Patteson v. Johnson

• Decision Date: 16 November 1983
• Docket Number: No. 82-2125,82-2125
• Citation: 721 F.2d 228
• Parties: Chuck R. PATTESON, Appellant, v. Ray A.C. JOHNSON, State Auditor of Public Accounts for the State of Nebraska, in his official capacity, and individually, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 228

721 F.2d 228

Chuck R. PATTESON, Appellant, v. Ray A.C. JOHNSON, State Auditor of Public Accounts for the State of Nebraska, in his official capacity, and individually, Appellee.

No. 82-2125.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 17, 1983.

Decided Nov. 16, 1983.

Paul L. Douglas, Atty. Gen., Sharon M. Lindgren, Asst. Atty. Gen., Lincoln, Neb., for appellee.

James B. Gessford of Perry, Perry, Witthoff, Guthery, Haase & Gessford, P.C., Lincoln, Neb., for appellant.

Before LAY, Chief Judge, and BRIGHT and ROSS, Circuit Judges.

BRIGHT, Circuit Judge.

Chuck R. Patteson, former Deputy Auditor of the Nebraska Office of Public Accounts, appeals from the district court's ¹ judgment dismissing his civil rights action against defendant Ray A.C. Johnson, the Nebraska State Auditor of Public Accounts. Johnson discharged Patteson from his position as the Deputy State Auditor and Patteson brought suit claiming the discharge violated his constitutional rights of due process and free speech. Patteson also raised claims under Nebraska law. The district court denied all of Patteson's claims. We affirm the court's judgment on the due process claim, but vacate the judgment on the first amendment claim and his similar claim under Nebraska law.

I. Background.

Patteson, a certified public accountant, began working in the Nebraska State Auditor's Office in 1975. The following year Johnson promoted Patteson to Deputy Auditor. The Deputy Auditor ranks next to the State Auditor and in his absence may act in his place.

Sometime in 1978 or 1979, the Auditor's Office, under Johnson's direction, began following the American Institute of Certified Public Accountants' Generally Accepted Auditing Standards (CPA Standards). The Auditor's Office also began following the General Accounting Office's Auditing Standards (GAO Standards), and started issuing opinions with every audit. In addition, Johnson developed his own internal auditing standards. Johnson instructed his staff to follow all of these standards. ²

On September 18, 1980, the Auditor's Office issued an audit on the operations of the Governor's Office from 1977 to 1980. The audit did not contain an opinion section, and for this reason failed to comply with the CPA Standards, the GAO Standards, or Johnson's own standards. ³ Several months later, in a March 1, 1981 story headlined, "Audit of Governor's Office Lacks Usual Endorsements," the Lincoln Sunday Journal and Star published an article asserting that the audit departed from the recently adopted accounting standards. The article noted that the audit "fails to discuss issues of potential embarrassment to Governor Charles Thone despite the fact that Johnson's staff members raised them during their audit." The article also noted that Thone and Johnson are both Republicans. Patteson, who was by this time a Republican candidate for State Treasurer, declined comment to the press.

Four days later, Patteson and Johnson, who also was a certified public accountant, attended a state senate committee hearing to testify on proposed legislation that would require the State Auditor to be a certified public accountant. Patteson appeared at the hearing at the invitation of the legislative committee of the Nebraska Society of Certified Public Accountants, which was supporting the legislation. As the hearing proceeded, it became apparent that the senators were going to inquire about the audit of the Governor's Office (Governor's Audit). At this point Johnson left the hearing, but did not ask Patteson to leave, and in fact did not give him any instructions.

Patteson remained at the hearing and testified in favor of the proposed legislation. In the course of his testimony, the legislators asked questions about the Governor's Audit. In response to a question from Senator Chambers inquiring why Patteson had not signed the Governor's Audit, Patteson stated, "In my opinion the audit did not disclose everything it needed to disclose in order for me to sign it." After that Patteson avoided direct answers to Senator Chambers' questions that pressed for additional information about the audit.

