Hensley v. Jasper Police Dept.

• Decision Date: 26 September 2001
• Docket Number: No. EV99-0053-C-B/H.,EV99-0053-C-B/H.
• Citation: 163 F.Supp.2d 1006
• Parties: Gregory HENSLEY, Plaintiff, v. JASPER POLICE DEPARTMENT, Jasper Board of Public Works and Safety, City Of Jasper, William J. Schmitt, Mayor of The City of Jasper, in his official and individual capacity, Juanita Boehm, in her official and individual capacity, Richard Gunselman, Police Chief of the Jasper Police Department, in his official and individual capacity, Dubois County Bank and Kenneth Steltenpohl, in his individual capacity, Defendants.
• Court: U.S. District Court — Southern District of Indiana

163 F.Supp.2d 1006

Gregory HENSLEY, Plaintiff, v. JASPER POLICE DEPARTMENT, Jasper Board of Public Works and Safety, City Of Jasper, William J. Schmitt, Mayor of The City of Jasper, in his official and individual capacity, Juanita Boehm, in her official and individual

capacity, Richard Gunselman, Police Chief of the Jasper Police Department, in his official and individual capacity, Dubois County Bank and Kenneth Steltenpohl, in his individual capacity, Defendants.

No. EV99-0053-C-B/H.

United States District Court, S.D. Indiana, Evansville Division.

September 26, 2001.

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Kevin S. Kinkade, O'Leary & Associates, Oakland, City, IN, for plaintiff.

Robert F. Stayman, Ziemer Stayman Weitzel & Shoulders, Evansville, IN, Thomas E. Wheeler, II, Locke Reynolds, LLP, Indianapolis, IN, for defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

BARKER, District Judge.

This matter is before the court on the Motion for Summary Judgment filed by defendants Jasper Police Department, Jasper Board of Public Works, City of Jasper, William Schmitt, Juanita Boehm and Richard Gunselman (hereafter the "City defendants") on November 27, 2000. (Docket Items 82-84). The plaintiff filed his response to the motion on February 21, 2001. (Docket Items 115-120). The City defendants filed their reply brief on April 5, 2001. (Docket Items 130-132).

The court, having considered the motion and being duly advised, now GRANTS the motion.

I. Summary of Hensley's remaining claims in this suit:

In the plaintiff's brief in opposition to the City defendants' summary judgment motion (Docket Item 116), Plaintiff defines the legal basis for his claims. In a prior order dated March 23, 2001, we concluded that certain of his claims are barred by the statute of limitations.¹ The remaining claims are distilled as follows:

A. Was Plaintiff terminated from his employment in violation of his First Amendment rights to free speech and right to petition the government for redress of grievances? (Count II of the Complaint.)

B. Was Plaintiff denied continued employment without due process of law? (Count II of the Complaint.)

C. Was Plaintiff deprived of liberty interests without due process? (Count III of Complaint.)

We address each of these issues seriatum in light of the facts which relate to each claim.

II. Was Plaintiff terminated from his employment in violation of his First Amendment right to free speech and right to petition the government for redress of grievances?

A. Facts:²

The court briefly summarizes the facts as follows:

The plaintiff, Gregory Hensley ("Hensley"), was a police officer with the City of Jasper. The City devised a new method of distributing the City payroll by electronic transfer to City employees' bank accounts. The City initially undertook this process on a voluntary basis but eventually required electronic transfer of payroll for all employees. Hensley opted not to have his paycheck handled this way, expressing his opposition to the process to several people, including Town Treasurer Juanita Boehm ("Boehm"). Ultimately, out of more than 400 employees, Hensley was the only one who refused to designate a bank account into which his paycheck could be electronically deposited. (Material Fact 27). Because Hensley refused to designate an account, the City deposited his paycheck electronically in an account at the Dubois County Bank. (Material Fact 28). Beginning in October 1999, when Hensley went to the Dubois County Bank to obtain the proceeds of his paycheck, the bank paid him his wages by a cashier's check but deducted a $5.00 fee for the issuance of a cashier's check, consistent with bank policy. (Material Fact 91).

Hensley objected further to these arrangements in conversations with several people, including the local prosecuting attorney. What precisely was said between Hensley, the prosecuting attorney, and the Mayor is in dispute. Thereafter, in his official capacity as a police officer, Hensley began a criminal investigation preparing fifty-two probable cause affidavits to summon defendants into court. On April 1, 1997, twenty-six affidavits were served utilizing standard prosecutor forms charging Town Treasurer Boehm and bank officer Kenneth Steltenpohl with Class D felony theft for each occasion when $5.00 had been withheld from Hensley's weekly paycheck between October 1999 and March 2000. These affidavits were delivered personally by Hensley as the arresting officer to Boehm and Steltenpohl at their places of employment, directing them to appear in court eight days later.

