Kirchmann v. Lake Elsinore Unified School Dist.

• Decision Date: 03 September 1997
• Docket Number: No. E017954,E017954
• Citation: 57 Cal.App.4th 595,67 Cal.Rptr.2d 268
• Court: California Court of Appeals Court of Appeals
• Parties: , 120 Ed. Law Rep. 523, 97 Cal. Daily Op. Serv. 7154, 97 Daily Journal D.A.R. 11,491 Norma KIRCHMANN, Plaintiff and Appellant, v. LAKE ELSINORE UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

Page 268

67 Cal.Rptr.2d 268

57 Cal.App.4th 595, 120 Ed. Law Rep. 523,

97 Cal. Daily Op. Serv. 7154,

97 Daily Journal D.A.R. 11,491

Norma KIRCHMANN, Plaintiff and Appellant, v. LAKE ELSINORE UNIFIED SCHOOL DISTRICT, Defendant and Respondent.

No. E017954.

Court of Appeal, Fourth District, Division 2, California.

Sept. 3, 1997.

[57 Cal.App.4th 599] Donal M. Hill, San Diego, for Plaintiff and Appellant.

Atkinson, Andelson, Loya, Ruud & Romo, Sherry G. Gordon, Cerritos, and Howard J. Fulfrost, San Bernardino, for Defendant and Respondent.

RICHLI, Associate Justice.

"Government employees are often in the best position to know what ails the agencies for which they work; public debate may gain much from their informed opinions...." (Waters v. Churchill (1994) 511 U.S. 661, 674, 114 S.Ct. 1878, 1887, 128 L.Ed.2d 686, 698 (plur. opn. of O'Connor, J.).) In recognition of that fact, the First Amendment prohibits dismissal of a public employee for criticizing his or her employer unless the employee's free speech interest is outweighed by the employer's interest in avoiding disruption. (Pickering v. Board of Education (1968) 391 U.S. 563, 574, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811, 820.)

Norma Kirchmann, an employee of the Lake Elsinore Unified School District (District), was suspended for 30 days after she anonymously communicated to bidders on a District construction management contract her view that a conflict of interest existed in the selection process. Although we find the case a close one, in view of the substantial public importance of the subject on which Kirchmann spoke we conclude her right to speak was protected.

I FACTUAL AND PROCEDURAL BACKGROUND

A. Facts

Kirchmann became a permanent employee of the District in 1985. In and after July 1994, she worked as a Secretary II in the District's Facilities Department. Normand Tanguay, Assistant Superintendent for Divisions, was her supervisor.

In the spring of 1994, the District was considering retaining an outside firm to act as project manager for school construction projects. Francis & Anderson Architects was already serving as project manager for a new school the District was constructing. Mellissa Truitt, a consultant to Francis & Anderson, had principal responsibility for that project.

Tanguay directed Truitt to pursue the project manager recruitment. Truitt helped rewrite a request for proposals in June 1994. The District received about 18 responses to the request for proposals. Truitt reviewed the responses. Truitt, Tanguay and Joe Busek, the District's controller, made recommendations as to which firms should be interviewed.

Eventually, six firms were selected to be interviewed. The interview panel consisted of Tanguay, Truitt, Harry Wise, the head of Maintenance and Operations for the District, and Jim DiCamillo, a representative of an outside architectural firm. Francis & Anderson was one of the firms interviewed.

As chair of the panel, Tanguay had the ultimate decision which firm to recommend to the District's Governing Board (Board). After the panel discussed the applicants, Tanguay asked Truitt to draft a proposed agenda item recommending Francis & Anderson. Truitt gave the draft item to Kirchmann to be typed. As finally submitted to the Superintendent of the District for consideration, the item recommended "that Francis & Anderson Architects ... be chosen as [construction/project management] on all identified future projects."

In the early morning of October 4, 1994, Kirchmann faxed from her home to about 16 of the unsuccessful bidders a document which read: "To whom it may concern: [p] The Lake Elsinore Unified School District is being given the recommendation to hire Francis & Anderson Architects as the Construction/Project Management firm to handle the proposed projects on the agenda for this district. Normand A. Tanguay is signing the agenda item although it was written by Mellissa Truitt, Project Manager, David A. Brown Middle School and a contracted employee of Francis & Anderson. [p] As you know, she was one of the persons on the interview panel. She was also the person who checked references for the district and made the major recommendation as to the best firm for the district to hire for this contract. [p] Since there appears to be a conflict of interest, at least in the professional sense, it might be in the best interest of your company to attend the board meeting on October 11, 1994, at 6:00 p.m. and question the legalities involved."

Ultimately the matter was not placed on the Board agenda, because of a concern there might not be funding for it.

