Shands v. City of Kennett

• Decision Date: 09 July 1993
• Docket Number: 92-1978,Nos. 92-1790,s. 92-1790
• Citation: 993 F.2d 1337
• Parties: Mitchell SHANDS, Don Key, Forrest Busch, Appellants, v. CITY OF KENNETT, Warren Karsten, John Mallott, Jerry Talley, John Vardell, Jingo Cole, individually and in their official capacities, Appellees. Mitchell SHANDS, Don Key, Forrest Busch, Appellees, v. CITY OF KENNETT, Warren Karsten, John Mallott, Jerry Talley, John Vardell, Jingo Cole, individually and in their official capacities, Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1337

993 F.2d 1337

Mitchell SHANDS, Don Key, Forrest Busch, Appellants, v. CITY OF KENNETT, Warren Karsten, John Mallott, Jerry Talley, John Vardell, Jingo Cole, individually and in

their official capacities, Appellees.

Mitchell SHANDS, Don Key, Forrest Busch, Appellees, v. CITY OF KENNETT, Warren Karsten, John Mallott, Jerry Talley, John Vardell, Jingo Cole, individually and in

their official capacities, Appellants.

Nos. 92-1790, 92-1978.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 16, 1992.

Decided May 21, 1993.

Rehearing and Rehearing En Banc Denied July 9, 1993.

Jim Bruce, Kennett, MO, argued for appellants.

Terry M. McVey of Kennett, argued (Mark J. Pelts, on brief), for appellees.

Before WOLLMAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BATTEY, ^* District Judge.

WOLLMAN, Circuit Judge.

Forrest Busch, Don Key, and Mitchell Shands brought this action under 42 U.S.C. § 1983 against the City of Kennett, Missouri, and several city officials: Mayor Warren Karsten, Fire Chief John Mallott, and City Councilmen Jerry Talley, John Vardell, and Jingo Cole. Plaintiffs appeal from a judgment notwithstanding the verdict entered by the district court in favor of defendants. 789 F.Supp. 989. Defendants cross-appeal from the district court's denial of their motion for a new trial. We affirm the judgment notwithstanding the verdict and therefore do not address the cross-appeal.

I.

The City of Kennett, having a population of approximately 12,000, operates a volunteer fire department. At the time of the events giving rise to this lawsuit, the department was staffed by seven full-time firemen and twenty-four volunteers. It was the dismissal of plaintiffs from their positions as part-time volunteer firemen that triggered this lawsuit.

In 1988, the fire department had three officers, all volunteers: Fire Chief Bill McMahon, Assistant Fire Chief Don Key, and Captain Bob Holder. In the fall of 1988, the Kennett City Council decided to replace McMahon with a full-time fire chief. On December 6, the council hired John Mallott for the position. Mallott is a professional fireman who had previously been living in a neighboring town. The hiring of Mallott stirred up considerable controversy within the fire department. Many department members believed that the fire department did not need a full-time chief. Other members were upset because the city had hired someone from outside the city rather than someone from within the fire department.

When Mallott became chief in January 1989, a volunteer firefighter position was vacant. David Horton, who had served as a volunteer from 1982 to 1986, applied for the position. After speaking with Horton, Mallott informed both Key and Holder that he intended to hire Horton. On March 21, 1989, Mallott recommended to the city council that Horton be hired as a firefighter. In accordance with its procedures, the city council deferred consideration of the recommendation until its next meeting, scheduled for April 4.

Having learned that Horton had been recommended for the firefighter position, plaintiff Busch spoke to Councilman Bill Wilson on March 31, 1989. Busch asked Wilson to make a motion to table the hiring of Horton for two weeks. According to Busch, he told Wilson that the fire department had a safety problem that would be taken care of in two weeks. According to Wilson, however, Busch did not mention any safety problem; rather, Busch said only that there had been some problems with Horton in the past. Wilson informed Busch that he would move to table the hiring but would need someone to second the motion.

The safety problem to which Busch allegedly referred concerned a new policy of City Light, Gas & Water (City Light), which had recently instructed the fire department not to disconnect electric and gas meters at fire scenes because it wanted only its employees to disconnect meters. Disconnecting the meters turns off a building's electricity and gas supply. Consequently, if a fire department officer wanted the meters disconnected from a building at a fire scene, he had to call City Light, which would then send one of its employees to disconnect them. Normally, the employee would arrive at the fire scene about fifteen minutes later. This policy created a problem for the firefighters, for they either had to postpone their firefighting until the City Light employee arrived or risk being injured by a live electric wire or a gas explosion.

