48 F.3d 420 (9th Cir. 1995), 93-35353, Johnson v. Multnomah County, Or.

Docket Nº93-35353.
Citation48 F.3d 420
Party NameJan JOHNSON, Plaintiff-Appellant, v. MULTNOMAH COUNTY, OREGON, a political subdivision of State of Oregon; William McKinley; Paul Yarborough, Defendants-Appellees.
Case DateFebruary 16, 1995
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 420

48 F.3d 420 (9th Cir. 1995)

Jan JOHNSON, Plaintiff-Appellant,

v.

MULTNOMAH COUNTY, OREGON, a political subdivision of State

of Oregon; William McKinley; Paul Yarborough,

Defendants-Appellees.

No. 93-35353.

United States Court of Appeals, Ninth Circuit

February 16, 1995

Argued and Submitted Sept. 13, 1994.

Page 421

Thad M. Guyer, Medford, OR, for plaintiff-appellant.

Steven J. Nemirow, Deputy County Counsel, Portland, OR, for defendants-appellees.

Appeal from the United States District Court for the District of Oregon.

Before NORRIS, THOMPSON, and ALDISERT, [*] Circuit Judges.

WILLIAM A. NORRIS, Circuit Judge:

Jan Johnson appeals an adverse summary judgment on her claim for violation of her First Amendment right to free speech. Johnson claims that she was fired from her county job because of statements she made about her supervisor, statements she claims were protected by the First Amendment. The district court ruled that her speech was not protected, entered summary judgment against her Sec. 1983 claim and dismissed her pendent state law claims without prejudice. We review the summary judgement de novo. Jesinger v. Nevada Federal Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994).

I

Johnson was employed by Multnomah County as an administrative assistant in the Department of Environmental Services. 1 Her job was to assist the manager of the county Expo Center and assist in the planning and supervision of the annual county fair. When her immediate supervisor left his position, Johnson applied for his job, but was not chosen to succeed him. Johnson believed herself to be better qualified than William McKinley, the man the County hired. Soon after McKinley was hired, Johnson began making statements to coworkers and others accusing McKinley of mismanagement and possible criminal conduct. 2 According to the

Page 422

uncontroverted facts, Johnson made the following statements about McKinley:

1. He was part of a "good old boy network" and got his position as a result of undue influence.

2. He was awarding county contracts as paybacks for favors made by the "good old boy network."

3. He was involved in "restraint of trade" with a fair vendor.

4. He was allowing his friends to use the Expo for free.

5. He was not turning over to the County the proceeds from t-shirt sales at a Latoya Jackson concert at the Expo.

After McKinley became aware of these comments, Johnson was eventually fired.

II

In order to prevail in her First Amendment claim, Johnson must initially prove that her statements were constitutionally protected. Gillette v. Delmore, 886 F.2d 1194, 1197 (9th Cir.1989). Johnson's speech cannot be protected unless it "substantially involved matters of public concern." McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983); accord Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). If she is able to show that the statements were of public concern, then the burden shifts to the County to show that its legitimate administrative interests outweigh the First Amendment interest in Johnson's freedom of speech. See Pickering v. Bd. of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968); Hyland v. Wonder, 972 F.2d 1129, 1139 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2337, 124 L.Ed.2d 248 (1993). In this case, the district court did not reach the Pickering balancing test, but instead granted the County summary judgment after holding that none of Johnson's statements involved a matter of public concern.

Speech involves a matter of public concern when it can fairly be considered to relate to "any matter of political, social, or other concern to the community." Connick, 461 U.S. at 146, 103 S.Ct. at 1690. "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Id. at 147-48, 103 S.Ct. at 1690.

The County argues that Johnson's statements were not upon matters of public concern because they were false and made with a reckless disregard for the truth. 3 The County argues that recklessly false statements, like statements about matters of no public interest, are per se unprotected by the First Amendment and that the Government need show no injury to its interests before it may fire an employee for making such statements.

In support of its position, the County relies solely upon Pickering v. Bd. of Education, 391 U.S. at 563, 88 S.Ct. at 1731. In Pickering, a school board urged the Supreme Court to hold that a teacher's statements were not constitutionally protected unless he spoke "factually and accurately, commensurate with his education and experience." 391 U.S. at 568-69, 88 S.Ct. at 1735. The teacher, on the other hand, urged the Court to rule that employees' statements on matters of public concern were protected unless they were made with knowledge that they were false or with a reckless disregard for the truth. Id. at 569, 88 S.Ct. at 1735. The Supreme Court expressly declined to "lay down a general standard against which all such statements may be judged." Id. Instead, the Court considered the statements' actual interference with the school board's legitimate interests in the operation of the school and weighed those interests against the important

Page 423

counter-interest in permitting free and open discussion of issues of public concern. The Court concluded, saying

[i]n sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.