B. Procedural History

In November 1994, the District notified Kirchmann that it proposed to suspend her without pay for 30 days. The notice charged Kirchmann with failure to follow directions of a superior, dishonesty, and misuse or misappropriation of District property. The charge of failing to follow directions was based on Kirchmann's transmission of the fax after having been told by Tanguay in September 1994 that any communication with outside vendors had to be approved by Busek and Tanguay. The charges of dishonesty and After an administrative hearing, the Board accepted the hearing officer's recommendation that Kirchmann be suspended for 30 days without pay. Kirchmann filed a petition in the lower court seeking a writ of mandamus compelling the District to set aside its decision. The lower court denied relief, concluding that the District's interest in promoting the efficiency of its operations outweighed Kirchmann's free speech interest. Kirchmann appeals.

misuse of District property were based on Kirchmann's unauthorized use of the list of bidders.

II DISCUSSION

To determine whether the First Amendment prohibits Kirchmann's suspension, we must first consider whether her fax addressed a matter of public concern. (Rankin v. McPherson (1987) 483 U.S. 378, 384, 107 S.Ct. 2891, 2896-97, 97 L.Ed.2d 315, 323.) If not, her speech was not protected. If, however, Kirchmann did speak on a matter of public concern, we must balance her interest in making her statement against the interest of the District in " 'promoting the efficiency of the public services it performs through its employees.' " (Rankin v. McPherson, supra, 483 U.S. at p. 388, 107 S.Ct. at p. 2897.) Both the public concern determination and the balancing of interests are subject to independent review on appeal. (Gray v. County of Tulare (1995) 32 Cal.App.4th 1079, 1090, 38 Cal.Rptr.2d 317.)

A. Public Concern

" '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.' " (Rankin v. McPherson, supra, 483 U.S. at pp. 384-385, 107 S.Ct. at pp. 2897, quoting Connick v. Myers (1983) 461 U.S. 138, 147-148, 103 S.Ct. 1684, 1690-91, 75 L.Ed.2d 708.) Content is " 'the greatest single factor' " in the inquiry. (Johnson v. Multnomah County, Or. (9th Cir.1995) 48 F.3d 420, 424.) We turn first to that factor.

1. Content

"[C]ourts have routinely treated speech which criticizes the substantive operations of the governmental agency as a matter of public concern." (Southern Cal. Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, 728, 36 Cal.Rptr.2d 665.) "Some of the most important public employee speech" consists of statements "exposing governmental corruption, wrongdoing, or incompetence." (Hyland v. Wonder (9th Cir.1992) 972 F.2d 1129, 1138.)

The essential thrust of Kirchmann's fax was that Truitt's participation in the construction manager selection process while she was a consultant to one of the firms under consideration created at least an apparent conflict of interest. As Kirchmann notes, Government Code section 87100 of the Political Reform Act of 1974 (Gov.Code, § 81000 et seq.) states: "No public official at any level of state or local government shall make, participate in making or in any way attempt to use his official position to influence a governmental decision in which he knows or has reason to know he has a financial interest." Government Code section 87103, in turn, provides: "An official has a financial interest in a decision within the meaning of Section 87100 if it is reasonably foreseeable that the decision will have a material financial effect, distinguishable from its effect on the public generally, on the official...." These provisions are to be "liberally construed." (Gov.Code, sec.81003.)

Truitt arguably had a conflict of interest under the above provisions. Although Truitt was not an employee of the District, Government Code section 82048 defines "public official" for purposes of section 87100 to include "every member, officer, employee or consultant of a state or local government agency...." (Italics added.) A school district is a local government agency (Gov.Code, § 82041), and it is not disputed that Truitt was a consultant to the District.

Similarly, the selection of a construction management firm arguably would have a "material financial effect" on Truitt. Truitt was already serving as a consultant to the District on a number of matters, pursuant to her consulting relationship with Francis &amp However, we need not and do not decide whether Truitt in fact had a conflict of interest under section 87100. Section 87100 is significant to our analysis not to establish a substantive violation of the law, but to show the degree of public concern implicated in the content of Kirchmann's fax. Indeed, the California Supreme Court has said: "Beyond doubt, ... the regulation of 'conflict of interest' ... (e.g., § 87100 et seq.)--is a statewide concern." (Johnson v. Bradley (1992) 4 Cal.4th 389, 406, fn. 18, 14 Cal.Rptr.2d 470, 841 P.2d 990.) And a federal court recently held specifically that a possible violation of section 87100 is a matter of public concern for First Amendment purposes. (Vasquez v. City of Bell Gardens (C.D.Cal.1996) 938 F.Supp. 1487, 1496; see also Johnson...