Koch v. City of Hutchinson

• Court: U.S. Court of Appeals — Tenth Circuit
• Writing for the Court: Before HOLLOWAY, Chief Judge, and McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA and BALDOCK; STEPHEN H. ANDERSON; McKAY; LOGAN
• Citation: Koch v. City of Hutchinson, 847 F.2d 1436 (10th Cir. 1988)
• Decision Date: 02 June 1988
• Docket Number: No. 83-2561,83-2561
• Parties: Thomas G. KOCH, Plaintiff-Appellant, v. CITY OF HUTCHINSON, et al., Defendants-Appellees.

Page 1436

847 F.2d 1436

3 Indiv.Empl.Rts.Cas. 873

Thomas G. KOCH, Plaintiff-Appellant, v. CITY OF HUTCHINSON, et al., Defendants-Appellees.

No. 83-2561.

United States Court of Appeals Tenth Circuit.

June 2, 1988.

Margie J. Phelps (Fred W. Phelps, Jr., with her on the briefs), Phelps-Chartered, Topeka, Kan., for plaintiff-appellant.

Robert L. Howard, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan. (Timothy B. Mustaine, Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan., and Philip H. Alexander, City Atty., Hutchinson, Kan., with him on the briefs), for defendants-appellees.

James M. Kaup, Gen. Counsel, League of Kansas Municipalities, Topeka, Kan., amicus curiae.

Before HOLLOWAY, Chief Judge, and McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA and BALDOCK, Circuit Judges.

ON REHEARING EN BANC

STEPHEN H. ANDERSON, Circuit Judge.

Plaintiff/appellant Thomas Koch was demoted from Fire Marshal for the City of Hutchinson (the "City") in part because of a written report he prepared in the course of his official duties in which he stated his professional opinion as to the cause of a fire. He contends that the report was protected speech under the First Amendment and could not therefore be the basis for his demotion. After a jury verdict in Koch's favor, the United States District Court for the District of Kansas granted the City's motion for judgment notwithstanding the verdict, set aside the jury's verdict and entered judgment for the City. A panel of this court reversed the district court's judgment. We granted rehearing en banc and, after further consideration, we affirm the district court's judgment for the City.

BACKGROUND

Koch served as Fire Marshal for the City from November 1976 until he was demoted to Fire Prevention Inspector on July 23, 1979. Koch worked under the supervision of the Fire Chief of the Hutchinson Fire Department, defendant Dallas Jones. His duties as Fire Marshal included the investigation of all fires within the City and the supervision of subordinate fire inspectors. ¹

On May 11, 1979, in pursuit of their official duties, Koch and two subordinate fire inspectors investigated a house fire in which an unattended small child died. In the course of his investigation, Koch sent various items to General Laboratories, an independent laboratory, for analysis. In its report to Koch dated May 22, 1979, the laboratory concluded that a cracked gas valve was a possible source of the fire. Although he had earlier expressed the view that the fire was accidental, Koch stated in his May 24 official report to Reno County Attorney Joseph O'Sullivan that the fire "was an aggravated arson fire." The report did not mention the analysis of the cracked gas valve by General Laboratories. ²

O'Sullivan, whose responsibility it was to determine if criminal prosecution was warranted in connection with a fire, questioned Koch's May 24 report and conclusions and, the day after he received it, asked the other two fire investigators to submit written statements on the cause of the fire. ³ Both investigators reported the fire as accidental. O'Sullivan also had asked a Kansas Bureau of Investigation ("K.B.I.") agent to investigate and report on the fire. The K.B.I. agent also determined that there was no basis for concluding that the fire resulted from arson. The agent testified that Koch "did not like us questioning his abilities" in the investigation and provided little information on his conclusion that arson caused the fire. R.Supp.Vol. XVIII at 66-67.

On May 25, in response to a request from a Hutchinson newspaper reporter, O'Sullivan released to the press the contents of Koch's report and the reports of the other investigators. On May 30, O'Sullivan, the K.B.I. agent, Koch, Fire Chief Jones, and a police detective met to discuss the situation. Although Koch testified at trial that he felt he cooperated with other officials and answered their questions, Jones, O'Sullivan and the K.B.I. agent testified that Koch was uncooperative and that Koch and O'Sullivan argued. O'Sullivan testified that, in discussing the laboratory analysis omitted from his report, Koch told him that the laboratory results were "negative" and that nothing in the laboratory report contradicted Koch's conclusion. R.Vol. XVI at 1577. Soon thereafter, a local newspaper story chronicled the dispute as to the origin of the fire.

