Summary
distinguishing Lytle where police officer did not go outside the law enforcement community and publicly attempt to expose the police chief for suspected criminal activity
Summary of this case from Busey v. Board of County Commissioners, Cty. of Shawnee, Kan.Opinion
Case No. 02-2254-JWL.
July 11, 2003.
MEMORANDUM ORDER
Clifford Hogan brings this 42 U.S.C. § 1983 action alleging that he was demoted from Assistant Chief of Police to Patrolman II in retaliation for engaging in speech protected by the First Amendment. The matter is currently before the court on defendants City of Independence, Kansas ("the City"), Lee Bynum, and Paul Sasse's motion for summary judgment. For the reasons set forth in detail below, the motion is denied.
Mr. Hogan brings this action against the City of Independence, Kansas and its Chief of Police, Lee Bynum, and City Manager, Paul Sasse, in their individual capacities. To the extent that the complaint can be read to bring a claim against the two individuals in their official capacities, that is simply another way of pleading an action against the entity of which they are agents. Langley v. Adams County, Colo., 987 F.2d 1473, 1477 (10th Cir. 1993) (citing Hafer v. Melo, 502 U.S. 21, 24 (1991)). Mr. Hogan already has a claim against the City of Independence, Kansas. When a municipality is sued along with the municipal officers in their official capacities, the suit against the officers is redundant and should be dismissed. Burns v. Bd. of County Comm'rs of Jackson County, Kansas, 197 F. Supp.2d 1278, 1296-97 (D. Kan. 2002); Sims v. Unified Gov't of Wyandotte County/Kansas City, Kansas, 120 F. Supp.2d 938, 944 (D. Kan. 2000); Gallardo v. Bd. of County Comm'rs, 1995 WL 106366, at *2 (D. Kan. Jan. 11, 1995). As such, to the extent Mr. Hogan is attempting to bring claims against Chief Bynum and Mr. Sasse in their official capacities, the court dismisses the claims.
The following facts are uncontroverted or, if disputed, are viewed in a light most favorable to Mr. Hogan.
The events giving rise to this lawsuit can be summarized in three parts: an incident involving a cell phone conversation that included, among others, the City's Chief of Police and Emergency Medical Services ("EMS") Director; the Assistant Chief of Police's inquiry into whether the Chief of Police engaged in illegal activity during the cell phone incident; and the resulting demotion of the Assistant Chief of Police. By way of background, the City hired plaintiff Clifford Hogan in 1978 and promoted him to Assistant Chief of Police in 1985. Defendant Lee Bynum has served as Chief of Police for the City since 1981. Defendant Paul Sasse has served as the City Manager for the City since 1977. David Cowan has served as the EMS Director for the City since approximately 1998.
The Cell Phone Incident
On October 25, 2000, Pat Riddle, a friend of the Chief of Police's wife, Joan Bynum, used her cell phone to call Ms. Bynum to inform her that Ms. Riddle's husband had been injured, that they were at the emergency room, and that she would therefore be unable to make their scheduled meeting. When the call ended Ms. Riddle apparently failed to disconnect the call. As a result, when Ms. Bynum tried to hang up her residential phone, it would ring back because Ms. Riddle's cell phone was holding the line open. When Ms. Bynum answered the ring on her phone she could hear Ms. Riddle and David Cowan, the EMS Director, discussing a matter of employee discipline relating to one of the City's police officers.
Ms. Bynum then called her husband, Chief Bynum, to report the situation with Ms. Riddle's cell phone. Chief Bynum, in turn, called David Cowan at the emergency room and asked Mr. Cowan to hand the cell phone to Ms. Riddle. Chief Bynum related to Ms. Riddle that her cell phone was still on and was keeping his home telephone tied up. Chief Bynum advised that the cell phone was transmitting the conversations she was having with people around her and asked her to give the cell phone back to Mr. Cowan. Chief Bynum informed Mr. Cowan that the conversation he had been having with Ms. Riddle was being transmitted over Ms. Riddle's cell phone and told Mr. Cowan that he should not have been discussing a matter of employee discipline. Following the conversation, Chief Bynum advised Mr. Hogan, then the Assistant Chief of Police, that Mr. Cowan had revealed matters relating to another officer's discipline during a conversation with a third party at the hospital. Chief Bynum also told the City Manager, Paul Sasse, about the incident.
