Lindsey v. City of Orrick, Missouri

• Decision Date: 26 June 2007
• Docket Number: No. 06-3299.,06-3299.
• Citation: 491 F.3d 892
• Parties: Charles Daniel LINDSEY, Plaintiff-Appellee, v. CITY OF ORRICK, MISSOURI, Defendant, Shirley Taylor, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

491 F.3d 892

Charles Daniel LINDSEY, Plaintiff-Appellee, v. CITY OF ORRICK, MISSOURI, Defendant Shirley Taylor, Defendant-Appellant.

No. 06-3299.

United States Court of Appeals, Eighth Circuit.

Submitted: February 14, 2007.

Filed: June 26, 2007.

Counsel who presented argument on behalf of the appellant was Brandon D. Mizner of Kansas City, MO. Also appearing on the brief were J. Earlene Farr and Matthew J. Gist.

Counsel who presented argument on behalf of the appellee was G. Gordon Atcheson of Westwood, KS.

Before WOLLMAN, BYE, and SMITH, Circuit Judges.

BYE, Circuit Judge.

Charles Daniel Lindsey sued the City of Orrick, Missouri (the City) and its mayor, Shirley Taylor, under 42 U.S.C. § 1983 alleging an unlawful dismissal of him for accusing the City Council (Council) of violating Missouri's open meetings law, accusations he claims were constitutionally protected speech. Taylor and the City moved for summary judgment which was denied. Taylor appeals arguing the district court¹ erred in finding she was not entitled to qualified immunity. We affirm.

I

The facts viewed most favorably to Lindsey are as follows. The City employed Lindsey as its public works director from October 2001 to April 2005. His duties included maintaining the City's parks, water systems, streets, and sewers. As part of his position he was required to attend Council meetings to report about public works issues. While Lindsey did not actually live in or vote in the City, he worked for it and owned land there. Taylor was Lindsey's supervisor. The City is governed by both the mayor and a three-member elected city council. In 2003, the City sent Lindsey to a day-long training session, part of which included a two-hour seminar on Missouri's open meetings or "sunshine" law. After the seminar, Lindsey became convinced the City was violating the open meetings law by improperly entering into non-public executive sessions and passing city ordinances without public discussion. According to Council meeting minutes, Lindsey raised the open meetings issue at four different public meetings.

At a February 6, 2003, City Council meeting, Lindsey reported to the Council about his attendance at the seminar and suggested the municipality improve its sunshine law compliance by making a written policy available to the public and creating a compliance committee. At the meeting, City Attorney John Newberry told Lindsey he believed none of the closed meetings he had attended violated the sunshine law. After the meeting, Lindsey contends he met with then-Council member Tom Shrier who warned Lindsey the other Council members were mad at him for raising the sunshine law issue and told him "the best thing you could do is shut up." At an April 22, 2004, Council meeting, Lindsey questioned whether the Council had properly followed the sunshine law in its 2001 consideration of a retirement benefit ordinance which occurred prior to Lindsey's employment. His contention was the meeting where this ordinance was discussed should have been open to the public. According to Lindsey, several days later Taylor approached him behind city hall and told him the sunshine laws were none of his business and to think about what he was doing before he embarrassed the City.

At an October 20, 2004, meeting, Lindsey, believing the Council was violating the sunshine law by improperly going into executive session, read the sunshine law aloud and asked the Council not to "do an illegal meeting." Taylor and the Council subsequently did go into closed session "to have the mayor bring them up to date on a personnel issue from last month's meeting." The minutes reflect, after the meeting was reopened, there was a discussion as to the sunshine law. Finally, at a January 6, 2005, Council meeting, Lindsey addressed the Council again on the sunshine law. He asked the Council to evaluate their sunshine law compliance on February 6, 2003, with no response. He made another request again in April 2004 and since then had identified fifteen violations of the sunshine law. He described these perceived violations and told the Council they were "bypassing any open discussion" regarding new ordinances. Taylor stated the subject was "closed" as it had not been placed on the agenda prior to the meeting. Lindsey again asked the Council to review its procedures. At this point, at Taylor's direction, the Council entered a closed session purportedly to discuss personnel matters.

