Barnard v. Jackson County, Mo.

• Decision Date: 17 February 1995
• Docket Number: No. 93-3758,93-3758
• Citation: 43 F.3d 1218
• Parties: 10 IER Cases 323 James A. BARNARD, Plaintiff-Appellant, v. JACKSON COUNTY, MISSOURI; Ed Growney, individually and in his official capacity as Jackson County legislator; James D. Tindall, individually and in his official capacity as Jackson County legislator; Mary Lou Smith, individually and in her official capacity as Jackson County legislator; Robert Hertzog, individually and in his official capacity as Jackson County legislator; Carol Coe, individually and in her official capacity as Jackson County legislator; Fred Arbanas, individually and in his official capacity as Jackson County legislator; Dennis Waits, individually and in his official capacity as Jackson County legislator, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1218

43 F.3d 1218

10 IER Cases 323

James A. BARNARD, Plaintiff-Appellant, v. JACKSON COUNTY, MISSOURI; Ed Growney, individually and in his official capacity as Jackson County legislator; James

D. Tindall, individually and in his official capacity as

Jackson County legislator; Mary Lou Smith, individually and

in her official capacity as Jackson County legislator;

Robert Hertzog, individually and in his official capacity as

Jackson County legislator; Carol Coe, individually and in

her official capacity as Jackson County legislator; Fred

Arbanas, individually and in his official capacity as

Jackson County legislator; Dennis Waits, individually and

in his official capacity as Jackson County legislator,

Defendants-Appellees.

No. 93-3758.

United States Court of Appeals,

Eighth Circuit.

Submitted May 9, 1994.

Decided Jan. 11, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Feb. 17, 1995.

Steven L. Hobson, Kansas City, MO, argued (Ronald Stites, on the brief), for appellant.

J. Earlene Farr, Kansas City, MO, argued, for appellee Jackson County; Thomas F. Gordon, Kansas City, MO, argued, for appellees Hertzog, Smith and Arbanas (F. Russell Millin, on the brief).

Before LOKEN, Circuit Judge, BRIGHT, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

James Barnard appeals from the district court's grant of summary judgment to Jackson County and seven individual legislators on his 42 U.S.C. Sec. 1983 cause of action, which alleged retaliatory discharge in violation of his First Amendment rights. Barnard argues that the district court misapplied the applicable law in determining that no genuine factual issue exists. We affirm in part and reverse in part.

I. BACKGROUND

James Barnard worked as the legislative auditor for Jackson County, Missouri, from 1985 until his termination by the legislature in 1990. The legislative auditor is a charter officer who is appointed by the legislature and serves at its pleasure. Barnard's responsibilities as auditor included performing or overseeing audits of various county departments and offices, conducting investigations of county entities, and such other tasks as the legislature directed him to do. ¹ The Jackson County Home Rule Charter provides that the auditor may be removed by a two-thirds vote of the nine-member legislature.

In early 1987, Barnard was informed of allegations that Carol Coe, a legislator, had engaged in certain illegal activities. Barnard brought this information to the attention of the Jackson County legislature through a written memorandum and an oral presentation at a public meeting. The matter was eventually investigated by the Jackson County Prosecuting Attorney's office. Upon completion of the investigation, the prosecutor's office made a determination that there was insufficient evidence to institute criminal proceedings against Coe.

Undaunted, Barnard contacted the local Federal Bureau of Investigation (FBI) office and provided them with information concerning the Coe matter. Barnard continued to meet with the FBI on about a monthly basis for the next three years regarding other local matters, including allegations regarding local judges, politicians, and county and city government employees. Some of these meetings took place during the hours of Barnard's employment. No prosecutions resulted from Barnard's contacts with the FBI. Barnard discontinued his meetings with the FBI on May 7, 1990. By that date, all of the county legislators were aware that Barnard had been meeting with the FBI.