Mr. Hogan's Inquiry Regarding the Telephone Incident
Approximately a week after this telephone conversation, Chief Bynum took vacation but remained in Independence. He was on vacation from November 2, 2000 to November 13, 2000. On or about November 6, 2000, Mr. Hogan went to EMS to have his blood pressure checked. While there, Mr. Cowan related the facts of the cell phone incident to him. Mr. Cowan communicated that he had been at the emergency room talking to Ms. Riddle when he received a phone call from Chief Bynum, who reprimanded him for discussing confidential personnel matters with Ms. Riddle. Mr. Cowan explained that Chief Bynum learned of the conversation because Ms. Riddle's cell phone was on and Chief Bynum's wife could hear their conversation through the cell phone. Mr. Cowan made it clear in relating the story to Mr. Hogan that Chief Bynum did not overhear the conversation first-hand but instead learned of it from his wife, who was at another location and called him. After relating the story, Mr. Cowan stated he felt that someone in Mr. Hogan's department was "screwing him," and also that he "thought it was a violation of law to eavesdrop on a phone conversation." After hearing the story, Mr. Hogan advised Mr. Cowan that he felt Chief Bynum's conduct might have been illegal and twice suggested that Mr. Cowan write out a complaint. Mr. Cowan declined to do so, however. He believed he would be fired by Mr. Sasse if he did so. Nonetheless, Mr. Hogan told Mr. Cowan: "I feel that you have brought a crime to me and I have to check it out."
Mr. Hogan then returned to his office and reviewed two Kansas statutes (K.S.A. §§ 21-4001 and 21-4002) which pertain to the crimes of eavesdropping and breach of privacy. Detective Harry Smith saw Mr. Hogan reading the statutes in his office and asked him what was going on. Mr. Hogan responded: "You don't want to know." The next morning, Detective Smith, in the course of checking on an unrelated matter, initiated another conversation with Mr. Hogan in Mr. Hogan's office regarding the statutes. Detective Smith asked Mr. Hogan if he had found what he was looking for in the statutes, and Mr. Hogan responded that he wasn't sure. Mr. Hogan explained that he was reading the statute in reference to the cell phone incident. Detective Smith acknowledged that he had heard about the incident and added his unsolicited opinion that it would be difficult to establish a violation of the statute. Detective Smith then double checked with Mr. Hogan about the unrelated matter and left Mr. Hogan's office.
K.S.A. § 21-4001 defines eavesdropping in pertinent part as "[e]ntering into a private place with intent to listen surreptitiously to private conversations," or "installing or using outside a private place any device for hearing . . . sounds originating in such a place . . . without the consent of the person or persons entitled to privacy therein," or "installing or using any device . . . for the interception of any telephone . . . communication" without consent. "Private place" is defined as a place where one may reasonably expect to be safe from uninvited intrusions, "but does not include a place to which the public has lawful access." K.S.A. § 21-4001.
K.S.A. § 41-4002 defines breach of privacy in pertinent part as knowingly intercepting a telephone message without the consent of the sender or receiver, or divulging the contends of a conversation that was illegally intercepted.
In an effort to determine whether the statute had been violated, Mr. Hogan met with the Sheriff of Montgomery County, Jack Daniels, either late in the day on November 7, 2000, or early in the morning on November 8, 2000. Mr. Hogan testified that he approached Sheriff Daniels "under the belief that Chief Bynum might have committed a crime." After Mr. Hogan explained the circumstances to Sheriff Daniels and set forth the statutes, Sheriff Daniels expressed his opinion that he thought it was a gray area and that he "doubted that the county attorney would do anything about [the incident]." He added that he felt the matter should not be pursued, that he really did not think there were grounds for it, but that he definitely thought Chief Bynum's actions were unethical.
After talking with Sheriff Daniels, Mr. Hogan was still "unresolved" about whether a crime had been committed. He reported back to Mr. Cowan the next day, and told him that he and Sheriff Daniels did not feel there were grounds to pursue the matter, but they felt that Chief Bynum had acted unethically. The issue of filing a civil lawsuit was also discussed. Mr. Hogan also told Mr. Cowan that he "intended to talk to Chief Bynum about [the incident] when he returned" from vacation. The Demotion
However, the parties disagree as to who initiated the idea of Mr. Cowan potentially filing a civil lawsuit against Chief Bynum.
Defendants contend that Mr. Hogan also asked Mr. Cowan if he thought that Mr. Sasse would hire him as Chief of Police if Chief Bynum left the position. Mr. Hogan's deposition controverts this point, however. When asked in his deposition whether he asked Mr. Cowan that question, Mr. Hogan responded that the issue "came up in conversation." But Mr. Hogan added: "I didn't bring it up. [Mr. Cowan] did."
After speaking with Mr. Hogan, Mr. Cowan contacted the City Manager, Mr. Sasse, and informed him of the conversations with Mr. Hogan. He also informed Mr. Sasse that Mr. Hogan had gone to talk to Sheriff Daniels about the telephone incident. Two days later, Mr. Sasse contacted Chief Bynum about some business before the city commission that evening and also advised him that he wanted to discuss a personnel matter involving one of the Police Department's employees. After the city commission meeting, Mr. Sasse advised Chief Bynum that Mr. Cowan contacted him concerning Mr. Hogan's comments and that Mr. Sasse was setting a meeting the next morning to discuss the matter. The next morning, November 10, 2000, Mr. Sasse, Mr. Cowan, and Chief Bynum met in Mr. Sasse's office. The three discussed Mr. Cowan's conversations with Mr. Hogan that occurred on November 6 and 7, 2000. Mr. Sasse asked Mr. Cowan to document his conversations with Mr. Hogan. Chief Bynum then contacted Detective Smith to discuss what he knew of Mr. Hogan's activities. Chief Bynum also asked Detective Smith to document his conversations with Mr. Hogan in writing. The next day, Chief Bynum contacted Sheriff Daniels and confirmed that Mr. Hogan had approached him and sought his advice regarding the legality of Chief Bynum's actions during the telephone incident.
