Brockell v. Norton

• Decision Date: 25 April 1984
• Docket Number: No. 83-1370,83-1370
• Parties: Eric BROCKELL, Appellant, v. Alma NORTON, Bill Turner, Ronald Storey, Joyce B. Hall, O.V. Adams, Ed L. Wallace, Bonner Ford, Individually and in their own official capacity as Mayor and City Council of the City of Marvell, and the City of Marvell, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 664

732 F.2d 664

Eric BROCKELL, Appellant, v. Alma NORTON, Bill Turner, Ronald Storey, Joyce B. Hall, O.V.

Adams, Ed L. Wallace, Bonner Ford, Individually and in their

own official capacity as Mayor and City Council of the City

of Marvell, and the City of Marvell, Appellees.

No. 83-1370.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 9, 1984.

Decided April 25, 1984.

L.T. Simes II, West Helena, Ark., for appellant.

Gill, Skokos, Simpson, Buford & Owen, P.A., Little Rock, Ark., for appellees.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BRIGHT, Circuit Judge.

HEANEY, Circuit Judge.

For the second time we are asked to consider the constitutionality of the discharge of Eric Brockell from his job as a radio operator-dispatcher for the Marvell, Arkansas, police department. On appeal from the first trial in this case, we decided that the discharge did not infringe upon any property or liberty interest held by Brockell and thus did not violate the due process protections of the fourteenth amendment to the United States Constitution. Brockell v. Norton, 688 F.2d 588, 590-592 (8th Cir.1982). We remanded, however, for the district court to determine whether the City and its mayor and councilors violated Brockell's first amendment right of free speech by dismissing him because he reported the alleged misconduct of a Marvell police officer to a person outside the department's chain of command. Id. at 592-594. The court on remand held that the City's application of its chain-of-command policy to discharge Brockell did not violate his first amendment rights. Brockell appeals. We reverse and remand with directions that the district court order Brockell's reinstatement and award him appropriate backpay from the City.

The facts as developed at the first trial of this matter are set forth in detail in our prior opinion. Id. at 589-590. In brief, Brockell worked as a radio operator-dispatcher for the Marvell police force since July 1, 1978. In February of 1980, he learned that part-time officer Buddy Monroe possessed a document which Brockell reasonably and in good faith believed was a copy of the certification test to be given to Monroe and others by the Arkansas State Law Enforcement Standards Commission. Brockell reported this information to Marvell Chief of Police Bill Erickson. On February 29, 1980, approximately ten days after his report to Chief Erickson, Brockell made an anonymous phone call to Captain James Virton of the Pine Bluff Police Department. Captain Virton was in charge of conducting the training course and administering the certification test to officers in the region which included Marvell.

Mayor Alma Norton and the Marvell City Council learned of Brockell's report to Captain Virton on March 11, 1980. The council voted to terminate Brockell during an executive session that same day. The City, its mayor, and its councilors have always asserted that they discharged Brockell because he violated the police department's chain of command, which required department business to be brought first to the chief of police and then, if not properly resolved, to the mayor. On June 12, 1980, Brockell sued the City and its mayor and council members, individually and in their official capacities, for deprivation of his constitutional rights under color of law in violation of 42 U.S.C. Sec. 1983 (Supp. V 1981). The district court entered judgment dismissing Brockell's action on July 15, 1981. We remanded the case on September 22, 1982.

On remand, the district court heard additional testimony and received additional evidence directed solely to Brockell's first amendment contention. The court reaffirmed the facts recounted above, but made further specific findings. It found: (1) that Brockell believed that Chief Erickson had taken no action on his report of alleged misconduct when he made the anonymous call to Captain Virton; (2) that the mayor and city council first learned of the alleged misconduct after Brockell's anonymous call; (3) that Brockell made the call on his own, without instructions to do so by Chief Erickson; (4) that Brockell either knew or should have known of the department's chain-of-command policy; (5) that Marvell is a small community of approximately 1700 persons; (6) that Brockell was personally acquainted with the mayor and city councilors, and could approach them with unresolved problems in the police department; (7) that Brockell's allegations of illegal activity by Mayor Norton in a "kickback" scheme were unfounded; (8) that Brockell was terminated because he reported his suspicions about Monroe to Captain Virton without first exhausting the method of resolving department problems within the city, i.e., he violated the chain-of-command policy; and (9) that the mayor did not participate in the council vote to discharge Brockell. Tr. at 117-121 (February 15, 1983).

From these facts, the court concluded that the first amendment did not protect Brockell's breach of the department's chain of command. It specifically labeled as "unwarranted" Brockell's assumption that further appeals through the chain of command would have been fruitless since the next link in the chain was Mayor Norton, a person whom Brockell believed would protect Monroe based on her past conduct. Id. at 122. The court held:

In any event, when I balance all the factors considered or set out in the Eighth Circuit opinion in this case, I conclude it is more important that the City be given an opportunity in situations such as this to resolve its own problems than it is to turn over the function of City Government to the chaotic and disruptive methods chosen by each particular employee of the City to be reporting matters which they think are wrong with the City, and in particular a matter that Mr. Brockell considered to be illegal. In this case, it was a matter he should have taken up through the processes of City Government, in particular the Mayor or City Council members before [he] went outside City Government.

Id. at 123.

The court then held that the mayor and individual councilors carried no malice toward Brockell and discharged him in a "good faith" attempt to enforce the chain-of-command policy. Id. at 123-124. In closing, the court declared that the individual defendants had not waived a defense of good faith immunity and that the pleadings were amended to conform to all proof presented. Id. at 125-126.

As we noted in our first opinion concerning this case, Brockell's first amendment contention turns entirely upon whether his report to Captain Virton was protected conduct under the balancing test established in Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). Brockell v. Norton, supra, 688 F.2d at 593. The City and individual defendants admit that this report was the sole reason for discharging Brockell. Cf. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977) (a plaintiff normally must show that conduct protected by the first amendment was a "substantial" or "motivating" factor in the defendant's adverse decision, shifting the burden of persuasion to the defendant to show that its decision would have been the same even absent that protected conduct). The Pickering balance generally involves weighing the interest of a public employee in commenting upon matters of public concern against the public employer's interest in promoting the efficiency of government services. Pickering v. Board of Education, supra, 391 U.S. at 568, 88 S.Ct. at 1734. Although this balancing approach relies heavily upon the facts of each individual case, the resolution of the Pickering test is a legal determination. See Connick v. Myers, --- U.S. ----, ---- n. 7, 103 S.Ct. 1684, 1690 n. 7, 75 L.Ed.2d 708, 720 n. 7 (1983); Patteson v. Johnson, 721 F.2d 228, 232 (8th Cir.1983); Hughes v. Whitmer, 714 F.2d 1407, 1418 n. 11 (8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1275, 79 L.Ed.2d 680 (1984).

We earlier recognized that the public importance of Brockell's report to Captain Virton, his mode of communication, his prior attempt to resolve the matter with Chief Erickson, the period between his report to Chief Erickson and his call to Captain Virton, and the unlikelihood of proper resolution of the matter if kept in the chain of command were factors important to the Pickering balance in this case. Brockell v. Norton, supra, 688 F.2d at 593. The district court considered each of these factors, at least implicitly, but decided that the City's interest in enforcing the chain-of-command policy in its police department outweighed the cumulation of factors favoring Brockell's conduct. Although we agree with the district court's factual assessment of the circumstances surrounding Brockell's actions, we cannot agree that Brockell's reasons for partially breaching the chain of...