Considine v. Board of County Com'rs of County of Adams, State of Colo., s. 89-1016
| Decision Date | 03 August 1990 |
| Docket Number | 89-1017,Nos. 89-1016,s. 89-1016 |
| Citation | 910 F.2d 695 |
| Parties | Jim L. CONSIDINE, Plaintiff-Appellee, v. The BOARD OF COUNTY COMMISSIONERS OF THE COUNTY OF ADAMS, STATE OF COLORADO; Steve Cramer; Ron Younger; Ron Nichol, individually and as present or former members of the Board of County Commissioners of the County of Adams; and Robert Clifton, individually and as the former County Administrator of the County of Adams, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Sandra Spencer Coleman (Michael W. Anderson and William F. Campbell, with her on the brief), of White and Steele, P.C., Denver, Colo., for plaintiff-appellee.
Patrick B. Mooney of Semple & Jackson, P.C., Denver, Colo. (Martin Semple of Semple & Jackson, P.C., Denver, Colo., and Ronald K. Olson, Acting County Atty., County of Adams, Brighton, Colo., with him on the briefs) for defendants-appellants.
Before TACHA, and BRORBY, Circuit Judges, and VAN BEBBER, * District Judge.
Defendants-appellants bring this interlocutory appeal from the order of the United States District Court for the District of Colorado denying appellants' motions for summary judgment and summary judgment based on qualified immunity as to plaintiff-appellee's First Amendment claim.
Plaintiff-appellee Considine is a former employee of Adams County, Colorado ("the county"). In 1988, he filed suit in the district court against the county and defendants Steve Cramer, Leo Younger and Robert Clifton, in their capacities as county officials and as individuals, alleging that his employment was terminated in 1985 in violation of his First and Fourteenth Amendments rights. Considine also raised pendent state claims for breach of contract, defamation, interference with contractual relations, conspiracy, promissory estoppel, and exemplary damages.
From November 1977 until June 1985, Considine served as director of the county's division of community and recreational resources. In that capacity, Considine had authority over the county's waste management, building inspections, planning department, golf course, regional park, extension service office and economic development. His position required a close working relationship with the board of county commissioners ("the board" or "the commissioners").
The planning department had authority over gravel mining operations within the county. Accordingly, the department received and processed applications for gravel operations, made recommendations thereon to the planning commission and to the board, maintained official county records and monitored the progress of gravel mining operations. Considine was notified of any problems with gravel mining operations and occasionally would personally perform on-site inspections of gravel pit operations to assess whether they were in compliance with county regulations. Consistent with his job responsibilities, Considine would determine whether any given problem should be brought to the attention of the board. If Considine felt a problem warranted board attention, he would usually bring the matter before the board himself.
While serving as division director, Considine was twice appointed by the board as project director to oversee two applications (filed in 1982 and 1983) for the operation of a hazardous waste site within the county ("the Highway 36 project"). As project director, Considine was responsible for coordinating the efforts of county staff and consultants; assimilating data and input from the applicant, opponents and the public concerning the application; and formulating a recommendation to the board through the planning commission whether the application should be approved or denied. Considine stated that it was "specifically my job to evaluate and analyze the proposals for the Highway 36 project."
Considine also had ultimate responsibility for county golf course operations. In 1984 and continuing into 1985, the commissioners undertook the construction of a new golf course. In connection with the construction of the golf course, it was determined that the Brantner ditch, which ran adjacent to the old golf course, should be relocated. The commissioners assigned this problem to Considine. Part of his responsibility was to report the problems and progress of the Brantner ditch operation to the commissioners.
As formulated in the complaint, Considine's First Amendment claim alleges that he was terminated as "a direct result of statements made and positions taken by him in regards to matters of public health, safety and welfare in connection with administrative handlings of certain gravel pit operations, ditch company contracts [the Brantner Ditch] and hazardous waste disposal sites [the Highway 36 project]."
In his answers to defendants' interrogatories, Considine identifies five gravel pits in Adams County concerning which he made statements or took positions that he contends were protected by the First Amendment. Considine claims that statements were made to the commissioners, the county administrator and other county officials and that the position taken by him concerning each pit "was one of public health, safety, and welfare." Considine identifies approximately fifty dates when he discussed the gravel pits with the commissioners and states that there were other, unspecified dates on which he made statements. In addition, Considine testified that he was terminated for discussing the gravel pits with various named members of the media.
Considine's statements addressed the adequacy of fencing at four of the gravel pits, the propriety of the underwater slope of two gravel pits, the pit operator's failure to adhere to pit reclamation plans at two pits, improper mining operations at two pits, failure to maintain a berm at one pit, improper riverbed mining at one pit, the creation of an "attractive nuisance" at one pit, and endangerment to bridge abutments at one pit.
In his deposition, Considine testified that the commissioners seemed irritated with him for bringing to them problems concerning the Adams County gravel pit. He believed the commissioners felt he was not being cooperative with them in dealing with the Mann Lake gravel pit. He felt the commissioners became irritated with his efforts and those of his staff to negotiate a resolution to problems at the Seigrist Lake gravel pit. Concerning the Zigan gravel pit, Considine recommended that the commissioners hold a show cause hearing. The commissioners held the hearing, but Considine felt they were unhappy at having to do so.
Considine contends that his statements concerning the Highway 36 project were made to the commissioners, the county administrator, the county planning department staff, the county public works division staff, the Concerned Citizens of Eastern Colorado and its members, Joe French, Esq., various named members of the press, and various named representatives of the Environmental Protection Agency ("EPA"). Considine also identifies a number of dates when his positions were discussed and states that he made "numerous" additional statements on unspecified dates.
As director in charge of processing hazardous waste site applications, Considine contends he took the position that the Highway 36 project posed a threat to the public safety in areas of police response, fire protection, and emergency preparedness and response; that the applicant did not have the financial ability to operate the site; that the applicant had not documented its reliability, competence and expertise; and that the site did not conform to various county land use plans, policies, and regulations.
Considine identifies the commissioners, the county administrator, various named county officials and employees, members of the Brantner Ditch Board of Directors and representatives of the City of Northglenn, Colorado, as recipients of his statements concerning the Brantner ditch. He states that his position on the Brantner ditch was discussed at commissioner study sessions on four specific dates and that there were "many other meetings" at which such discussions occurred, "the specific dates of which are impossible to ascertain."
Considine contends he took the position that to divert water from the old ditch to the new ditch was illegal, that the diversion of water was in violation of an agreement between the ditch company and the county and that the new ditch may not have been properly designed. In his deposition, Considine testified that these concerns were expressed at a meeting he attended with the county attorney and county administrator Clifton. At this meeting, Clifton expressed concerns that the ditch be filled as soon as possible. Considine expressed concerns about the physical integrity of the new ditch and the county attorney (not Considine) expressed concerns about the legality of diverting water into the new ditch.
After discovery, defendants moved for summary judgment on all claims. Defendants argued, inter alia, that the speech relied upon by plaintiff is not protected by the First Amendment and that defendants are entitled to qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The district court entered judgment for all defendants on plaintiff's Fourteenth Amendment and pendent state claims, 1 but preserved plaintiff's First Amendment and exemplary damages claims 2 and held that the individual defendants were not entitled to qualified immunity from suit as to plaintiff's First Amendment claim.
On appeal, defendants challenge the district court's denial of summary judgment on two grounds: (1) the speech underlying plaintiff's claim is not protected by the First...
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