On November 13, 2000, Chief Bynum returned to the Police Department from his scheduled vacation. He called Detective Smith and Lieutenant Derek Bryant into his office to serve as witnesses and then confronted Mr. Hogan about his conversations with Mr. Cowan. In Mr. Hogan's words, Chief Bynum stated: "Tell me about this god damn investigation you're doing on me." Mr. Hogan contends that Chief Bynum accused him of being "out to get his job" and of "trying to set him up." Mr. Hogan admitted that he had "looked into" Chief Bynum's role in the alleged eavesdropping but denied that his actions were improper. Mr. Hogan tried to explain what he had done and the reasons for his actions. Nonetheless, Chief Bynum placed Mr. Hogan on paid suspension, then asked Detective Smith and Lieutenant Bryant to contact the Police Department's discipline review committee to call a meeting.
The same day, the review committee was convened. It consisted of five members of the Police Department. Chief Bynum presented the matter to the committee, including his written report and the reports of Mr. Cowan, Detective Smith, and Pat Riddle. Chief Bynum, Detective Smith, and Lieutenant Bryant left the room, and the committee discussed the matter and ultimately concluded that it would recommend Mr. Hogan's demotion from the position of Assistant Chief of Police. The committee's report explains that the reason for recommending the demotion was that "the relationship between Chief Bynum and Mr. Hogan had been deteriorating and was now at a point that it could not be repaired." Chief Bynum followed the committee's recommendation and demoted Mr. Hogan to Patrolman II. Mr. Sasse approved Chief Bynum's proposed demotion of Mr. Hogan. Mr. Hogan points out that other than the meeting on November 13, 2000, Chief Bynum made no attempt to get his "side of the story," and that he did not testify at the discipline committee's meeting. Chief Bynum told Mr. Hogan that he was demoting him because "he no longer felt he could trust [him]."
The parties dispute whether Chief Bynum informed the committee of a particular policy of the Police Department that he believed Mr. Hogan had violated.
Pursuant to the City of Independence personnel manual, Mr. Hogan was given notice of his demotion from the grade of Assistant Chief of Police to Patrol Officer II (which became effective November 17, 2000) and of his right to grieve the decision under the personnel manual. The "Personnel Action and Payroll Change" form provides the following explanation for the demotion:
(A.) You failed to notify the City Manager of your concerns about possible misconduct by the Chief of Police. (B.) That your actions prior to and during this investigation into misconduct show that you attempted to undermine the authority and position of the Chief of Police by making comments to persons inside and outside of the police department. These comments were beyond the bounds of the investigation, had no basis in fact and were derogatory. (C.) That these actions have impaired the working relationship between you and the Chief of Police to a degree that does not permit you to remain in the administrative level of the police department. Therefore, you are being demoted to the position of Patrolman II. You have the right to file a grievance in this action using the city grievance procedures of which a copy is attached.
The Police Department Rules and Regulations subsection (F)(2) states: "Complaints by department personnel against the chief of police must be presented in writing to the city manager. The complainant must simultaneously deliver a copy of the complaint to the chief of police."
The City of Independence Personnel Rules and Regulations subsection (H)(5)(d) states that violation of departmental rules and regulations is misconduct subject to disciplinary action. Subsection (H)(3)(d) adds that demotion is available as a discipline option for violation of the rules.
Mr. Hogan filed a grievance relating to his demotion, and a hearing panel was convened. However, Mr. Hogan did not attend the scheduled hearing on advice of counsel, and he abandoned his grievance. Mr. Hogan remained in the position of Patrolman II until he resigned in June of 2002 and later filed this § 1983 action.
II. Summary Judgment and Qualified Immunity Standards
A. Traditional Summary Judgment Standard
The claim against the City of Independence is reviewed under the traditional summary judgment standard: Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir. 2002). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Wright ex rel. Trust Co. of Kansas v. Abbott Laboratories, Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Adams v. American Guarantee Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at 671).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)); Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324. The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis Co., 256 F.3d 1013, 1017 (10th Cir. 2001). Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Mitchell v. City of Moore, Oklahoma, 218 F.3d 1190, 1197-98 (10th Cir. 2000) (quoting Adler, 144 F.3d at 671). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibits incorporated therein." Adams, 233 F.3d at 1246.
B. Qualified Immunity Standard
Because the two defendants sued in their individual capacities, Mr. Sasse and Chief Bynum, have raised the qualified immunity defense, the court must assess the claims against them under a different standard. Overdorff v. Harrington, 268 F.3d 1179, 1185 (10th Cir. 2001) (quoting Medina v. Cram, 252 F.3d 1124, 1128 (10th Cir. 2001)). Once a defendant asserts a qualified immunity defense, the burden of proof shifts to the plaintiff, who must satisfy a two-part test before the defendant bears the traditional burden of movant for summary judgment under Federal Rule of Civil Procedure 56(c). Harrington, 268 F.3d at 1185 (quoting Medina, 252 F.3d at 1128); see also Nelson v. McMullen, 207 F.3d 1202, 1206 (10th Cir. 2000).
