Greisen v. Hanken

• Decision Date: 31 May 2019
• Docket Number: No. 17-35472,17-35472
• Citation: 925 F.3d 1097
• Parties: Doug GREISEN, Plaintiff-Appellee, v. Jon HANKEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

925 F.3d 1097

Doug GREISEN, Plaintiff-Appellee,

v.Jon HANKEN, Defendant-Appellant.

No. 17-35472

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 11, 2018 Portland, Oregon

Filed May 31, 2019

Thomas M. Christ (argued) and Julie A. Smith, Cosgrave Vergeer Kester LLP, Portland, Oregon, for Defendant-Appellant.

William Allen Drew (argued) and John D. Ostrander, Elliott Ostrander & Preston P.C., Portland, Oregon, for Plaintiff-Appellee.

Before: Raymond C. Fisher, Richard R. Clifton and Consuelo M. Callahan, Circuit Judges.

FISHER, Circuit Judge:

Doug Greisen was the chief of police for the City of Scappoose, Oregon. In 2012, after more than 10 years in that position, he became suspicious about the city's accounting and budgeting practices. He worried Jon Hanken, the city manager, was hiding something; he believed Hanken was suspiciously defensive about the budget, improperly delayed paying invoices at the end of the fiscal year and had weakened the city's external auditing process. Greisen discussed his concerns with various city council members and others in city government over the following year. In the summer and fall of 2013, Hanken initiated three investigations of Greisen, suspended him, placed him on an indefinite leave and prevented him from speaking publicly, even as Hanken was releasing information about the investigations to the media. After a city review committee recommended retraction of Greisen's suspension, Hanken resigned. Hanken's replacement subsequently fired Greisen, who has since been unable to find work.

Greisen sued under 42 U.S.C. § 1983, alleging Hanken violated the First Amendment by subjecting him to adverse employment actions in retaliation for his protected speech. A jury found in Greisen's favor, and Hanken appeals.

We affirm. We hold: (1) Greisen provided sufficient detail about his speech to establish that it substantially involved a matter of public concern; (2) Greisen spoke as a private citizen rather than a public employee; (3) the district court properly concluded that Greisen's retaliation claim could be based in part on Hanken's own speech acts, in the form of defamatory communications to the media; (4) Hanken waived his argument that his actions were supported by an adequate justification; and (5) sufficient evidence supports the conclusion that Hanken's retaliatory actions proximately caused Greisen's termination, and any error in instructing the jury on proximate cause was harmless. We further hold Hanken is not entitled to qualified immunity.

I.

Jon Hanken, the former city manager of Scappoose, was responsible for overseeing the city's budget and for annually submitting a budget to the city council for review.¹ According to City Councilor Judi Ingham, Hanken generally submitted his budget to the council soon before the beginning of the budget process, allowing little time for review, and he was defensive about issues relating to the budget. In mid-2012, the city had a particularly contentious budget approval process during which some city councilors advocated unsuccessfully for a budget that would add a police officer to the force. Although Hanken had told Chief of Police Doug Greisen to support the budget at the hearing, Greisen voiced neither support nor dissent. The next day, Hanken told Greisen: "I'm mad at you. You stay on your side of City Hall. I don't want to see you over here." Greisen understood this as an admonition to focus solely on the police department, and to leave the overall city budget to Hanken.

Greisen then learned the city delayed paying police department invoices, sometimes for as long as four months, before the end of the fiscal year on July 1. He became suspicious Hanken was hiding something, and he began asking "a lot of" other people, including the city finance administrator, city councilors and other city department heads, about the city's budgeting practices during the remainder of 2012 and early 2013. He learned the city was withholding payment on invoices from other departments as well. He also learned the city had transitioned from a four-person, on-site auditing team to a one-person, off-site auditing firm, and he was concerned about the differences between the firms: by contrast to the first auditing team, he found that the new auditor was less diligent, was unable to state an opinion on the city's finances and followed different practices that he worried were inconsistent with generally accepted accounting principles. He discussed this issue with the city finance administrator and city councilors. He also took a college course on government budgeting and financial management.

