Brasslett v. Cota, 84-1555

Decision Date09 February 1985
Docket NumberNo. 84-1555,84-1555
Citation761 F.2d 827
PartiesDuane P. BRASSLETT, Plaintiff, Appellant, v. Raymond J. COTA, Jr., et al., Defendants, Appellees. . Heard
CourtU.S. Court of Appeals — First Circuit

Theodore S. Curtis, Jr., Orono, Me., with whom Curtis & Griffin, Orono, Me., was on brief, for plaintiff, appellant.

Andrew M. Mead, Bangor, Me., with whom Mitchell & Stearns, Bangor, Me., was on brief, for defendants, appellees.

Before TORRUELLA and ALDRICH, Circuit Judges, and PETTINE, * Senior District Judge.

PETTINE, Senior District Judge.

The action now on appeal before this court was instituted by Duane Brasslett, former fire chief of the Town of Orono, Maine. Brasslett sued the Town and the Town Manager, Raymond J. Cota, Jr., for violations of 42 U.S.C. Sec. 1983. He alleged that the Town, through the action of the Manager, unlawfully discharged him in violation of his rights under the First Amendment to the United States Constitution when it terminated him in retaliation for remarks he made during a television interview. He also claimed the defendants violated his rights under the due process and equal protection clauses of the Fourteenth Amendment and various provisions of state law. Brasslett sought declaratory and injunctive relief, reinstatement as fire chief, damages, and attorney's fees pursuant to 42 U.S.C. Sec. 1988. Counsel for both parties agreed to submit the case to the trial judge for decision on the merits based on a closed documentary record. The judge subsequently issued a memorandum decision rejecting each of the plaintiff's legal claims. Brasslett v. Cota et al., C.A. No. 83-0007-B [Memorandum Opinion]. Brasslett now appeals those rulings. We reverse the district court's decision on the plaintiff's First Amendment claim and hold that the defendants, in discharging Brasslett from his position as fire chief, unlawfully retaliated against him for exercising his First Amendment rights to free speech.

THE FACTS

Because the rather lengthy facts of this case are critical to our disposition on appeal, we must recount them in some detail.

The defendant/appellee Town of Orono is a political subdivision of the state of Maine which operates under a council-manager form of government. The Town Council [Council] is a legislative body consisting of seven council members elected to staggered terms. The Town Manager [Manager] is appointed by the Council and enjoys considerable authority to manage town affairs.

Defendant/appellee Raymond J. Cota, Jr. is presently the Town Manager of Orono, and held that office at all times relevant to this case.

The administration of the Town's personnel system is one of the primary responsibilities of the Town Manager. The Town government is divided into a number of departments. The Manager appoints department heads to indefinite terms of employment, subject to approval by the Council. The Town Charter authorizes the Manager to discipline all supervisory personnel, and to remove department heads for cause. It contains a set of personnel rules and regulations which delineates types of employee conduct constituting "sufficient cause for disciplinary action." These rules include ten rather specific grounds for discipline as well as an eleventh more general provision authorizing personnel action in "any other such instance or situation of such seriousness that disciplinary action is considered warranted."

A town employee who is discharged pursuant to these regulations is entitled under the Charter to a written statement of reasons for dismissal. In addition, the employee may challenge the decision through certain established grievance procedures. After attempting informally to resolve the grievance with the Town Manager, the employee may seek review of the action by the Personnel Appeals Board [Appeals Board]. 1 After hearing the appeal, the Appeals Board issues a recommendation for remedial action to the Town Manager. The Manager's decision whether to follow the recommendation is discretionary and shall be final.

On December 3, 1979, the Manager appointed the plaintiff/appellant Duane Brasslett to the position of Town Fire Chief. Brasslett served Orono in that capacity until the Manager discharged him on December 14, 1982. During his tenure, Brasslett's work as a fireman was commendable. The district court, however, discussed three particular incidents at length, which cast a more negative light on Brasslett's job performance. These incidents are relevant to the Town Manager's motivation for ultimately terminating the plaintiff.

