Mekss v. Wyoming Girls' School, State of Wyo.

• Decision Date: 12 June 1991
• Docket Number: No. 89-235,89-235
• Citation: 813 P.2d 185
• Parties: 68 Ed. Law Rep. 852 Regina MEKSS, Appellant (Petitioner), v. WYOMING GIRLS' SCHOOL, STATE of WYOMING, Appellee (Respondent).
• Court: Wyoming Supreme Court

Page 185

813 P.2d 185

68 Ed. Law Rep. 852

Regina MEKSS, Appellant (Petitioner), v. WYOMING GIRLS' SCHOOL, STATE of WYOMING, Appellee (Respondent).

No. 89-235.

Supreme Court of Wyoming.

June 12, 1991.

Rehearing Denied July 24, 1991.

Jane A. Villemez, Graves, Santini & Villemez, P.C., Cheyenne, and Stephen L. Pevar, American Civil Liberties Union, Denver, Colo., for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., for appellee.

Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.

THOMAS, Justice.

This appeal involves the delicate balance between a governmental employee's right of free speech and the authority of government officials to manage their offices. The court must decide whether the appellant, Regina Mekss (Mekss), was discharged unlawfully from her position as a bookkeeper at the Wyoming Girls' School (School) because of the exercise of her right of free speech, or whether she was discharged lawfully for conduct that was not protected. After she was discharged by the School, Mekss appealed to the Personnel Review Board. The Personnel Review Board approved the discharge as lawful, but it ordered that Mekss be paid her salary and benefits for five months, a period that coincides with the time during which the review was pending. Mekss then appealed to the district court, and the School filed a cross-appeal. The district court affirmed the action of the Personnel Review Board with respect to the discharge, but reversed the award of five months pay and benefit. In her appeal to this court, Mekss seeks reversal so that she will be reinstated and also will receive the back pay. We affirm the order of the district court with respect to the affirmance of the action of the Personnel Review Board in approving the discharge. We reverse that portion of the order of the district court that reversed the award of back pay on the ground that the district court had no jurisdiction because the School had no right to take its cross-appeal from the decision of the Personnel Review Board.

In her Brief of Appellant, Mekss states these issues:

"1. Whether a public employee has the right to speak, without reprisal upon a matter of public concern to the government agency empowered to investigate and resolve the subject of that concern.

"2. Whether Wyoming Girls' School violated Wyoming Personnel Rules in terminating Regina Mekss' employment when it did not follow the successive steps of discipline required by the Rules.

"3. Whether the Wyoming Girls' School lacked standing under the Wyoming Administrative Procedures Act to appeal the decision of the Personnel Review Board, which awarded Regina Mekss five months back pay."

The School, in its Brief of Appellee, sets forth the issues in this way:

"I. Whether a state employee can be dismissed from employment for circumventing established lines of authority and refusing to accept the disciplinary measures imposed?

"II. Whether the Wyoming Girls' School followed the procedures of the Wyoming Personnel Rules in terminating appellant?

"III. Whether the Wyoming Girls' School had standing as a party to cross-petition the decision of the personnel review board?"

The Wyoming Girls' School is the state institution created by statute to provide educational, vocational, and rehabilitative services to adolescent girls committed by the state's district courts. Sections 25-4-101 to -103, W.S.1977. It is one of the state charitable, reformatory, and penal institutions described in Wyo. Const. art. 7, § 18, which establishes the general supervision of the Board of Charities and Reform over such institutions. The governor, the secretary of state, the state treasurer, the state auditor, and the state superintendent of public instruction compose the Board of Charities and Reform (Board). Section 25-1-101, W.S.1977. The Board then appoints an executive secretary who is responsible for evaluating and reporting the condition of all institutions under the Board's control. Section 25-1-103(a) and (b)(ii), W.S.1977. The executive secretary coordinates the activities of the Board and assists in the general supervision of operation of the state's correctional, mental health, nursing home and children's institutions. The direct supervision of the day to day operations of the School are the responsibility of a superintendent who also is appointed by the Board. Section 25-1-201(b)(i) and (c), W.S.1977. The superintendent, Jack Geisler (Geisler), was charged with primary authority to employ and assign all personnel necessary to manage and carry out the mission of the school. Section 25-1-201(c), W.S.1977.