On April 1, a number of the members of the fire department had breakfast at the fire station. As they were cleaning up afterwards, plaintiffs and Holder discussed some surplus firefighting equipment that Mallott had purchased since taking command. They thought the equipment was obsolete and dangerous. The four men also discussed the problem created by City Light's new policy. To solve the problem, they believed that the fire department needed to hire a City Light employee to disconnect meters. Busch informed the others that he had talked to Councilman Wilson about tabling the hiring of David Horton. He said that Wilson had agreed to make the motion but needed someone to second it. Key said that Councilman Cole might agree to second the motion.

Plaintiffs and Holder then went to see Cole at his place of business. They first told Cole that Mallott had purchased some equipment that they thought was unsafe. They also informed Cole about the fire department's need to hire someone authorized to disconnect meters. They said that a person who was currently working for City Light had applied for a firefighter position and that they believed he should be hired. They told Cole that Busch had spoken with Councilman Wilson about making a motion to table the hiring of David Horton and asked Cole to second the motion.

At the city council meeting on April 4, Wilson moved to table the hiring of Horton, stating that there had been problems with him in the past. Cole seconded the motion. Nonetheless, the motion was defeated, and the council voted to hire Horton. Over the next few days, Mallott learned that plaintiffs and Holder had asked Councilman Cole to table the hiring of Horton. Additionally, Mallott learned from Horton that one motive behind plaintiffs' visit to Cole was the desire to undermine Mallott's authority. Plaintiff Shands had told Horton that he had spoken with Cole to show Mallott that he [Mallott] could not get everything he wanted from the council. After obtaining the approval of Mayor Karsten and the fire department committee, Mallott dismissed plaintiffs and Holder on April 10. Their dismissal letters stated that they had been discharged for acts of insubordination and misconduct. The next day seventy-five percent of the Kennett firemen walked out in protest of the discharges.

The discharges and the walkout received considerable media coverage in Kennett. Linda Redeffer, a reporter for the Daily Dunklin Democrat, wrote a series of articles about the fire department following the discharges. In an April 11 interview, Mallott told Redeffer that the discharges were the result of "a personnel matter that was dealt with according to city policy." In a subsequent interview, Mallott told Redeffer that the men had been "insubordinate to a standing order to city policy." Mayor Karsten and Councilman Talley, chairman of the fire department committee, also spoke with Redeffer about the discharges and the walkout. In addition to speaking with Redeffer, Mallott told a television news reporter that the firemen had been discharged for acts of misconduct and insubordination.

On April 18, the four discharged firemen appeared at a city council meeting. Holder, acting as their spokesman, read a prepared statement, telling the council that they were not guilty of any wrongdoing. On May 4, the council held a special closed session to consider the discharges. Witnesses testified concerning the reasons for the discharges, and the dismissed firemen, with the aid of counsel, were allowed to question these witnesses and make their own statements. On May 14, the city council voted not to reinstate the four men. The council found that their attempt to interfere with the hiring of David Horton constituted a sufficient basis for their discharges. On May 17, the council released a statement to dispel rumors and misinformation concerning the discharges. The release stated that the discharged firemen had not been accused of or dismissed for any financial misdealings, illegal activities, or activities involving moral turpitude. Rather, the discharges were the result of fire department personnel matters.

Some two weeks later, plaintiffs filed this section 1983 action. In Count I, plaintiffs alleged that they had been discharged in retaliation for exercising their First Amendment right to free speech. In Count II, they alleged that defendants had deprived them of a Fourteenth Amendment liberty interest without due process of law. At the conclusion of a five-day trial, the jury returned verdicts in favor of all plaintiffs and against all defendants on both counts. Following the jury verdicts, defendants made a motion for judgment notwithstanding the verdict ¹ and for a new trial. The district court denied the motion for a new trial, but granted judgment notwithstanding the verdict on both counts in favor of defendants.

II.

We first consider whether the district court erred in granting defendants' motion for judgment notwithstanding the verdict on Count I, the First Amendment claim. Before addressing the specific issues raised by the First Amendment claim in this case, we outline the general framework for analyzing claims by public employees that they have been improperly discharged for exercising their right to free speech.

Whether a public employee's speech is protected by the First Amendment requires a two-step judicial inquiry. The first issue is whether the employee's speech can be "fairly characterized as constituting speech on a matter...