Under the first of the two-part qualified immunity test, the court must determine whether the facts alleged by the plaintiff, taken in the light most favorable to him, show the conduct of the individual defendants (Chief Bynum and Mr. Sasse) violated a constitutional right. Hope v. Pelzer, 536 U.S. 730 (2002) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If the plaintiff fails to meet the threshold burden of demonstrating a constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. If, on the other hand, the plaintiff's factual allegations amount to a violation of a constitutional right, "the next, sequential step is to ask whether the right was clearly established at the time of the [defendants'] unlawful conduct such that a reasonable person in the [defendants'] position would have known that the alleged conduct violated the federal right." Id.
III. First Amendment Retaliation
Mr. Hogan asserts that defendants violated his First Amendment right to free speech by demoting him for voicing his concern to Mr. Cowan, Detective Smith, and Sheriff Daniels that Chief Bynum may have engaged in illegal activity. He thus brings a First Amendment retaliation claim against the City and against Chief Bynum and Mr. Sasse in their individual capacities. Defendants contend that summary judgment is appropriate because Mr. Hogan has failed to establish a constitutional violation. Specifically, they argue that Mr. Hogan's speech was not constitutionally protected and, even if it was protected, the Police Department's interest in maintaining an efficient and effective workplace outweighed Mr. Hogan's right to voice his concerns regarding Chief Bynum's actions. Also, they contend that Mr. Hogan's investigation was not a substantial factor in his demotion and that even absent his speech, he would have been demoted for failing to follow police procedures. Defendants Bynum and Sasse contend that they are entitled to qualified immunity on the additional ground that Mr. Hogan has failed to establish that their actions violated a law that was clearly established.
The City argues that it cannot be held liable unless Mr. Hogan can establish the City had an unconstitutional custom, policy, or practice which caused his injury. In response, Mr. Hogan contends that the City can be held liable for the results of decisions made by a final policymaker, as defined by state law, Ware v. Unified Sch. Dist. No. 492, 902 F.2d 815, 817 (10th Cir. 1990); Flanagan v. Munger, 890 F.2d 1557, 1568-69 (10th Cir. 1990), and they point out thin that Chief Bynum and/or Mr. Sasse are the final decision makers for purposes of the City's liability under 42 U.S.C. § 1983. Defendants do not dispute this in their reply brief.
Although it is settled that an employer may not discharge a public employee in retaliation for the employee's exercise of his or her First Amendment right to freedom of speech, that right is not absolute. Rankin v. McPherson, 483 U.S. 378 (1987). The Supreme Court has explained that "[t]he problem in any case is to arrive at a balance between 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 services it performs through its employees." Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
In order to accommodate these conflicting interests, when a government employer has allegedly taken adverse action because of an employee's exercise of his or her First Amendment right of free speech, the court applies the Pickering/Connick balancing test. Kent v. Martin, 252 F.3d 1141, 1143 (10th Cir. 2001) (citing Pickering, 391 U.S. at 563 and Connick v. Myers, 461 U.S. 138 (1983)). The Tenth Circuit has explained that the court must ask the following four questions:
1. Whether the speech in question involves a matter of public concern.
2. If so, [the court] must weigh the employee's interest in the expression against the government employee's interest in regulating the speech of its employees so that it can carry on an efficient and effective workplace.
3. Employee must show the speech was a substantial factor driving the challenged government action.
4. If so, can the employer show that it would have taken the same employment action against the employee even in the absence of the protected speech.Id. (quoting Barker v. City of Del City, 215 F.3d 1134, 1137 (10th Cir. 2000) (quoting Jantzen v. Hawkins, 188 F.3d 1247, 1257 (10th Cir. 1999)). The first two questions present legal issues to be resolved by the court, while the final two present questions of fact to be resolved by the jury. Id.; see also Prager v. LaFaver, 180 F.3d 1185, 1190 (10th Cir. 1999).
A. Matter of Public Concern
If an employee speaks on a matter of public concern, the speech is protected by the First Amendment. Connick, 461 U.S. at 146. If, on the other hand, an employee speaks "as an employee upon matters only of personal interest," the speech is not protected. Id. A statement "is characterized as a matter of public concern and not merely a personal employment grievance if it can be `fairly considered as relating to any matter of political, social, or other concern to the community.'" Moore v. City of Wynnewood, 57 F.3d 924, 932 (10th Cir. 1995) (quoting Connick, 461 U.S. at 146). To determine whether "particular speech relates merely to internal workplace issues, courts must conduct a case by case inquiry, looking to the `content, form, and context' of the speech," id. (quoting Connick, 461 U.S. at 147-48), "which includes scrutinizing whether the speaker's purpose was to bring an issue to the public's attention or to air a personal grievance." Id. (citing McEvoy v. Shoemaker, 882 F.2d 463, 466 (10th Cir. 1989)). An employee's speech must not merely relate generally to a subject matter that is of public interest, but must `sufficiently inform the issue as to be helpful to the public in evaluating the conduct of government.'" Id. (quoting Wilson v. City of Littleton, Colo., 732 F.2d 765, 768 (10th Cir. 1984)); see also Koch v. City of Hutchinson, 847 F.2d 1436, 1445-47 (10th Cir.) (en banc) (reaffirming Wilson), cert. denied, 488 U.S. 909 (1988). In other words, the court "should look beyond the general topic of the speech to evaluate more specifically what was said on the topic." Id.
