By Brandi O. Brown, J.D.
A deputy who was fired for public statements he made about the department’s operations during his unsuccessful campaign for the sheriff’s position can proceed with his claims against the sheriff, the Eighth Circuit ruled, denying the sheriff’s claim of qualified immunity. The court explained that, to the extent there was still any ambiguity on the matter, “a public employee cannot be terminated for making protected statements during a campaign for public office where that speech has no demonstrated impact on the efficiency of office operations.” The district court’s decision denying the sheriff’s motion for summary judgment was affirmed (Morgan v. Robinson, February 2, 2018, Shepherd, B.).
Ran, lost, fired. In 2013 and 2014 the plaintiff, a deputy with the Washington County, Nebraska, Sheriff’s Office ran against the incumbent for the sheriff’s position. He made public statements during the campaign about the department’s operations and his plans for improvement. For example, he stated that the communications system had not been completed on time, that the Fire and Rescue agencies had communications issues, that portable radio coverage was insufficient, and that the morale at the sheriff’s office was bad. Six days after the incumbent won the election, he fired the deputy, claiming that the statements violated the department’s rules of conduct.
The employee filed suit in district court, alleging claims of retaliation, due process deprivation, and breach of contract. The district court compelled arbitration on the breach of contract claim and the arbitrator ruled in the employee’s favor, reinstating his employment. When the case returned to the district court, the sheriff filed a motion for summary judgment, arguing that he was entitled to qualified immunity on the retaliation claim. The motion was denied, and the sheriff appealed.
Made as citizen, matter of public concern. After considering first whether the employee’s speech was protected by the First Amendment and applying the Pickering and Connick balancing tests, the court concluded that it was. The speech was made as a citizen on a matter of public concern, the court explained, noting that this was, in fact, conceded by sheriff’s counsel. The employee made the statements in the context of a political campaign and the content of the statements, the court explained, “shows their import to the community as a whole.” At least three of the statements related to communications and radio systems used by emergency personnel in the county. The comments did not involve a “personal conflict,” nor did they result from a strained relationship between the deputy and the sheriff. “At most,” the court explained, “the statements were critical of the manner in which [the sheriff] performed his duties as county sheriff, and ‘[s]peech that criticizes a public employer in his capacity as a public official… addresses matters of public concern.’” Moreover, the court explained, the form of the statements (made during a forum at a local high school, on the deputy’s website, and in a local newspaper) demonstrated their public import.
That determination, the court explained, raises the specter of a First Amendment claim and, from there, the court must address whether the sheriff had sufficient justification for his actions. While there was no dispute the sheriff had an interest in maintaining efficient operation of the department, if the employee’s speech “more substantially” involved matters of public concern a “stronger showing” of disruption might be necessary. Although the circuit’s precedent had been “inconsistent on the level of evidence of disruption” that must be shown to satisfy the employer’s burden, no case had put into the question the “stronger showing” requirement. In this case, the court explained, the strength of the employee’s showing meant the sheriff faced a higher burden of justification.
“Turmoil” is not enough. Although the sheriff sought to rely on an earlier Eighth Circuit decision, Nord v. Walsh Cnty., wherein a deputy sheriff had also run against the incumbent, lost, and was fired, there were key differences. The deputy in that case commented on the bad health of the sheriff and stated that he had heard the sheriff’s wife did not want him to run. He also stated that he had heard the sheriff planned to resign in two years and run for state senate. Those statements concerned the sheriff’s personal affairs, the court explained, and did not merit protection.
By contrast, the statements made by the deputy in this case were all matters of public concern and the sheriff “made an extremely minimal showing of actual or potential disruption.” He pointed mostly to testimony regarding the “uneasiness” and “turmoil” felt by employees; he presented no evidence of an actual impact on office efficiency or “discrete” incidents of disruption. In fact, the sheriff testified that the employee’s performance was, at all relevant times, satisfactory. With regard to comments about “turmoil” the court explained that such uneasiness is to be expected any time an employee runs against his or her employer.
No immunity. Having determined that the employee’s speech was protected and his discharge an adverse employment action sufficient to violate his rights, the court next considered whether the sheriff could have reasonably believed he could fire the employee for exercising that right in these circumstances. The answer was “an unequivocal ‘no.’” Public officials have been on notice since Pickering was decided in 1968, the court explained, that they cannot sanction employees for protected speech that neither impacts the employee’s official duties nor diminishes office efficiency. “To the extent that there remains any ambiguity,” the court added, “we hold that a public employee cannot be terminated for making protected statements during a campaign for public office where that speech has no demonstrated impact on the efficiency of office operations.”
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