing speech.
Seifert v. Unified Gov’t of Wyandotte Cnty./Kansas City, 779 F.3d 1141 (10th Cir. 2015); Lincoln v. Maketa, 880 F.3d 533 (10th Cir. 2018); Trant v. Oklahoma, 754 F.3d 1158 (10th Cir. 2014). These cases supply the five-element Garcetti/Pickering framework, allocate burdens of proof, and describe which elements are generally questions of law (steps 1–3) versus fact (steps 4–5).
Casey v. West Las Vegas Independent School District, 473 F.3d 1323 (10th Cir. 2007). Supports the idea that when an employee loses faith in the internal process and takes her grievance outside, she may be acting as a citizen rather than fulfilling official duties of advising the board.
Trimble v. Board of County Commissioners, 728 F. App’x 789 (10th Cir. 2018); Ellison v. Roosevelt County Board of Commissioners, 700 F. App’x 823 (10th Cir. 2017). Unpublished decisions cited by defendants for general propositions about “public-facing” roles and speech aimed at facilitating job performance; the panel distinguishes them, emphasizing the external audience and specific context here.
Brammer-Hoelter v. Twin Peaks Charter Academy, 492 F.3d 1192 (10th Cir. 2007); Sarkar v. McCallin, 636 F.3d 572 (10th Cir. 2011). Pre-Lane Tenth Circuit decisions with broader “relates to duties” or “owes its existence” language. The panel explains that those formulations contradict Lane and “are no longer good law.”
Colorado Rules of Professional Conduct 1.6 and Restatement (Third) of the Law Governing Lawyers § 67. Invoked to underscore that a government lawyer’s public disclosures about client wrongdoing are not ordinarily part of her job duties and could be ethically prohibited absent specified exceptions—further evidence the speech was not “pursuant to” her duties.
Wise v. DeJoy, 71 F.4th 744 (10th Cir. 2023); Evers v. Regents of the University of Colorado, 509 F.3d 1304 (10th Cir. 2007). Cited to explain the court’s discretion to affirm on any ground but preference to remand issues not addressed by the district court.

2. Legal Reasoning

The court begins with the Garcetti/Pickering framework and emphasizes the first element’s “practical” nature after Lane: the question is whether the speech “itself” was ordinarily within Timmins’s professional duties. It then takes a fact-sensitive view of her job: she was hired to provide legal advice to the Board in executive sessions and to carry out litigation tasks (pleadings, discovery, strategy). Those duties are inward-facing and client-directed.

Three strands of reasoning drive the result:

The Lane correction to Garcetti. The district court’s approach—treating speech as “pursuant to” duties because it “owed its existence to” her job and related to her work product—misreads Garcetti in light of Lane. The Tenth Circuit explicitly repudiates pre-Lane shorthand to that effect and centers the analysis on whether speaking to the press and residents was within what Timmins was “paid to do.”
The audience factor and chain of command. While many facts matter (job description, frequency, subject matter, audience, and any legal obligation to speak), the recipient of the speech carries special weight here. Timmins spoke “outside the chain of command,” publicly, to the press and to private citizens. The court observes that few government employees have a duty to inform or sway public opinion, and when they do not, such outward communication is ordinarily citizen speech—even if the employee hopes to improve agency performance or stop wrongdoing.
Professional norms bolster the conclusion. The panel notes that, if anything, the ethics of lawyering suggest a lack of duty to make such public disclosures (and possible prohibitions absent exceptions). That point does not decide the ethics question; rather, it underscores that outward public advocacy against the client is not a typical function of a government lawyer’s job.

The court then addresses and rejects defense arguments:

“Public-facing” role. It is common for public employees, including litigators, to interact with outside parties (e.g., opposing counsel, courts), but that general fact does not imply a duty to criticize the employer to the press or residents. Nothing in the complaint suggests Timmins was tasked with public relations or public advocacy against the Board’s decisions.
High-ranking status. While authority and official significance can sometimes make speech more likely to be job-related, it is not dispositive. Here, the content and target of Timmins’s speech point away from official duties.
Similarity to internal advice. The fact that Timmins’s external comments mirrored her internal advice does not convert the external speech into job duties; Lane rejects such content-based collapses of the inquiry.

Having resolved step one in Timmins’s favor at the pleading stage, the court declines to reach alternative bases for affirmance (whether the speech involved a matter of public concern, the Pickering balance, causation, or qualified immunity). Those issues, and any potential waivers, are left for the district court on remand. The panel also notes that it does not address statements Timmins made at public meetings because she did not specifically press those on appeal.