In this action, the relevant speech consists of Mr. Hogan's statements to Mr. Cowan, Detective Smith, and Sheriff Daniels to the effect that Chief Bynum had "engaged in illegal activity." Defendants concede that "speech which discloses any evidence of corruption, impropriety, or other malfeasance on the part of city officials . . . clearly concerns matters of public import." Dill v. City of Edmond, Okla., 155 F.3d 1193, 1202 (10th Cir. 1998) (quoting Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988)). Nonetheless, they contend that Mr. Hogan's speech was not on a matter of public concern for two reasons: first, Mr. Hogan knew or should have know that the statements he was making were false; and second, Mr. Hogan's statements were solely motivated by a desire to displace Chief Bynum.
1. False Statements
In a First Amendment retaliation case, "the truth or falsity of the statements at issue is relevant to both the threshold public concern analysis and the balancing required under Pickering." Wulf v. City of Wichita, 883 F.2d 842, 858 n. 24 (10th Cir. 1989). Indeed, the Tenth Circuit has noted that "[i]t is difficult to see how a maliciously or recklessly false statement could be viewed as addressing a matter of public concern." Id.; see also Moore, 57 F.3d at 933 (noting that deliberately or recklessly false statements do not garner First Amendment protection). Defendants point out that some courts have added that even if the speech is not a blatant lie, if it is based on rumor or conjecture, it is much less likely to be considered a matter of public concern. Defendants cite to one court that noted that at best such speech is "just one step removed from speech made with knowledge of its falsity or reckless disregard for the truth of a statement — a type of speech with little, if any, constitutional protection." Loos v. City of Concord, 1993 WL 549812, at *4 (M.D.N.C. Oct. 22, 1993).
Loos, however, is clearly distinguishable from the facts here. In Loos, the court granted the City of Concord's motion for summary judgment on plaintiff's First Amendment retaliation claim. The plaintiff was a police officer who was demoted and terminated for making comments to a reporter for a local newspaper regarding allegations of misconduct against the Assistant Chief of Police. The officer conceded that his statements to the press were based on rumor and that he did not investigate the matter or make inquires at the police department. In concluding that the speech was not protected under the First Amendment, the court explained that "the public concern value of the speech is reduced by the fact that Loos did not investigate the matter and by his own admission based his speech on rumor." Id. at 4.
By contrast, in this action Mr. Hogan did not disclose to the media or others outside the law enforcement community the information he received regarding Chief Bynum's alleged wrongdoing. Instead, after learning the details of the incident from Mr. Cowan and allegedly concluding that a potential crime may have occurred, Mr. Hogan consulted the Kansas statutes. After reading the statutes and continuing to believe that a crime may have been committed by Chief Bynum, Mr. Hogan approached Sheriff Daniels and asked him his opinion on the matter. In the interim, Detective Smith also initiated a conversation with Mr. Hogan regarding the matter. Finally, after conferring with these other law enforcement officials and concluding that it was unlikely that a crime was committed, Mr. Hogan returned to Mr. Cowan and relayed this information to him In other words, Mr. Hogan's course of action here is in stark contrast to the officer's actions in Loos. Unlike the officer in Loos who based his comments to the press on bare rumor, here Mr. Hogan attempted to take the information he was given and determine whether Chief Bynum's actions amounted to a crime.
Defendants argue that even a layperson with no legal or law enforcement background would immediately recognize that Chief Bynum's actions did not fit the statutory definition of eavesdropping or breach of privacy and that Mr. Hogan, as an experienced police officer responsible for training other officers on the content and application of Kansas law, would therefore certainly know after reading the statutes that no crime had been committed. Despite this knowledge, though, defendants contend that Mr. Hogan "carried the tale of Chief Bynum's `eavesdropping' to Sheriff Daniels knowing full well that no crime had been committed." Thus, his speech is best characterized as an intentional lie or "reckless rumor mongering." The court cannot agree. The statutes are not entirely simple and are not ones under which controversies commonly arise. Even if lawyers and judges, upon considered deliberation, would conclude that the statutes did not apply, that may not be entirely obvious to a person in Mr. Hogan's shoes. Moreover, the steps that Mr. Hogan took were reasonable to try to ascertain whether or not they did apply. All of the evidence indicates that Mr. Hogan, at least on the surface, made his statements in an effort to determine whether a crime had been committed. Thus, the court does not believe that his speech is properly characterized as a matter of law as false or based on rumor.