Lindsey testified, in 2004, he made an audiotape of one public Council meeting and made a videotape of another. During the third week of March 2005, Lindsey met with Taylor at her home. He told her he was going to schedule a meeting with an assistant attorney general to address the City's failure to comply with the sunshine law. He explained he had already called the state's attorney several times to discuss the issue. Less than a month later, on April 12, 2005, Lindsey was fired. Prior to being fired, Taylor provided Lindsey with two handwritten critiques of his work. Lindsey contended none of the job deficiencies listed in these critiques had been brought to his attention previously. Taylor gave Lindsey the second critique on April 11, 2005, which listed as a specific complaint: "Several times [Lindsey] has basically attacked the Council at the meetings and told them they were not handling city business or ordinances properly." Lindsey attempted to discuss the critique at a Council meeting that evening but was told the Council did not need to check the critique's accuracy. The next day, Taylor gave Lindsey a letter informing him he had been fired.

This litigation followed. The City and Taylor each moved for summary judgment. The district court denied the motion, finding Lindsey had engaged in protected speech, and his First Amendment right was clearly established such that a reasonable official in Taylor's position would have known it was illegal to fire Lindsey for his speech. The district court held Taylor was not entitled to qualified immunity and found there was an issue of fact as to whether Taylor fired Lindsey. Taylor appeals both the denial of qualified immunity and the district court's conclusion there was a disputed issue regarding whether she fired Lindsey.

II

A defendant can appeal a district court's denial of qualified immunity pursuant to the collateral order doctrine. Beck v. Wilson, 377 F.3d 884, 888-89 (8th Cir. 2004). "We review de novo a district court's denial of a motion for summary judgment on grounds of qualified immunity." Kahle v. Leonard, 477 F.3d 544, 550 (8th Cir.2007). "Generally, government officials are entitled to qualified immunity under section 1983 when executing discretionary functions, unless the officials violate clearly established law." Beck, 377 F.3d at 889. To determine whether Taylor is entitled to qualified immunity, we engage in a two-part analysis. "The `threshold question' is whether, taking the facts in the light most favorable to the injured party, the alleged facts demonstrate that the official's conduct violated a constitutional right." Clemmons v. Armontrout, 477 F.3d 962, 965 (8th Cir.2007). If the answer to this question is yes, we next ask whether the right is clearly established or, put another way, "whether it would be clear to a reasonable [official] that [her] conduct was unlawful in the situation [she] confronted." Id. (quoting Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).

A

Our first inquiry is whether Lindsey has asserted a First Amendment violation. In Garcetti v. Ceballos, ___ U.S. ___, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), the Supreme Court recently clarified the inquiry for whether a public employee receives First Amendment protection. As the Court reinforced: "public employees do not surrender all their First Amendment rights by reason of their employment." Id. at 1957. But to trigger constitutional protection, an employee must "speak as a citizen addressing matters of public concern." Id. (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)).

Taylor first argues Lindsey's statements regarding sunshine law compliance are not protected speech under the First Amendment because Lindsey was not speaking as a citizen and further was not speaking on a matter of public concern. Although Taylor conflates these separate inquiries, we consider each of them in turn.

The Garcetti Court clarified the "citizen" prong of the analysis, defining when a public employee speaks as a citizen rather than as an employee. In Garcetti, a deputy district attorney alleged he was transferred and demoted because he wrote a memorandum urging the dismissal of a case because of perceived misrepresentations in a search warrant affidavit. The Court held: "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Id. at 1960. The Court noted it was not dispositive that the deputy district attorney "expressed his views inside his office, rather than publicly" and the memorandum in question "concerned the subject matter of his employment." Id. at 1959. The controlling factor was that "his expressions were made pursuant to his duties as a calendar deputy." Id. at 1959-60. The Court ultimately found the deputy district attorney "did not speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal case" as this was one of his calender manager duties. Id. at 1960. After Garcetti, a public employee does not speak as a citizen if he speaks pursuant to his job duties. See McGee v. Pub. Water Supply, Dist. # 2, 471 F.3d 918, 919 (8th Cir.2006) (holding a public water supply district manager's complaints about environmental compliance, although involving matters of public concern, were made pursuant to his official...