Gonzalez v. Benavides, 81-2389
| Decision Date | 15 August 1983 |
| Docket Number | No. 81-2389,81-2389 |
| Citation | 712 F.2d 142 |
| Parties | Edgardo A. GONZALEZ, Jr., Plaintiff-Appellee Cross-Appellant, v. C.Y. BENAVIDES, Jr., et al., Defendants-Appellants Cross-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Oscar J. Pena, Lawrence A. Mann, Laredo, Tex., for defendants-appellants cross-appellees.
Luis Segura, San Antonio, Tex., Oscar M. Laurel, Jr., Laredo, Tex., for plaintiff-appellee cross-appellant.
Appeals from the United States District Court for the Southern District of Texas.
Before RANDALL and HIGGINBOTHAM, Circuit Judges, and BUCHMEYER *, District Judge.
The executive director of a community action agency publicly denied that the county commissioners court had supervisory authority over his and his assistant's job performance. On his refusal to publicly retract the statement, the commissioners fired him. The commissioners appeal from a money judgment payable by the county entered after a bench trial upon a finding that the firing contravened the First Amendment. Finding that the trial court did not consider a governmental interest arguably present, we remand to allow the trial court to determine if such an interest was in fact presented and to weigh any found interest against the asserted speech laid in the context of the time, place, and manner of its making.
After eleven years as an employee of the Laredo-Webb County Community Action Agency, Edgardo A. Gonzalez, Jr. confronted the Commissioners of Webb County on May 12, 1980, and was fired. He had then been Executive Director of the agency for approximately fourteen months.
Gonzalez sued the commissioners asserting claims under 42 U.S.C. § 1983. After a bench trial, the district court rejected Gonzalez's claim that he had a protected property interest in his job or that the circumstances surrounding his discharge were such as to trigger liberty interests. The trial court further found, however, that Gonzalez was fired for conduct protected by the First Amendment and, accordingly, awarded damages and attorneys' fees. The commissioners here argue that Gonzalez's "conduct" did not enjoy First Amendment protection, that any protected interest was outweighed by the statements, and that regardless, his speech was not a substantial factor in Gonzalez's termination.
Under the Community Action Agency concept, the Webb County Commissioners Court was the governing board of the agency and had the exclusive right to hire and fire its executive director. While the Commissioners Court maintained general governance by its control over the executive director, the immediate affairs of the agency were delegated to a twenty-one-person board functionally termed "the Administering Board." The terminal confrontation had its beginning on May 9, 1980, when Gonzalez decided to fire his Deputy Director, Oscar Chavez. Before doing so, Gonzalez spoke privately with at least two of the commissioners, one of whom told him he should proceed with what he thought was right, while the other cautioned that the Commissioners Court probably would not agree.
The latter advice proved to be accurate. When Gonzalez fired Chavez, the Commissioners Court immediately added that subject to its agenda for its scheduled meeting of May 12. Following an executive session of the Commissioners Court on May 12, the court issued a public statement explaining the commissioners' view that Gonzalez lacked the authority to fire Chavez and reprimanded him for having attempted to do so. That statement also advised that Commissioner Morales was to investigate the incident. The public reprimand of Gonzalez was disseminated throughout the local media. The posted notice for the Commissioners Court meeting scheduled for June 16, 1980, included "discussion on Executive Director and Deputy Director's job performances C.A.A."
After some starting and stopping, the Commissioners Court finally convened on June 23 to consider the performance of Gonzalez and Chavez. Thereafter, in an executive session which for the most part proceeded without the attendance of Gonzalez or his attorney, the commissioners heard from twenty-six witnesses regarding the operation of the Community Action office. Despite its length, that session had no bearing on the decision to fire Gonzalez. It was at the conclusion of this executive session that Gonzalez and his attorney met with the Commissioners Court and the confrontation occurred. A transcript of the entire executive session's proceedings was received in evidence, but the colloquy among the commissioners, Gonzalez, and his attorney was often in the shorthand of conversation and occasionally less than articulate. Read in context and aided by the trial testimony, it is clear, as found by the trial court, that the dispute included a disagreement over whether it was the Administering Board or the Commissioners Court that had the legal right to evaluate the job performance of Gonzalez. Based on the transcript and the testimony at trial the trial court found:
After further discussion, Commissioner Morales summarized by describing what he perceived to be "an irreconcilable difference" between Gonzalez and the Court. He repeated the position of the Commissioners Court that they had the absolute right to hire and fire the Executive Director. He specifically asked Gonzalez whether, regardless of his personal beliefs, he would publicly recognize that authority on the part of the Commissioners Court. At this point, the Commissioners took a recess of twenty to thirty minutes to enable Gonzalez to confer with his attorney and determine his response to the request. After the recess, Gonzalez' attorney then announced the decision that Gonzalez felt he was being asked to agree with something that he considered to be a violation of policies and procedures and that he refused to do so. The Commissioners then went into public session and voted to fire Gonzalez.
The trial court first found that no statement of Gonzalez constituted a personal attack on any member of the Commissioners Court and further found that "it cannot be said that Gonzalez's statements were false, much less malicious." It also found that the dispute was a matter of legitimate public concern because it involved a discussion of the power of the County Commissioners and the Administering Board over distribution by the Community Action Agency of millions of dollars in the community. In addition, the court concluded that the day-to-day working relationship between Gonzalez and the Commissioners Court was not of such a personal and intimate nature that Gonzalez's statements regarding the relative authority of the Board and the commissioners would undermine the effectiveness of their relationship. The court noted that there was no evidence that Gonzalez disobeyed or violated any order of the commissioners; instead, he "merely expressed the opinion that certain conduct by the commissioners was contrary to proper procedures and was fired for failing to retract that statement." The court then explicitly found what it had already implicitly concluded, that Gonzalez's exercise of his First Amendment rights was a substantial and motivating factor in the decision by the commissioners to fire him. Indeed, it was stipulated at trial that Gonzalez was fired because he denied that the commissioners were his superiors.
But these findings of fact only set the factual stage for a difficult legal play. In concluding this prologue we note the standard of review recently noted in Connick v. Myers, --- U.S. ----, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983):
The Constitution has imposed upon this Court final authority to determine the meaning and application of those words of that instrument which require interpretation to resolve judicial issues. With that responsibility, we are compelled to examine for ourselves the statements in issue and the circumstances under which they are made to see whether or not they ... are of a character which the principles of the First Amendment, as adopted by the Due Process Clause of the Fourteenth Amendment, protect.
Id. at ---- n. 10, 103 S.Ct. at 1692 n. 10 (). Reading this instruction with our usual standard for reviewing facts, we conclude that our independent constitutional judgment is to be made upon the facts sustained by our clearly erroneous rule. If, for example, the trial court resolves a genuine dispute as to whether statement A rather than B was made, our review of any First Amendment question will accept the statement found by the trial court to have been made.
The commissioners rely heavily upon what has come to be termed a Pickering defense. That defense is derived from Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), as explicated by Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972), Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979), and Connick v. Myers, 461 U.S. ----, 103 S.Ct. 1684, 75 L.Ed.2d 708.
In Pickering, a school board terminated a teacher for sending a letter to a local newspaper criticizing the board's allocation of school funds between athletics and education and its methods of informing taxpayers about the need for additional revenue. The Illinois Supreme Court had rejected Pickering's First Amendment claims because it concluded that the school board's findings that the publication of the letter was "detrimental to the best interest of the school" were supported by substantial evidence. The Supreme Court found Pickering's termination violated his First Amendment rights. It emphasized that the relationship between the teacher and the school board was not so intimate as to be impaired by the letter. It...
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