Casey v. City of Cabool, Mo.

• Decision Date: 05 April 1994
• Docket Number: No. 93-1262,93-1262
• Citation: 12 F.3d 799
• Parties: John C. CASEY, Appellee, v. CITY OF CABOOL, MISSOURI, Jay Gentry, Individually and in the official capacity as Alderperson of the City of Cabool, Missouri; Jerry D. Roberts, Individually and in the official capacity as Alderperson of the City of Cabool, Missouri, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 799

12 F.3d 799

John C. CASEY, Appellee, v. CITY OF CABOOL, MISSOURI, Jay Gentry, Individually and in the official capacity as Alderperson of the City of Cabool Missouri; Jerry D. Roberts, Individually and in the official capacity as Alderperson of the City of Cabool Missouri, Appellants.

No. 93-1262.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 15, 1993.

Decided Dec. 28, 1993.

Rehearing and Suggestion for Rehearing

En Banc Denied April 5, 1994. ^*

Rehearing and Suggestion for Rehearing En Banc

Denied May 13, 1994.

Timothy E. Gammon, Springfield, MO, argued, for appellants.

Frank Susman, St. Louis, MO, argued, for appellee.

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The City of Cabool, Missouri ("the City") and two city council members appeal a district court judgment and award of attorney's fees in favor of John C. Casey, a former employee who brought this action under 42 U.S.C. Sec. 1983 after he was discharged. At issue is whether a municipal government may be held liable for discharging an employee for making private statements critical of city officials and policies. We hold that it may and therefore affirm.

I.

John Casey was employed by the City as a police and fire dispatcher beginning in 1981. He also held the position of fire chief for the City before resigning from that post in September of 1983. The reason for his resignation at that time, and the apparent catalyst for the present dispute, was Casey's deeply held and frequently expressed opinions on City fire department policies.

On May 3, 1990, Casey went to the office of City Administrator Michael MacPherson prior to beginning his work shift. While in MacPherson's office, Casey expressed his disapproval of certain fire department policies. When the work whistle blew at 5 o'clock, Casey reported to work at the police department across the street. A few minutes later MacPherson followed, and the conversation regarding fire department policies continued in Casey's office. At that point Casey suggested that the Missouri state auditor might be contacted about these issues, and that such scrutiny might mean trouble for the city clerk and the mayor. Casey elaborated by asserting that the clerk had employed city resources to effect repairs at her home, and that when he informed the mayor he was told that the clerk was retiring soon. Casey then told MacPherson that when the mayor was reelected he reappointed the clerk, evidently suggesting that the mayor had done something he previously indicated he would not do. Casey also apparently alleged that the clerk's son had once shown up intoxicated for duty as a volunteer fire fighter. The city produced evidence that Lynn Jones, Casey's supervisor, walked in and overheard some of the conversation.

MacPherson related the conversation to the mayor and the city clerk, and a few days later, to an executive session of the city council. MacPherson stated that Casey had no right to question city council policy, and that to do so was unacceptable, insubordinate, and disloyal. As a result, the council voted two to one to terminate Casey's employment with the City.

Casey brought this action under 42 U.S.C. Sec. 1983, alleging that he had been discharged from public employment in violation of his right to free speech. The district court entered judgment upon a jury verdict of $18,888, and awarded plaintiff attorney's fees of $65,987 and expenses of $3,294.89. The City now appeals both the judgment and the fee award.

II.

It was once the law that:

[w]ords spoken in derogation of a ... great officer of the realm, which are called scandalum magnatum, are held to be ... heinous; and, ... when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury: which is redressed ... on behalf of the crown, to inflict the punishment of imprisonment on the slanderer....

3 William Blackstone, Commentaries on the Laws of England 123-124 (1768). A revolution intervened, however, so that today "[i]t is clearly established that a State may not discharge an employee on a basis that infringes 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). This does not imply that public employees are free to say anything they wish. Only constitutionally protected speech serves as an impermissible basis for discharge of a public employee.

Even where constitutionally protected speech is involved, public employees are not free simply to speak their minds. The determination of whether a discharge for free speech was proper requires "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 Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). The question of whether Casey's discharge was permissible, then, requires (1) an inquiry into whether his speech is constitutionally protected, and (2) a balancing of his interest in free speech against the City's interest in efficient administration.

A.

The threshold question is therefore whether Casey'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, 1689, 75 L.Ed.2d 708 (1983). "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 147-148, 103 S.Ct. at 1690. Because Casey's speech amounted to straightforward criticism of government officials and policy, we hold that it falls squarely within the meaning of "speech on a matter of public concern."

Criticism, no matter how obnoxious or offensive, of government officials and their policies clearly addresses matters of public concern. See Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). In Rankin, a clerical worker in a law enforcement agency was held to have spoken on a matter of public concern when, after hearing of an attempt on the life of the president, she said, "If they go for him again, I hope they get him." Id. at 380, 107 S.Ct. at 2844. The court reasoned that the statement, made within the context of criticism of the president's policies, was clearly an expression of displeasure with those policies.

Similarly, when Casey's statements are considered in context, as Connick requires, it becomes apparent that they dealt with matters of public concern. They were made in the context of a discussion of City policy and the actions of City officials. Few topics are of greater public concern.

The City argues that, since Casey's underlying concern was the effect that City fire policy would have on his own pocketbook, his statements were really of private, and not public, concern. This reasoning is unpersuasive. A taxpayer's concerns that a City policy might raise his insurance premiums is a concern about a public policy, the effects of which are ultimately always private.

While MacPherson, the mayor, the city clerk, and the majority of the Cabool city council may have taken great offense upon hearing Casey's statements, we emphasize that offensiveness is irrelevant to the issue of whether a matter is of public concern. See Rankin, 483 U.S. at 387, 107 S.Ct. at 2898-99. Nothing that Casey is alleged to have said could be more disturbing than an expressed desire by a law enforcement employee to see criminal violence inflicted on the president. Since in the present context, the content, and not the outrageousness of the statement, is the material matter, we find that Casey's speech was on a matter of public concern.

B.

Our analysis next requires a balancing of Casey's interest in making the statement against "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35. Even if Casey's statements were on a matter of public concern, they may still serve as permissible grounds for discharge if the City can show that the statements interfere with a legitimate governmental interest in the operational efficiency of the enterprise. See Rankin, 483 U.S. at 388, 107 S.Ct. at 2899. "The State bears a burden of justifying the discharge on legitimate grounds." Rankin, 483 U.S. at 388, 107 S.Ct. at 2899.

When balancing the free speech and administrative interests, "the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose." Rankin, 483 U.S. at 388, 107 S.Ct. at 2899. The effects on discipline, harmony among co-workers, working relationships requiring loyalty and confidence, the performance of the speaker's duties, or the regularity of the operation of the enterprise are all relevant considerations. Id.

We begin our review of the application of the Pickering principles to this case with the observation that any underlying factual disputes concerning whether the speech at issue was protected should have been submitted to the jury. See Shands v. City of Kennett, 993 F.2d 1337, 1342 (8th Cir.1993). The trial court did not do that, ruling, in effect, that there were no relevant factual disputes of a submissible character. Although defendants submitted instructions submitting some factual matters to the jury, those instructions were prolix, confused, and in part clearly inappropriate. The trial court thus properly rejected them, even if there were unresolved factual disputes that deserved submission.

In any case, we believe that the trial court acted properly in ruling on the question of whether the speech in question was protected. Casey's interest in...