Colson v. Grohman

• Decision Date: 26 April 1999
• Docket Number: No. 97-41388,97-41388
• Parties: 15 IER Cases 71 Joy Niday COLSON, Plaintiff-Appellant, v. Paul GROHMAN; Mike Hogg; Jack Roberts; Stella Roberts; City of Pearland, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 498

174 F.3d 498

15 IER Cases 71

Joy Niday COLSON, Plaintiff-Appellant, v. Paul GROHMAN; Mike Hogg; Jack Roberts; Stella Roberts;

City of Pearland, Defendants-Appellees.

No. 97-41388.

United States Court of Appeals, Fifth Circuit.

April 26, 1999.

David M. Feldman, Richard Alan Morris, Feldman & Rogers, Houston, TX, for Plaintiff-Appellant.

Barry Abrams, Ramon Gustave Viada, III, Abrams, Scott & Bickley, Houston, TX, for Grohman, Hogg and City of Pearland.

Maxine D. Goodman, Mark A. Carrigan, Carrigan, Lapin, Landa & Wilde, Houston, TX, for Jack and Stella Roberts.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.

KING, Chief Judge:

Plaintiff-appellant Joy Niday Colson appeals from the district court's grant of summary judgment in favor of defendants-appellees Paul Grohman, Mike Hogg, Jack Roberts, Stella Roberts, and the City of Pearland. Colson, an elected official, alleges that defendants-appellees falsely accused her of criminal acts, urged prosecutors to investigate her, and instigated a recall election against her because they disagreed with her political views and votes. Such retaliation, she asserts, violates her rights under both the First and Fourteenth Amendments. We find that the retaliatory criticism, investigations, and false accusations to which Colson maintains she was subjected are not actionable under the First Amendment. Because Colson's Fourteenth Amendment claim rests on a theory that defendants-appellees both harmed her reputation and deprived her of her constitutional right to speak without retaliation, it is foreclosed by our conclusion that she has suffered no actionable First Amendment harm. Accordingly, we affirm the district court's grant of summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because the precise nature of the harms suffered by a plaintiff claiming First Amendment retaliation is crucial to our determination of whether she has alleged a constitutional deprivation, we describe in detail the long and tortured history of this case. Plaintiff-appellant Joy Niday Colson, whose husband, Bill Colson, was a police officer in Pearland, Texas (the City), won a seat on the Pearland City Council (the Council) in May 1991. At that time, the other members of the Council were Benny Frank, D.A. Miller, Randy Weber, and Billy Wolff, who in May 1992 was replaced by David Smith. In the late summer or early fall of 1992, defendant-appellee Phillip Michael Hogg, the Pearland Police Department (PPD) Police Chief, presented his proposed PPD budget for 1993, including a pay plan for PPD employees, to the Council for adoption. Colson offered an alternative proposal (the Colson Pay Plan) that called for eliminating one of four PPD corporal positions, hiring two clerks to fill that position, and assigning two clerks to administrative duties so that another officer would be free to patrol the streets. Hogg and defendant-appellee Paul Grohman, Pearland's City Manager, opposed the Colson Pay Plan. On December 14, 1992, over Hogg's objections, the Council voted unanimously to abolish the corporal position.

According to Colson, Hogg then began using the powers of his office to retaliate against her for her opposition to his proposed budget. On January 7, 1993, Hogg submitted to Brazoria County District Attorney Jim Mapel a "confidential investigation" memorandum detailing numerous instances in which certain Pearland City Council members, including Colson, allegedly violated state open meetings or conflict-of-interest statutes. Hogg allegedly related at least two incidents that he admitted he knew did not constitute crimes. First, based on a conversation he had with Council member Benny Frank in February 1992, Hogg suggested that Colson violated the Texas Open Meetings Act (TOMA) by meeting secretly to conspire to terminate then-City Manager James DeShazer. Hogg admitted in the memorandum, however, that City Attorney Lester Rorick had informed him that Colson had committed no crime because a Council quorum had not been present at the allegedly illegal meetings. Hogg also noted that in 1981 and 1983, Bill Colson offered two other PPD officers compensation in exchange for their resigning from PPD sergeant positions so that he could be promoted more quickly, a practice that Colson claims Hogg knew was legal at the time. Although it was unusual for the District Attorney's Office to investigate such allegations, Mapel assigned Assistant District Attorney Tom Selleck to the case because of Hogg's status as Police Chief.