3. Impact and Implications

This opinion meaningfully refines First Amendment doctrine in the Tenth Circuit in several ways:

Clear alignment with Lane and rejection of pre-Lane shorthand. The court expressly disavows earlier formulations that unprotected speech includes any that “relates to” duties or “owes its existence” to employment. The inquiry is task-focused: was the speech itself part of what the employee was hired to do?
Elevated importance of audience. Communications to the press and public—outside the chain of command—will rarely be “pursuant to” duties absent a defined public communications role. This will matter across roles such as in-house counsel, auditors, compliance officers, investigators, and senior administrators.
Government lawyers and ethics. For public counsel, the court’s reasoning highlights that outward whistleblowing is typically not an assigned duty and may be ethically constrained, which simultaneously strengthens step-one protection (not part of the job) while foreshadowing complex assessments at steps two and three (public concern and Pickering balancing) where client confidentiality, privilege, and litigation risk may figure in the government employer’s side of the balance.
Pleading-stage survivability. Defendants will find it harder to obtain Rule 12(b)(6) dismissals on the “pursuant to duties” prong simply by showing the speech concerned work-related matters. Plaintiffs who alleged external whistleblowing to public audiences are more likely to proceed to discovery and the Pickering balance.
Qualified immunity and further litigation. Because the court left qualified immunity for remand, public officials still may succeed if the right was not clearly established at the time of the conduct or under the specific facts. But post-Lane and now post-Timmins, the contours of step one are more clearly established in the Tenth Circuit.

Complex Concepts Simplified

Garcetti/Pickering test (five elements):
1. Speech must not be made pursuant to official duties (citizen speech).
2. Speech must address a matter of public concern.
3. Employer’s interests must not outweigh employee’s speech interests (Pickering balance).
4. Speech must be a motivating factor in the adverse employment action.
5. Employer would not have made the same decision absent the speech.
The first three are usually legal questions for the court; the last two are typically factual and for the jury.
“Pursuant to official duties”: After Lane, the question is whether making the statement to that audience in that way was part of what the employee was hired to do—not merely whether the topic relates to work or information learned on the job.
“Audience matters” factor: Speech to supervisors or within the organization is more likely to be part of duties; speech to the public or media is less likely to be, unless the job specifically includes public communications on the subject.
“Public concern”: Topics like corruption, open meetings violations, destruction of public records, and misuse of public resources typically qualify; however, courts still analyze context and content.
Pickering balancing: Weighs the employee’s interest in speaking and the public’s interest in hearing it against the employer’s need for efficient operations, confidentiality, harmony, and effective service. For lawyers, confidentiality and litigation posture can be weighty employer interests.
Qualified immunity: Shields individual officials from damages unless the plaintiff shows a constitutional violation and that the right was clearly established at the time. The Tenth Circuit left this issue for the district court.
Rule 12(b)(6): A motion to dismiss tests the legal sufficiency of the complaint’s allegations, which are taken as true at that stage. Timmins cleared step one at the pleading stage because, taking her allegations as true, public criticism to press/residents was not part of her job duties.
Attorney-client privilege and confidentiality (Colo. RPC 1.6): Lawyers owe duties not to disclose client information, subject to limited exceptions (e.g., to prevent certain crimes). The court references these norms not to decide ethics, but to show outward public disclosures are not ordinarily within a government lawyer’s assigned duties.

Conclusion

Timmins v. Plotkin is a significant clarification of Garcetti step one in the Tenth Circuit. The court squarely aligns with Lane v. Franks, holding that external whistleblowing by a government lawyer to the press and public is not, without more, speech “pursuant to” official duties—even if it closely relates to the employee’s work and rests on information acquired through employment. By disavowing pre-Lane “owes its existence” and “relates to duties” formulations and emphasizing the importance of audience and assigned function, the decision strengthens First Amendment protections for public employees who take concerns outside the chain of command on matters of public concern.

The ruling does not resolve whether Timmins’s speech satisfies the remaining Garcetti/Pickering elements, nor does it decide qualified immunity. Those issues remain for the district court on remand. But the panel’s precedential holding provides clear guidance: in the Tenth Circuit, external speech to the press and public by public employees—especially by government lawyers—will rarely be considered part of their official duties absent a specific job assignment to engage in such public communications. As a result, more such claims will survive the pleading stage, and the constitutional analysis will move to public-concern, balancing, causation, and immunity questions.