A Jackson County ordinance requires the auditor to release reports and conclusions from audits directly to the legislature. ² In several instances, however, upon completing internal audits of county agencies and offices, Barnard informally discussed the results with members of the local press prior to furnishing his report to the legislature. Several legislators became aware of this practice and expressed concern because they were being subjected to inquiries from the press and constituents concerning the audits before they had received and read them. Thus, on April 27, 1990, Barnard was instructed to defer discussions with third parties concerning audits and investigations until the legislators had been provided with a copy of the audit or investigation for personal review. ³ Once an audit was presented to the legislature, it became a matter of public record and any official, including Barnard, could discuss its results with third parties. Barnard admittedly agreed to comply with this directive.

In late 1989, allegations were made that an assistant county medical examiner was in violation of certain county conflict of interest rules. The legislature directed Barnard to conduct an audit of the county medical examiner's office. Barnard formally presented the results and conclusions of the audit to the Finance and Audit Committee of the legislature on June 29, 1990. However, Barnard had met with several members of the editorial board of the Kansas City Star prior to releasing the results of the audit to the legislature, despite the instructions he received on April 27 to refrain from such acts. His avowed purpose for this meeting was to garner the Star's support for the results and conclusions he had reached in the medical examiner's audit. In July of 1990, the legislature became aware that Barnard had leaked the results of the audit to the Star prior to providing such information to the legislature. On August 13, 1990, the legislature voted 7-0 to discharge Barnard as auditor. ⁴

Barnard subsequently filed the present 42 U.S.C. Sec. 1983 action against Jackson County and the individual legislators who voted to terminate him, alleging that he was discharged in retaliation for exercising his First Amendment rights of free speech and association. Specifically, Barnard argued that his FBI contacts and discussions with the Kansas City Star concerning the medical examiner's audit were protected First Amendment activities, his interest in exercising these rights outweighs Jackson County's interest in suppressing such speech, and his discharge thus runs afoul of the First Amendment. The district court granted summary judgment in favor of the County and the individual legislators. Barnard v. Jackson County, Missouri, et al., 832 F.Supp. 1338 (W.D.Mo.1993). Barnard appeals.

II. DISCUSSION

Summary judgment is appropriate when the record as a whole shows that "there is no genuine issue as to any material fact and [ ] the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). No genuine issue exists for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting First Nat. Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)). We review a district court's grant of summary judgment de novo. United States ex rel. Glass v. Medtronic, Inc., 957 F.2d 605, 607 (8th Cir.1992).

Barnard makes the following contentions about his discussion with the Star concerning the medical examiner's audit: (1) this private contact related to matters of public concern and is protected by the First Amendment; (2) the defendants did not establish that the County's interest in maintaining efficiency in the workplace outweighed his First Amendment interests; (3) this contact was a motivating factor in the decision to terminate his employment; and (4) his First Amendment right to speak and associate with the members of the Star was so well established that the defense of qualified immunity is unavailable to the defendants. Barnard makes the following contentions about his meetings with the FBI: (1) these private meetings concerned possible criminal acts, were matters of "public concern" and outweighed the county government's interest as his employer in preventing this speech; and (2) whether these contacts were a motivating factor in his termination is a disputed issue of material fact. As a result of the above issues, Barnard contends, the district court erroneously granted the defendants summary judgment.

A. Barnard's Contacts with the Kansas City Star

It is well recognized "that a State may not discharge an employee on a basis that infringes [upon] that employee's constitutionally protected interest in freedom of speech." Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987) (citing Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972)). Courts evaluating claims by public employees who allege discharge in derogation of their First Amendment rights must engage in a two-step inquiry. First, courts must determine whether the employee's speech can be "fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir.1993) (quoting Connick, 461 U.S. at 146, 103 S.Ct. at 1689), cert. denied, --- U.S. ----, 114 S.Ct. 880, 127 L.Ed.2d 75 (1994). If so, the second inquiry involves balancing the employee's right to free speech against the interests of the state. Rankin, 483 U.S. at 388, 107 S.Ct. at 2899; Casey v. City of Cabool, Mo., 12 F.3d 799, 802-03 (8th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct. 325, 130 L.Ed.2d 285 (1994). Courts must strike "a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). These two questions are matters of law for the court to resolve. Connick, 461 U.S. at 148 n. 7, 150 n. 10, 103 S.Ct. at 1690...