Colson claims that over the next few months, Hogg became increasingly frustrated by her positions on PPD issues and retaliated against her by making more false criminal accusations. First, on May 8, 1993, Hogg prepared a confidential report alleging that Colson had violated TOMA and the state nepotism statute. Some two weeks later, Hogg prepared another update accusing Colson of improperly proposing that the Council reconsider its earlier decision to discontinue disability coverage for city employees in an effort to benefit her husband, who had contracted a disabling illness. Hogg also noted:

I must add, that I am very concerned that this matter is taking so long to address. I delivered the information to Mr. Maples [sic] on January 7, 1993. Some of the subjects in this matter have been contacted, and rumors are flying. I feel that postponing actions may jeopardize this case totally.

Hogg delivered both reports to Selleck.

In response, Selleck told Hogg that if he could prove that three TOMA violations had occurred within the preceding twelve months, Selleck would take the allegations to the Brazoria County grand jury. In June 1993, however, Selleck informed Mapel that there was no basis for bringing criminal charges against the Council members. Selleck and Mapel also discussed their concern that Hogg was attempting to use the District Attorney's Office in a personal battle with Colson and other Council members. Mapel informed Hogg on June 15, 1993, that no action would be taken with respect to his allegations. Hogg claims that Mapel acknowledged that the Council members had committed "technical violations" of TOMA but considered these too minor for prosecution. The record, however, contains no other evidence that Mapel said any such thing.

At around the same time, Council member Weber requested a Council meeting to evaluate Hogg, and City Manager Grohman confided to Hogg that Colson, Miller, and Weber wanted to terminate Hogg. On June 21, 1993, the Council, with Colson absent, met in a public session for the express purpose of evaluating Hogg. Hogg read a prepared statement suggesting that the Council, in violation of TOMA and the City Charter, had decided at a private retreat not to approve any raises for police officers for fiscal year 1994. On or about July 13, Hogg filed a probable cause affidavit claiming that Miller had committed official misconduct by accepting pay from a public university while also drawing a salary from the City. Three days later, Hogg met with Selleck and Brazoria County Investigator John Blankenship and provided them with a chart of violations that Council members allegedly had committed between July 1, 1992 and July 12, 1993. The chart indicated that Colson had violated TOMA and the state nepotism statute by participating in illegal meetings and voting on a matter directly affecting her husband.

On July 19, 1993, in a closed executive session, the Council evaluated Grohman. Smith and Weber rated Grohman favorably, while Frank gave him an average score. Miller described Grohman's performance as poor, as did Colson, who criticized him for "manag[ing] with intimidation" and awarding salary increases without Council approval. At the end of the meeting, Miller and Frank requested that the Council consider terminating Grohman at its next meeting, on July 26, 1993.

Colson alleges that a furious Grohman asked Hogg to prepare recall petitions for the Council members who had criticized him, which Hogg did. ¹ The petition for Colson contained the following allegations, even though the district attorney already had declined to bring charges:

Directed to the City Council in and for the City of Pearland for the specific purpose of demanding the recall of Joy Colson, who is a duly elected Council member of the City Council in and for the City of Pearland.... Pursuant to Section 6.02 of the City of Pearland Charter, the below signed qualified voters do hereby demand the recall of Council Member Colson on the grounds of Malfeasance in Office.

Specifically we allege that Ms. Colson, while acting as a city council member, did violate The City of Pearland Charter, Sections 8.06 and 8.07, and Chapter 171(1)d, of the Local Government Code there by [sic] violating a law relating to her office as a Council member, thus rendering her actions in violation of Section 39.01 of the State Penal Code titled Official Misconduct, the same being a Class A Misdemeanor. We further allege that Ms. Colson violated these sections by deciding on the final budget of the police department for fiscal year 94 without conducting the required Public Hearing and posting the required Public notice, further that on March 8, 1993 she participated in a vote that had a direct effect on her husband's position in the Police Department. We further allege that she regularly enters into deliberations concerning matters which have a direct impact on her husband.

Hogg delivered a copy of the Colson recall petition to two individuals who requested it, Grohman and another city employee, Paul Dillon, but to no one else. Grohman delivered a copy of the Colson recall petition to defendant-appellee Stella Roberts, a private Pearland citizen and former Council member, but to no one else. Grohman and Stella Roberts then prepared a set of instructions to accompany the petitions. These instructions...