Mekss initially was employed at the school in 1984 as a night dormitory attendant. In 1985, she was transferred to the business office where she worked as a bookkeeper. This assignment permitted Mekss to utilize her training and her degree in accounting. Her employment evaluations indicate that her job performance in that position was in the competent to outstanding range. Mekss held this bookkeeping position until her dismissal in December of 1988. Because of the significance of this case and the very fine balance to be drawn, a detailed chronology of the events leading to her discharge is appropriate.

Beginning in 1987, the School experienced some problems with a few employees, particularly those who worked on the night shift. Those problems included employee dissatisfaction, intimidation of newer employees, and disregard for school policies. In March of 1988, Geisler became aware that a group of employees had held a meeting off campus to discuss concerns about conditions at the School. Geisler then issued a memorandum that invited members of the staff to come and discuss their concerns with him or with Assistant Superintendent Gary Kopsa (Kopsa).

Through the spring and summer of 1988, the problems continued and, on June 25, 1988, two employees sent an anonymous letter to K. Gary Sherman (Sherman), Executive Secretary of the Board of Charities and Reform. That letter set forth in detail concerns about staff morale, discriminatory promotion practices, the use of corporal punishment, and criticism of management at the school. Sherman advised Geisler about this letter and requested Geisler to submit a response. On July 26, Geisler sent his response to the Board, and copies were circulated among all employees at the School. Sherman found Geisler's response to be a satisfactory explanation of conditions at the School and an exoneration of any wrongdoing on the part of management.

After that, the Board received several more anonymous letters that included one written by Mekss on August 12, 1988. Statements in the anonymous letter authored by Mekss that are relevant to this proceeding include the following:

"There are grave problems in administration here at the Wyoming Girls' School which are growing progressively worse and which are very negatively affecting the morale and performance ability of the staff and, ultimately, quality of service rendered by this agency.

* * * * * *

"There is a vast difference between executive prerogative in favoring those who one perceives as hard-working (as Mr. Geisler states in his letter) and outright harassment of those who question, express a difference of perception, or offer suggestions (which is what Mr. Geisler actually does). I reiterate that many staff members would reinforce stated concerns and add many more if they were not totally intimidated. But precedents already exist of Girls' School employees who have been relentlessly harassed into submission, some even to the point of (early) retirement.

* * * * * *

"None of us cares for the unpleasantness of the situation nor for dealing with the problems via anonymous letters. I, myself, have had moments of delusion almost yearning to go to Jack Geisler offering a proposal of what the problem might be and possible suggestions so that this entire mess could be cleared up simply, quickly, finally, but one has only to sit through one or two uncensored staff meetings (a stinted event in the words of one teacher), attempt to resolve a problem in a supervisors' meeting (and we are talking very non-threatening language here), or be involved in some crisis before it becomes undeniably crystal clear that Jack Geisler will listen to the input of only a select few 'fair haired boys' and members of the 'Boys' Club' without question and that he consistently will not even allow for presentation of another point of view or the other side of the story. * * * It seems that Mr. Geisler thinks there is no need for correction or room for improvement in this position ever ! (Emphasis in original.)

* * * * * *

"It is not appropriate to have an administrator incapable of offering feedback to or correcting staff in a dignified manner.

* * * * * * "Even favored members of the "Boys' Club" have questioned Jack's judgment in several instances. I think most staff members would agree that the man has lost his objectivity, that perhaps he has grown tired or lazy after all these years, that he looks for the easy way out, that we are working with tools from the Dark Ages.

* * * * * *

"I do not know how these problems could have been dealt with in any other fashion in the current system. The grievance process is not workable in this situation. What subordinate can ever go to a boss and tell them they are making a mistake and especially in this situation where Mr. Geisler has made it abundantly clear that he does not take suggestions well, even those couched in the most non-threatening language?"

Sherman and the Board then concluded that it would be necessary to have an investigation at the School to verify the existence of any of the alleged improprieties. The corrections administrator for the state, who was Geisler's immediate supervisor, and the warden at the Women's Center were assigned to conduct a two-day investigation. That investigation was...