391 U.S. at 574, 88 S.Ct. at 1738 (footnote omitted). The County argues that this passage means that recklessly false statements are per se unprotected. However, the County's argument is refuted by a footnote attached to this very passage, in which the Court expressly declined to decide what protection was due recklessly false statements. Id. at n. 6. 4

In Donovan v. Reinbold, 433 F.2d 738 (9th Cir.1970), our court considered a similar situation in which a public employee was alleged to have written libelous articles in the press. Following Pickering, we stated that such speech

might be beyond First Amendment protection if the particular expression inhibits the efficient discharge of the employee's duties, or if the employee's position lends substantially greater credence to the expression than would be accorded to that of a member of the general public.

Id. at 742. Thus, we implied that the public employer must show a countervailing interest before it may terminate an employee for making statements that were recklessly false.

However, both Pickering and...

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162 practice notes
  • 929 P.2d 448 (Wash.App. Div. 2 1996), 19855-0, Wilson v. State
    • United States
    • Washington Court of Appeals of Washington
    • December 20, 1996
    ...of teacher who publicly charged racially discriminatory policies and practices within school district); Johnson v. Multnomah County, 48 F.3d 420 (9th Cir.) (firing of county employee who made statements to coworkers and others accusing her supervisor of mismanagement and possible criminal c......
  • 22 F.Supp.2d 916 (W.D.Wis. 1998), 98-C-0560, Greer v. Amesqua
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • September 25, 1998
    ...that especially true statements of public employees receive more consideration in the Pickering balance. See Johnson v. Multnomah County, 48 F.3d 420, 424-25 (9th Cir.1995) (split of circuits on issue whether recklessness of factual statements is element of Pickering balance; Seventh Circui......
  • 979 P.2d 917 (Wash.App. Div. 2 1999), 23546-3, Port of Longview v. International Raw Materials, Ltd.
    • United States
    • Washington Court of Appeals of Washington
    • July 9, 1999
    ...929 P.2d 396. Some courts place the burden upon the party asserting the retaliatory conduct, see e.g., Johnson v. Multnomah County, Or., 48 F.3d 420, 422 (9th Cir.), cert. denied, 515 U.S. 1161, 115 S.Ct. 2616, 132 L.Ed.2d 858 (1995); Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir.1......
  • 57 Cal.App.4th 595, E017954, Kirchmann v. Lake Elsinore Unified School Dist.
    • United States
    • California California Court of Appeals
    • September 3, 1997
    ...708].) Content is Page 602 " 'the greatest single factor' " in the inquiry. (Johnson v. Multnomah County, Or. (9th Cir. 1995) 48 F.3d 420, 424.) We turn first to that factor. 1. Content "[C]ourts have routinely treated speech which criticizes the substantive operations of the......
  • Request a trial to view additional results
161 cases
  • 929 P.2d 448 (Wash.App. Div. 2 1996), 19855-0, Wilson v. State
    • United States
    • Washington Court of Appeals of Washington
    • December 20, 1996
    ...of teacher who publicly charged racially discriminatory policies and practices within school district); Johnson v. Multnomah County, 48 F.3d 420 (9th Cir.) (firing of county employee who made statements to coworkers and others accusing her supervisor of mismanagement and possible criminal c......
  • 22 F.Supp.2d 916 (W.D.Wis. 1998), 98-C-0560, Greer v. Amesqua
    • United States
    • Federal Cases United States District Courts 7th Circuit Western District of Wisconsin
    • September 25, 1998
    ...that especially true statements of public employees receive more consideration in the Pickering balance. See Johnson v. Multnomah County, 48 F.3d 420, 424-25 (9th Cir.1995) (split of circuits on issue whether recklessness of factual statements is element of Pickering balance; Seventh Circui......
  • 979 P.2d 917 (Wash.App. Div. 2 1999), 23546-3, Port of Longview v. International Raw Materials, Ltd.
    • United States
    • Washington Court of Appeals of Washington
    • July 9, 1999
    ...929 P.2d 396. Some courts place the burden upon the party asserting the retaliatory conduct, see e.g., Johnson v. Multnomah County, Or., 48 F.3d 420, 422 (9th Cir.), cert. denied, 515 U.S. 1161, 115 S.Ct. 2616, 132 L.Ed.2d 858 (1995); Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir.1......
  • 57 Cal.App.4th 595, E017954, Kirchmann v. Lake Elsinore Unified School Dist.
    • United States
    • California California Court of Appeals
    • September 3, 1997
    ...708].) Content is Page 602 " 'the greatest single factor' " in the inquiry. (Johnson v. Multnomah County, Or. (9th Cir. 1995) 48 F.3d 420, 424.) We turn first to that factor. 1. Content "[C]ourts have routinely treated speech which criticizes the substantive operations of the......
  • Request a trial to view additional results
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