Sometime after June 5, after learning of the actual contents of the laboratory analysis, O'Sullivan requested a police investigation of Koch because he believed Koch's omission of that analysis from his report amounted to official misconduct. The investigating detective reported that Koch became "upset" and "irrate" [sic] during the investigation, and that he "told me that he did not have to explain or defend his report to anyone." R.Vol. XIX, Pl.'s Ex. 52 at 81. ⁴ After receiving the police report, O'Sullivan wrote Jones on July 13, stating that:

The net result is a total lack of confidence in his [Koch's] opinion and in his ability to rationally and professionally conduct an investigation. This lack of confidence is not only on my part but is shared with me by the police detectives and the local K.B.I. agent. On the other hand and to the contrary we have total confidence in the other arson investigators in your department, and that not only are they pleasant and cooperative to work with but their conclusions appear based in fact and reason. On behalf of the Reno County Attorney's Office and as long as I hold this position, I will not accept a report from Chief Fire Marshall [sic] Thomas Koch as the basis of a criminal charge nor do I feel that I could ever call him as a State's witness and sponsor him as credible and reliable.

R.Supp.Vol. XIX, Pl.'s Ex. 10.

After receiving O'Sullivan's letter, Jones met with City Manager Pyle to discuss the situation and they determined to put Koch on paid leave of absence until the matter could be investigated. Jones conducted an investigation, during which he met with Koch and heard Koch's view of the situation. After completing the investigation, Jones and Pyle decided to demote Koch and he was so notified on July 23 in a letter in which Jones stated that Koch had been "uncooperative and belligerent with representatives of other investigating agencies," had not disclosed information "very important and relevant to the investigation," had by his behavior and refusal to cooperate with other investigators "destroyed necessary working relationships with these agencies," and had failed to cooperate with O'Sullivan. R.Vol. XIX Pl.'s Ex. 2. After Koch's demotion and suspension, local newspaper stories described the entire situation.

Koch subsequently filed this action in the United States District Court for the District of Kansas, alleging that his demotion violated his First, Fifth, Ninth, and Fourteenth Amendment rights and 42 U.S.C. Secs. 1983, 1985, 1986 and 1988. The district court disposed of all claims against the City Commissioners, the procedural due process claims, and the conspiracy claims in various pretrial rulings and in a partial directed verdict. ⁵ The district court denied defendants' motion for a directed verdict on the First Amendment claim and instructed the jury that Koch's conclusion in his report that the fire was caused by aggravated arson was protected speech as a matter of law, so the City was prohibited from demoting Koch on the basis of that written conclusion. By special verdict the jury found the City liable on Koch's First Amendment claim and assessed damages of $100,000. It found defendants Pyle and Jones not liable and found that the actions of Pyle and Jones in demoting Koch were "reasonable and in good faith under all of the circumstances then existing."

The City thereafter moved for judgment n.o.v., arguing that, as a matter of law, Koch's speech was unprotected under the First Amendment because it was not on a matter of "public concern" within the meaning of Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), because it failed the balancing test of Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), and because there was insufficient evidence that Koch's speech, if protected, was the substantial or motivating factor in his demotion. The district court granted the City's motion for judgment n.o.v., holding that Koch's speech was unprotected because it was an "intragovernmental communication within the scope of plaintiff's official duties" and because it did not address matters of public concern.

A divided panel of this court reversed the judgment n.o.v. and reinstated the jury's verdict, holding that the speech at issue in this case was constitutionally protected. It affirmed the district court's other rulings. We granted rehearing en banc on the issue of whether Koch's speech was constitutionally protected. ⁶

For the reasons set forth below, we hold that Koch's speech was unprotected under the First Amendment and we therefore affirm the district court's entry of judgment for the City.

DISCUSSION

Relying on Schmidt v. Fremont County School District No. 25, 558 F.2d 982 (10th Cir.1977), the City argues that Koch's speech was unprotected under a per se rule removing constitutional protection from "public employee speech that is a normal, integral part of the employee's job." Brief of Appellee City of Hutchinson Upon Rehearing En Banc at 15. ⁷ The City also argues that the speech at issue was not on a matter of public concern within the meaning of Connick v. Meyers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983), contesting the reasons provided by the panel majority opinion for finding the speech was on a matter of public concern. ⁸ Finally, the City argues that, even if Koch's speech were on a matter of public concern and were not unprotected under the Schmidt per se rule, the Pickering balancing test mandates that the speech be unprotected.

Koch argues that Schmidt has been...