Gray v. County of Tulare

• Decision Date: 28 February 1995
• Docket Number: No. F020753,F020753
• Citation: 32 Cal.App.4th 1079,38 Cal.Rptr.2d 317
• Parties: Herbert GRAY, Plaintiff and Respondent, v. COUNTY OF TULARE et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

Page 317

38 Cal.Rptr.2d 317

32 Cal.App.4th 1079

Herbert GRAY, Plaintiff and Respondent, v. COUNTY OF TULARE et al., Defendants and Appellants.

No. F020753.

Court of Appeal, Fifth District, California.

Feb. 28, 1995.

Rehearing Denied March 21, 1995.

Review Denied May 25, 1995.

Lita O'Neill Blatner, County Counsel, Kathleen Bales-Lange and Ronald E. Rezac, Deputy County Counsel, for defendants and appellants.

Charles A. Goldwasser, Los Angeles, for plaintiff and respondent.

OPINION

MARTIN, Acting Presiding Justice.

Herbert Gray was dismissed from his position as a captain with the Tulare County Sheriff's Department (Department) for, among other reasons, making statements in a local newspaper critical of the sheriff, Melvin Coley. Gray appealed his dismissal to the Tulare County Board of Supervisors (Board). A four-day evidentiary hearing followed before an administrative law judge who recommended to the Board that it deny the appeal. The Board adopted the recommendation, whereupon Gray filed a petition for a writ of mandate. The court granted the petition on the ground Gray's statements were protected speech and ordered a writ to issue directing the Board to set aside its action and reconsider its decision. The Board has appealed.

The question before us is whether Gray's statements were protected by the First Amendment to the United States Constitution. For the reasons set forth below, we hold they were not and reverse.

FACTUAL AND PROCEDURAL HISTORY

Bob Wiley retired as the sheriff of Tulare County in 1991, after serving in that position for 24 years. The leading candidates in the election to succeed him were his undersheriff, Doyle Hoppert, and Melvin "Butch" Coley. Coley, a former officer in the Department, had run unsuccessfully against Wiley three times previously. He won the election in November 1990 and was sworn into office on January 7 of the following year.

Herbert Gray was one of five captains in the Department, having risen to that rank after first being hired as a deputy in 1964. Gray and three of the other four captains, Larry McLaughlin, David Whaley, and Michael Scott, openly supported Hoppert during the 1990 election campaign. The fifth captain, Richard Morris, remained neutral.

Coley entered office with a low regard for Gray and some doubts about his loyalty. These doubts, according to Coley, limited his willingness to confide in Gray but did not prevent the two men from working together. Gray, for his part, assured Coley of his support. Nonetheless, relations between Coley and Gray were strained from the beginning of the new administration.

For example, Coley made several inquiries of Gray, then age 49, about rumors he (Gray) was planning to retire. Coley also asked, during what Gray characterized as an "inquisition," about reports former Sheriff Wiley had used Department staff to follow him (Coley) and tap his phones during previous elections. And, a few weeks after taking office, Coley reassigned Gray from investigations to administration while transferring what had previously been the administrative captain's biggest single responsibility, budgeting, to someone else. Gray interpreted these actions to be retaliation for his previous support of Hoppert but he did not make any formal complaint.

Gray and some of the other captains came to feel they were being excluded from any policy-making role in Coley's administration. Coley met with all the captains initially but as time passed he began to rely primarily on the senior captain, Richard Morris, and later on the newly-appointed undersheriff, Jack Tyler. Coley also sometimes bypassed the captains to consult directly with their subordinates. This practice, according to some witnesses, helped to create an atmosphere of uncertainty and mistrust within the Department. It was in this context that the present controversy arose, centering around three of Coley's actions in particular: his appointment of an undersheriff; his reassignment of Sergeant Sergio Santos; and his authorization of several internal investigations.

The Appointment of Undersheriff Tyler

On March 11, 1991, Coley appointed Jack Tyler, formerly a sergeant in the Department, to serve as his undersheriff. The appointment angered some officers, including Gray, who publicly criticized Coley for selecting someone they felt lacked the necessary experience. In an article appearing on March 14 in the Tulare Advance-Register under the headline "Coley criticized on undersheriff choice," Gray was quoted as saying, " 'I think Jack Tyler is eminently qualified as a painter, since he painted all of Coley's campaign signs,'.... I think Sheriff Coley is rewarding him with a high-paying county position he's not qualified to hold." The article also included critical comments by Captain Morris and Lieutenant Gary Harris. It concluded:

"The sheriff also acknowledged he wasn't happy with the public airing of concern about Tyler, but was resigned to it.