The concept of "using any device" is not defined, for example. The court is not prepared to say as a matter of law that one such as Mr. Hogan must be expected to rule out without some contemplation the applicability of that phrase to what occurred here or else risk losing his job.
The court notes the few case citations in the annotations to the Kansas Statutes in support of this observation. K.S.A. §§ 21-4001 and 21-4002.
2. Subjective Intent of the Speaker
The Tenth Circuit has explained that "[i]n drawing the thin line between a public employee's speech which touches on matters of public concern, and speech from the same employee which only deals with personal employment matters, we have looked to the subjective intent of the speaker." Schalk v. Gallemore, 906 F.2d 491, 495 (10th Cir. 1990); see also Workman v. Jordan, 32 F.3d 475, 483 (10th Cir. 1994) (citing Schalk, 906 F.2d at 495); McEvoy, 882 F.2d at 466 ("[I]n analyzing whether speech constitutes a matter of public concern, the focus is on the motive of the speaker, i.e., whether the speech was calculated to disclose misconduct or dealt with only personal disputes.").
Defendants argue that Mr. Hogan's concern here was not for the integrity of the City's Police Department but instead for the advancement of his own career. Defendants contend that Mr. Hogan carried the "eavesdropping" story to Sheriff Daniels and Detective Smith in order to further his scheme to displace Chief Bynum and be named Chief of Police. In support of this theory they point out that Mr. Hogan asked Mr. Cowan's opinion as to whether the City Manager would appoint him Chief of Police if Chief Bynum stepped down. They also add that Mr. Hogan urged Mr. Cowan to file a complaint or civil claim against Chief Bynum. Finally, they rely on the Eleventh Circuit's opinion in Brochu v. City of Riviera Beach, 304 F.3d 1144 (11th Cir. 2002) and argue that the facts here should similarly result in summary judgment for them.
In Brochu, the Eleventh Circuit concluded that the district court should have granted the City of Riviera Beach's motion for summary judgment on plaintiff's First Amendment retaliation claim. The Eleventh Circuit concluded that plaintiff's speech did not involve a matter of public concern. In reaching that conclusion the court offered the following reasoning:
We have no problem concluding that, under the case law, "speech activity concerning corruption and mismanagement of [a] Police Department and/or . . . support [of] candidates for the City Council" might be a matter of public concern. In this case, however, [the plaintiff] was not merely "commenting upon matters of public concern," i.e., the alleged ineptitude of his superiors and/or the alleged corruption in the police department, nor was he merely publicly campaigning in favor of candidates he felt would support a reform agenda. Rather, he was a major player in the creation and dissemination of a virtually secret plan to overthrow the existing police administration and put himself and his friends in charge. This was not the sort of public speech activity engaged in by an employee as a citizen which is protected by the First Amendment. This was back-room maneuvering by an employee as an employee which, even if tangentially related to the political process in Riviera Beach and even if motivated by a sincere desire to reform the police department, is not the sort of public discourse which the First Amendment was intended to protect.Id. at 1158-59.
Prior to concluding that the plaintiff's speech did not involve a matter of public concern, the Eleventh Circuit noted that the district court should have decided the public concern issue as a matter of law prior to sending the case to the jury. Id. at 1157-58. Significantly, the Eleventh Circuit acknowledged "that sometimes a situation might present a factual dispute which must be resolved by the jury before the trial judge is able to make the law calls required by the first two stages of the analysis." Id. at 1158. But the court added: "That was not the situation here where there was no serious question about the fact that [the plaintiff] was vocal concerning alleged corruption and mismanagement and did support candidates for City Council or, for that matter, that he was a key participant in the construction of the `plan.'" Id.
It is in this respect that the court believes Brochu differs from the facts in this action. The Eleventh Circuit's conclusion that the plaintiff's speech did not involve a matter of public concern as a matter of law rested on a factual record that was not in dispute: the plaintiff was without question a key participant in the construction of a plan to overthrow the existing police administration and put himself in charge. By contrast, here there are genuine issues of material fact regarding Mr. Hogan's subjective intent. On the one hand, defendants argue that Mr. Hogan spoke to Mr. Cowan, Detective Smith, and Sheriff Daniels regarding Chief Bynum's actions solely in an attempt to take his job. On the other hand, Mr. Hogan has explicitly stated that he investigated Chief Bynum's actions because he believed that a crime had occurred. As the court noted above, the steps that Mr. Hogan took were reasonable, which corroborates his sincerity. Indeed, Mr. Hogan could have taken numerous alternative courses of action that would have been far more effective at exposing Chief Bynum's actions if Mr. Hogan intended to take his job.