At the urging of several senators, the Nebraska State Board of Accountancy (State Board) considered the audit of the Governor's Office, and, at its March 18, 1981 meeting, referred the matter to its Ethics and Standards Enforcement Committee for an investigation. The Committee, however, delayed its investigation, and requested the Attorney General to issue an opinion outlining the scope of the State Board's jurisdiction over the matter. On June 12, 1981, the Attorney General issued an opinion stating that the State Board had no jurisdiction over the matter. That same afternoon Johnson terminated Patteson's employment. Thereafter, Patteson filed for and unsuccessfully ran against Johnson for the position of State Auditor.

Alleging claims under 42 U.S.C. Secs. 1983 and 1988, Patteson brought suit claiming his termination violated his fourteenth amendment procedural due process rights and his first amendment free speech rights. He also claimed that his termination violated state law. The district court denied Patteson's due process claim on the ground that Patteson had established no "legitimate claim of entitlement" to continued employment. The district court noted that no statute, written rule, or regulation granted a right to continued employment for the Deputy Auditor. In addition, the court ruled that custom or practice in the Auditor's Office was insufficient to vest any property interest in Patteson's continued employment.

Turning to Patteson's first amendment claim, the district court found "that a termination of the plaintiff's employment in mid-1981 would not have occurred if the plaintiff had not testified before the legislative committee." Although the district court found that Patteson's testimony constituted a substantial or motivating factor in the discharge, it nevertheless denied relief, concluding that the first amendment's protections did not extend to Patteson's speech. The district court summarily rejected Patteson's state law claims, observing that the reach of the state claims did not extend beyond the federal claims.

II. Discussion.

A. Due Process.

Individuals deprived of life, liberty or property by a state are entitled to procedural protections under the due process clause of the fourteenth amendment. Board of Regents v. Roth, 408 U.S. 564, 568, 92 S.Ct. 2701, 2704, 33 L.Ed.2d 548 (1972). In this case we are concerned only with an alleged deprivation of property. In Roth the Supreme Court stated that

[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. * * * It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims. [Id. at 577, 92 S.Ct. at 2709.]

Unless Patteson establishes a legitimate claim of entitlement to continued employment, his claim to procedural protections before dismissal must fail.

Patteson claims a property interest in his employment by reason of unwritten customs, policies, and understandings that existed in the Auditor's Office. In determining whether these practices constitute a "legitimate claim of entitlement" to continued employment, the district court properly looked to Nebraska law. Without deciding whether government employees generally have a property right to continued employment by virtue of custom or practice, the district court concluded that no custom or practice of "sufficient stoutness" created a property right in Patteson's employment as Deputy Auditor. For the reasons stated in the district court's opinion, we affirm the denial of Patteson's due process claim.

B. Free Speech.

Patteson also contends that his first amendment rights were violated. He argues, and the district court found as a factual matter, that he was fired in retaliation for testifying truthfully before the legislative committee.

A state cannot terminate public employees for exercising their first amendment rights. See Pickering v. Board of Education, 391 U.S. 563, 574, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (1968); Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S.Ct. 675, 684-85, 17 L.Ed.2d 629 (1967). Nevertheless, while employees do not relinquish their right to speak out on issues of public concern when they enter public service, those rights may be subject to the overriding interests of the state as an employer. Under the Pickering test, the court's task is to balance "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees." Pickering, supra, 391 U.S. at 568, 88 S.Ct. at 1734. In weighing these competing interests, courts are to consider both the nature of the employee's expression and the nature of the employment relationship. See Connick v. Myers, --- U.S. ----, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983); Hughes v. Whitmer, 714 F.2d 1407 (8th Cir.1983).

Applying the Pickering principles to this case, the trial court should have balanced the state's interest in ensuring the efficient operation of the Auditor's Office against Patteson's interest as a citizen, certified public accountant, and state official in truthfully testifying about pending legislation and responding to Senator Chambers' questions concerning the Governor's Audit. The district court, however, considered only the state's interest, and thus, incorrectly applied the Pickering balancing test.

The district court stated as to Patteson's testimony:

In that testimony the plaintiff made it known that he thought the audit "did not disclose everything it needed to disclose in order for [him] to sign it." Later in...