" 'I didn't have any idea anyone would do this,' Coley said. 'But it's their constitutional right to voice their opinion ... I don't think you can make everyone happy. There will always be someone disappointed with the appointment. I just hope every officer in the agency supports Mr. Tyler.' "

A similar article appeared the next day in the Fresno Bee.

According to Tyler, Coley was "very angry, very upset" about the articles "and felt like he needed to do something." However, Tyler convinced Coley not to take disciplinary action lest he (Tyler) lose the opportunity to earn the officers' confidence so soon after taking office. Consequently, no action was taken against the officers and none of them was instructed to refrain from making similar remarks in the future.

The Santos Reassignment

Also in March, against his captains' advice, Coley transferred Sergeant Sergio Santos from his assignment as a narcotics detective to road patrol duty. The transfer, according to Coley, was based largely on what he perceived to be a morale problem within the narcotics unit. However, Santos had also supported Hoppert during the election campaign; he regarded Coley's action as retaliatory and filed a grievance with the county personnel department. In connection with the grievance, Santos solicited written statements of support from several officers, including each of the five captains. All five provided memos attesting to Santos's qualifications and performance. Two, McLaughlin and Gray, went further and asserted the transfer was politically motivated. Gray's memo, under the heading "PERSONAL OPINION," included the following:

"1. There was no business reason to transfer Sergeant Santos.

"2. Sergeant Santos will lose prestige, substantial overtime earnings, and other benefits. He will incur considerable expense for new uniforms and possibly transportation.

"3. This is a disciplinary transfer.

"4. The reason for the disciplinary transfer is that Sergeant Santos, on his own time and with his own money, opposed newly-elected Sheriff-Elect Coley in several elections.

"5. The transfer is a grievable offense by newly-elected Sheriff Coley and a mis-use [sic ] of power for political purposes, i.e., reward political friends and punish political enemies.

"6. The transfer is a violation of Sergeant Santos' civil rights to support and campaign for the candidate of his choice on his own time and with his own money.

"7. I don't know, but I can't rule out racial motives. He was replaced by a white male sergeant who does not speak Spanish; a major portion of the narcotics cases involve non-English speaking Mexican Americans."

None of the captains discussed their memos with either Tyler or Coley before providing them to Santos. All but Gray gave their memos directly to Santos, and later provided copies to Tyler upon his request. Gray, on the other hand, sent his memo to the personnel department. Santos was later to testify he requested the memos because he had been told, as part of the grievance procedure, to submit a list of possible witnesses and a summary of their anticipated testimony. However, the personnel director denied the procedure required any such summary and described the practice of providing one as "extremely unusual."

Tyler and Coley first learned of the memos on May 9 in the course of a fact-finding interview held at the personnel department in connection with Santos's grievance. They turned the memos over to the county counsel's office for consideration as the basis for possible disciplinary action. The matter remained under evaluation until mid-July.

On July 17, Santos filed a wrongful termination suit against the county in federal district court. Copies of Gray's and Morris's memos were included in the pleadings and thus became public knowledge. Gray's memo, particularly his "personal opinion," was quoted at some length in news articles published the next day about the suit.

On July 18, Tyler served Captain McLaughlin with a notice directing him to appear for an interview to discuss his Santos memo. The notice was the first step in a disciplinary process which led eventually to McLaughlin's dismissal. Tyler served Gray with a similar notice the next day--the same day Gray's comments appeared in a local newspaper criticizing Coley for conducting internal investigations which Gray characterized as "politically motivated witch hunts."

The Internal Investigations

Early in his administration, Coley ordered several investigations into allegations of impropriety involving past and present Department employees, including Gray. These allegations included the personal use of Department funds and property, tampering with a personnel examination, internal leaks which compromised a local bookmaking investigation, and secret meetings in pursuit of a plan to divest Coley of control over the jail facilities. Coley initiated the investigations without the full knowledge and participation of all the captains, or at least against their advice. Gray in...