Given the factual dispute regarding Mr. Hogan's intent, the court believes the best course of action is to reserve the legal issue of whether Mr. Hogan's speech involved a matter of public concern until after the jury decides the factual question of Mr. Hogan's subjective motives. See Brochu, 304 F.3d at 1158 (noting that a case might present a factual dispute which must be resolved by the jury before the trial judge decides the legal issue); Noyola v. Texas Dep't of Human Resources, 846 F.2d 1021, 1024 (5th Cir. 1988) ("The protected status of speech is an issue of law for the court, but subsidiary fact issues may require resolution by a jury"). Because there are genuine issues of material fact that impact the outcome of the legal issue of whether Mr. Hogan's speech involved a matter of public concern, the court denies defendants' motion for summary judgment on this issue. The parties should craft an appropriate jury instruction regarding the factual issue of Mr. Hogan's subjective intent consistent with this order. After the jury resolves the questions of fact, the court will determine the legal issue of whether Mr. Hogan's speech touches on a matter of public concern.
The court believes this case is distinguishable from Waters v. Churchill, 511 U.S. 661 (1994), where a plurality of the Supreme Court held that courts should apply the Pickering/Connick test to the speech as the government employer found it to be as opposed to having the jury decide the facts for itself. Id. at 668. Here, unlike Waters, there is not a factual dispute over what the speech was, in what tone it was delivered, or what the listener's reactions were; instead, the dispute is over the Mr. Hogan's subjective intent. Thus, this case presents an issue distinct from Waters.
B. Weighing of Interests
Having determined that factual questions must be answered before determining whether Mr. Hogan's speech involved a matter of public concern, the court proceeds to the second step of the inquiry: whether Mr. Hogan's interest, "as a citizen, in commenting upon matters of public concern" outweighs "the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568. Relevant considerations include: "whether the [employee's speech] impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Rankin v. McPherson, 483 U.S. 378, 388 (1987) (citing Pickering, 391 U.S. at 570-73).
Because "[t]he government's interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer," Bd. of County Comm'rs, Wabaunsee County, Ks. v. Umbehr, 518 U.S. 668, 676 (1996) (quoting Waters, 511 U.S. at 675), courts have "consistently given greater deference to government predictions of harm used to justify restriction of employee speech than to predictions of harm used to justify restrictions on the speech of the public at large." Id. (quoting Waters, 511 U.S. at 673). The employer cannot, however, "rely on purely speculative allegations that certain statements caused or will cause disruption. . . ." Gardetto v. Mason, 100 F.3d 803, 815 (10th Cir. 1996). "Instead, the government must articulate specific concerns about the impact of an employee's speech, and those concerns must be reasonable and formed in good faith." Andersen v. McCotter, 205 F.3d 1214, 1218 (10th Cir. 2000) (citations omitted). The government need not "allow events to unfold to the extent that the disruption of the [operation] and the destruction of working relationships is manifest. . . ." Connick, 461 U.S. at 152; accord Moore v. City of Wynnewood, 57 F.3d 924, 934 (10th Cir. 1995) (noting that employer need not "wait for speech actually to disrupt core operations before taking action").
Defendants correctly point out that the Tenth Circuit has acknowledged that police departments have a "heightened interest . . . in maintaining discipline and harmony among employees." Moore, 57 F.3d at 934 (quoting Wulf, 883 F.2d at 861); see also Kelly v. Johnson, 425 U.S. 238, 246-47 (1976) (recognizing the need to accord police departments wide latitude in decisions that impact "discipline, esprit de corps, and uniformity"). In this case, defendants contend that Mr. Hogan's statements threatened both the department's harmony among co-workers and chain of command. They point out that the working relationships are very close in the Independence Police Department and that Mr. Hogan's position as Assistant Chief of Police required him to work very closely with Chief Bynum.
While the court is cognizant of the Police Department's heightened interests and does not dispute defendants' characterization of those interests, the facts of this case, if one assumes that Mr. Hogan's intent was to investigate what he believed was a crime, are unlike most other First Amendment retaliation cases. Here, the Assistant Chief of Police became aware of facts that he says led him to believe that the Chief of Police may have committed a crime. After receiving the facts of the cell phone incident from Mr. Cowan, he stated his initial belief to Mr. Cowan that a crime may have been committed and then began an investigation. His subsequent statements to Sheriff Daniels and Detective Smith were limited to trying to determine whether Chief Bynum's actions constituted a crime. As the court noted above, the steps taken by Mr. Hogan were logical given the circumstances and the fact that he was Assistant Chief of Police. Although defendants point out that Mr. Hogan could have contacted the other participants involved in the incident to get a clearer picture of the events that had transpired, the court believes that given the circumstances Mr. Hogan's actions were reasonable.
Defendants also argue that Mr. Hogan could have pursued a less disruptive path to express his concerns; however, they cite to a Tenth Circuit case holding that the plaintiff's interests were diminished because he did not present his allegations internally before going to an outside lawyer and to the press. Lytle v. City of Haysville, 138 F.3d 857 (10th Cir. 1998). Here, Mr. Hogan did not go outside the law enforcement community and publicly attempt to expose Chief Bynum. See Prager, 180 F.3d at 1191 (noting that plaintiff kept his speech within the Kansas state government in finding that his First Amendment right outweighed claims of disruption).