Around August 2012, Greisen tried to meet with Hanken to discuss the budget. Hanken was not receptive; he told Greisen that "Ms. Ingham will be the one that will ruin your career here in the City of Scappoose." He also said Greisen "didn't know what [he was] talking about" when it came to budgeting and financial management.

In early 2013, Greisen was involved in a police pursuit during which he authorized an officer to perform a "PIT maneuver," a method of stopping a fleeing car by bumping it with a patrol vehicle, sending the fleeing car into a spin. Although the maneuver was successful, another officer, Sergeant Doug Carpenter, wrote a memo to his lieutenant alleging it was executed at a high speed without proper procedure. Carpenter's criticism focused on the officer who actually performed the PIT maneuver, but it implicated Greisen's actions as well. The lieutenant forwarded the memo to Hanken, along with his own memo clarifying Greisen's role in the maneuver and recommending an investigation.

Hanken arranged for an outside public agency to investigate Greisen. The investigation's purpose, according to the investigator, was to determine "whether or not there were policy violations," not to weigh whether a policy violation was justified. After interviewing various staff, the agency submitted a 25-page report finding Greisen committed 10 policy violations associated with the PIT maneuver.²

Upon receiving the report, Hanken suspended Greisen for two weeks without pay. According to the report's author, the subject of such an investigation would "typically" have the opportunity to be heard after the report was complete, but Hanken did not afford Greisen this opportunity. In his suspension letter, Hanken wrote: "As I draft this letter, I cannot help but wonder if you would be able to maintain your position if this report was known by or reported to the news media."

Greisen appealed his discipline to the city's Personnel Review Committee (PRC), which absolved him of wrongdoing. The PRC characterized the outside agency's report as "an erroneous mischaracterization of the events ... that also purposely omitted pertinent and material facts, to arrive at a conclusion that the PRC finds untenable, out of context and an egregious lack of professionalism." In the PRC's view, the outside agency's report was "not an objective review, but a prosecutorial document that was colored to arrive at a predetermined result." The PRC further found that "the degree of discipline issued to Police Chief Doug Greisen, for minor discrepancies of best practices, is entirely out of proportion based on the totality of the circumstances," and it recommended that "the City Manager retract, and the Scappoose City Council oversee the retraction [of], all discipline issued to Chief Greisen."

While the PIT maneuver investigation was ongoing, Hanken received another complaint about Greisen from Sergeant Carpenter, this time alleging Greisen had created a hostile work environment. In response, Hanken initiated another investigation by the same outside agency and placed Greisen on indefinite paid administrative leave pending the results of this investigation. Ultimately, the investigation concluded the allegations were not supported by substantial evidence.

In September 2013, while Greisen remained on leave, Hanken informed him the city would conduct a third investigation into his activities. This investigation charged Greisen with unauthorized financial practices relating to $ 2,500 in donations to the police department that Greisen kept in cash in his office. The investigation, conducted by the same outside agency, found five violations of city policy.³

Hanken sent letters to Greisen precluding him from speaking about the three investigations with anyone other than his wife and attorney. Hanken, however, released information about all three investigations to the media. In September 2013, soon after Greisen appealed his two-week suspension, Hanken released information about the first two investigations. He admitted at trial that his release of information about the ongoing second investigation "wasn't appropriate."

Similarly, shortly before he resigned as city manager, Hanken spoke to the media about the third investigation, stating "that a bank bag was discovered in the chief's desk and that its contents raised questions about whether the chief was maintaining an unauthorized account." Hanken also said that, "[i]f any other officer had been caught using an unauthorized account, they would have been fired on the spot." He further provided the media with a photo of the cash that he admitted looked like a photo associated with a drug bust or money seizure. Hanken conceded at trial, however, that others in the city knew about the money, that it was associated with authorized accounts and that he spoke to the press to ensure that the second and third investigations he had initiated were not discontinued.

On November 8, 2013, less than a month after the PRC issued its findings that Greisen's discipline for the PIT maneuver was unfounded, Hanken resigned, citing these findings as the reason. He was replaced by Donald Otterman in an interim capacity, and in early 2014 Otterman utilized a "no-cause" clause in Greisen's contract to terminate Greisen, who had not returned from administrative leave....