First, during August of 1982, the Manager suspended Brasslett for thirty days for transferring property to a private individual without using a competitive bidding process and for conduct unbecoming a public official. Specifically, Brasslett had sold a city owned pick-up truck to a private party and neglected to account for the proceeds for a period of approximately five weeks following the sale. Brasslett appealed the suspension to the Appeals Board, which recommended that the Manager reduce the term of the suspension to fifteen days. The Manager followed that recommendation.

The second incident occurred around June 15, 1982, when Chief Brasslett authorized a fireman to remove a nonoperational department owned jeep to the fireman's residence to attempt repairs at no cost to the town. After a council member informed the Manager that the jeep had been seen elsewhere in town, the Manager requested an explanation from Brasslett. Brasslett responded through a memorandum stating that a fireman was repairing the jeep in his garage. The Manager made a notation on the memo asking Brasslett to keep him posted on the status of the jeep, since "past history would indicate this is a sensitive issue." Brasslett later returned the jeep to the town garage at the Manager's request, but the incident did not result in any disciplinary action against the Fire Chief.

The final incident is the primary focus of the instant lawsuit, which the plaintiff asserts was the impetus for his discharge. On December 4, 1982, Chief Brasslett granted a television interview to a local station to discuss Orono's fire fighting capabilities. The station requested the interview after hearing from an anonymous phone caller on December 3, that the town Barbara Bousquet: Friday night, the rear end dropped out of Orono's eighteen year old pumper truck. It was responding to a chemical fire at the University of Maine. Fire Chief Brasslett says it's the latest in a series of problems.

had only one operational fire truck. The interview was conducted at the fire station where the plaintiff appeared in dress uniform. The interviewer extensively edited the actual interview prior to its broadcast and the deleted portions are no longer available. The following is the actual text of the broadcast version:

Chief Duane Brasslett: Well, right now, we've got two of 'em out of service; this particular truck, which is our lead truck, has been out of service for four weeks, and it has multiple problems; it's got a cracked frame, it's got power steering unit problems, it's got rear end spring problems.

Bousquet: How much did this cost when you bought it?

Chief Brasslett: Thirty Thousand Five Hundred.

Bousquet: And how much have you put into it in repairs?

Chief Brasslett: We've put Twenty Thousand dollars in repairs in the last twelve years; that's just major repairs; another Eighteen Thousand Dollars in minor maintenance on it such as gauges, lines, other things like that.

Bousquet: Two of Orono's three pumper trucks were bought new; the third, a tanker and an aerial ladder truck were bought used. Brasslett says a major problem is that the Town buys trucks at the lowest cost, and usually not equipped with the specifications Brasslett needs. As a result, the trucks fall apart rapidly. Right now, what does the Town of Orono have for fire protection?

Chief Brasslett: A 1959 Ford, Front mount pump.

Bousquet: That's it?

Chief Brasslett: That's it.

Bousquet: Brasslett has used up his Five Thousand Dollars maintenance budget for this year and a Two Thousand Dollar emergency loan from the City. Last night Brasslett advised city manager Ray Cota of the latest breakdown. Cota said he would get a mechanic to work on the truck on Monday. Brasslett says repairs are costly and usually take weeks because of the lack of parts for older model trucks. Chief Brasslett hopes a special Council meeting will be called this Monday or Tuesday to vote on emergency funding to buy a new fire truck. If that meeting is not held, the next regular Council meeting will be held on December Thirteenth. Despite either of these meetings, Brasslett says there will be no quick cure. In Orono, I'm Barbara Bousquet, News Center.

Prior to the interview, two firemen had placed signs bearing the word "Sunkist" on one of the two disabled fire trucks in the station. Those signs appeared on the broadcast of the interview. Brasslett claimed that he had asked the interviewer not to film the signs. The cameraman could not recall the fire chief making such a request, and the interviewer expressly denied it. The cameraman did claim that he asked Brasslett whether he wanted the signs removed during the interview and that Brasslett simply did not respond.

The day after the interview was aired, the Chairman of the Town Council telephoned the Town Manager to inquire about the status of the Town's fire equipment. At this time, the Manager had not yet seen the interview. The district court found that the Town Manager thereafter received several unfavorable comments about the broadcast, and consequently went to the television station to personally view the tape. To address the growing public concern over Orono's fire fighting capabilities, he requested the station to conduct a second interview on that topic. Both the Manager and Brasslett participated in that interview, which was broadcast on December...

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