On April 2, 1997, Ms. Boehm, who was quite upset by Hensley's action, filed a formal complaint with the police chief. Mr. Steltenpohl made a similar complaint.

Thereafter the Jasper Board of Public Safety discharged Hensley from his employment as a police officer, for his actions and violations of departmental policies.

B. Hensley's First Amendment claim:

Hensley contends that his termination from employment was punishment for exercising his First Amendment right to free speech and his right to petition the government for redress of grievances. The City defendants have moved for summary judgment arguing that Hensley is not entitled to any relief because: (1) Hensley's statements did not involve matters of public concern; (2) Hensley's statements did not result in his transfer; and (3) each individual defendant is entitled to qualified immunity.

Recently, in Myers v. Hasara, 226 F.3d 821 (7th Cir.2000), the Seventh Circuit addressed these issues in these words:

The Supreme Court has long held that a public employee maintains a First Amendment right to speak out on matters of public concern even though she works for the government. See Pickering, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); see also Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). A public employee can be punished for exercising that right only if the facts of the case, as reasonably known to the employer, indicate that the employer's interest in promoting efficiency of public services outweighs the employee's interest in free speech. See Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994); Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Courts after Pickering have engaged in a two-part analysis to determine whether the "interests of the [employee], as a citizen, in commenting upon matters of public concern" outweighed the "interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id.

Myers, 226 F.3d at 825-26.

Though this two-part analysis involves factual determinations, the required inquiry is actually a question of law. Connick, 461 U.S. at 148 n. 7, 103 S.Ct. 1684; Biggs v. Village of Dupo, 892 F.2d 1298, 1300 n. 1 (7th Cir.1990). See also Cliff v. Board of School Com'rs of City of Indianapolis, Ind., 42 F.3d 403, 409 (7th Cir. 1994) (the question whether speech relates to a matter of public concern is a question for the judge), and Dishnow v. School Dist. of Rib Lake, 77 F.3d 194, 198 (7th Cir.1996) (the balancing of the perspectives of the speaker and his public employer is also one for the judge). We move therefore to that determination.

In Myers, the Court of Appeals analyzed the first step in this analysis — whether the employee is making a comment upon matters of public concern — as follows:

In Hulbert v. Wilhelm, 120 F.3d 648, 653 (7th Cir.1997), we re-stated the Pickering analysis as a three-part inquiry, although still addressing the core concern identified in Pickering. We held that the first part of Pickering sought to determine (1) whether the speech would be protected if uttered by a private citizen and (2) whether the speech was more than an unprotected "personal employee grievance." Hulbert, 120 F.3d at 653. If so, then we would consider the speech to meet the test for speech by a citizen on a matter of public concern. See id. A number of factors are relevant to this analysis including the content, form and context of the remarks, see Connick, 461 U.S. at 147-48, 103 S.Ct. 1684, and whether the remarks can fairly be characterized as relating to issues of "political, social, or other concern to the community." Id. at 146, 103 S.Ct. 1684.

... It is important to good government that public employees be free to expose misdeeds and illegality in their departments. Protecting such employees from unhappy government officials lies at the heart of the Pickering cases, and at the core of the First Amendment. For example, in Marshall v. Porter County Plan Commission, 32 F.3d 1215, 1218 (7th Cir.1994), the plaintiff, an employee in the building inspector's office, told the county planning commission that required inspections were not being done and provided a list showing that half of the required inspections had not been performed. The commission took no action, but later fired her in part because of her complaints regarding the building inspections. We held that the activities about which the plaintiff complained "were the type that result in the misuse of public funds and trust. These were not employment disputes or criticisms of the way that only [Plaintiff's] job was affected." Id. at 1219-20. As a matter of law, we found these comments to be about matters of public concern. Id. at 1220.

Myers, 226 F.3d at 825-26.

A statement is characterized as a matter of public concern, and not merely a personal employment grievance, if it can be "fairly considered as relating to any matter of political, social or other concern to the community." Connick, 461 U.S. at 146, 103 S.Ct. 1684. When an employee speaks "as an employee upon matters only of personal interest," the speech is not protected. Id. at 147, 103 S.Ct. 1684. To determine whether or not particular speech relates merely to internal workplace issues, the courts must conduct a case by case inquiry, looking to the...