To hold that Mr. Hogan's speech is not protected could deter law enforcement officers from exposing and investigating potential internal wrongdoing. Thus, under these unique facts, the court concludes that the plaintiff's interest in investigating a potential crime outweighs the Police Department's interest in maintaining harmony within its police force. Although the court agrees with defendants that Mr. Hogan's free speech interest is diminished somewhat by the fact that the potential crimes that he was investigating were misdemeanors and it is relatively clear to the court now that no crime was in fact committed by Chief Bynum, it would send the wrong signal to law enforcement officials if the court concluded that investigating a crime in the manner claimed by Mr. Hogan does not involve protected speech. The court reiterates, however, that its holding that Mr. Hogan's speech, if motivated by a desire to expose illegal activity, is protected is limited to his statements that Chief Bynum had in effect "engaged in illegal activity."
Other statements by Mr. Hogan, such as encouraging Mr. Cowan to file a complaint against Chief Bynum or stating that Chief Bynum's actions were unethical, do not constitute protected speech. While these statements may constitute matters of public concern, the Police Department's heightened interests, particularly when considering that Mr. Hogan was Chief Bynum's immediate second in command, would outweigh the interest Mr. Hogan may have had in merely voicing his opinion on these issues. The Police Department had a grievance procedure regarding complaints against the Chief of Police. Unlike a potential crime that Mr. Hogan may have felt obligated to investigate as the Assistant Chief of Police, under the grievance procedure Mr. Hogan could and should have raised any mere ethical complaints with the City Manager. Although utilization of the procedure might have risked some disharmony in the office, ignoring the established procedure and just opining on ethical concerns and encouraging an ethical or civil complaint against a public employee's boss by a reluctant person who is employed outside the office could not help but have "a detrimental impact on close working relationships for which personal loyalty and confidence are necessary. . . ." Ware, 881 F.2d at 910. While Mr. Hogan indicated that he did not initiate a report to the City Manager because he was demoted before that could happen, the court nonetheless believes that his speech to Mr. Cowan regarding a potential complaint and his opinion on whether Chief Bynum's actions were ethical was unprotected speech as a matter of law.
As noted above, the Police Department Rules and Regulations subsection (F)(2) states: "Complaints by department personnel against the chief of police must be presented in writing to the city manager. The complaint must simultaneously deliver a copy of the complaint to the chief of police."
C. Substantial Factor in Demotion
Because there are fact issues that when taken in the light most favorable to the plaintiff establish that Mr. Hogan's speech, to the effect that Chief Bynum may have engaged in illegal activity, was constitutionally protected, the court turns to whether the speech was a substantial or motivating factor in his termination. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The substantial or motivating factor analysis concerns causation and presents a question of fact. Dill, 155 F.3d at 1202.
In this action, defendants contend that Mr. Hogan cannot show that his potentially protected speech resulted in his termination because the evidence establishes that Mr. Hogan was demoted because he did not follow Police Department procedure by notifying the City Manager, Mr. Sasse, of his concerns regarding Chief Bynum's actions. The court cannot agree. Although Mr. Sasse testified in his deposition that he took action because he felt that Mr. Hogan had encouraged Mr. Cowan to file a complaint or civil complaint against Chief Bynum and also because Mr. Hogan did not speak to the City Manager about his concerns, there is additional evidence from which a jury could conclude that Mr. Hogan was demoted for telling Mr. Cowan, Detective Smith, and Sheriff Daniels that Chief Bynum may have engaged in illegal activity. The form documenting Mr. Hogan's demotion states that he was demoted, in part, for taking actions "prior to and during this investigation into misconduct [that] show that you attempted to undermine the authority and position of the Chief of Police by making comments to persons inside and outside of the police department[;] [t]hese comments were beyond the bounds of the investigation, had no basis in fact and were derogatory." In addition, Mr. Hogan testified that when Chief Bynum returned from vacation and confronted Mr. Hogan, Chief Bynum said to him: "Tell me about this god damn investigation you're doing on me." A reasonable jury could infer from these statements, coupled with the timing between Mr. Hogan's investigation and the convening of the discipline committee, that Mr. Hogan's investigation of whether Chief Bynum's actions amounted to illegal activity was a substantial motivation for Mr. Hogan's demotion. As such, Mr. Hogan has presented a genuine issue of material fact as to defendants' motivations in demoting him. Accordingly, defendants are not entitled to summary judgment on this issue.
In Mr. Sasse's words, Mr. Hogan "encourag[ed] one department head to file a complaint or civil complaint against another one."
D. Same Action in the Absence of the Protected Speech
Under the fourth and final step of the analysis, even if the plaintiff shows that his speech was a substantial or motivating factor in the actions taken against him, the defendants may avoid liability by demonstrating that they would have taken the same actions regardless of plaintiff's protected speech. Mt. Healthy, 429 U.S. at 287. The "same action defense" concerns causation and presents a question of fact. Dill, 155 F.3d at 1202 (citations omitted).
In this action, defendants contend that even absent Mr. Hogan's potentially protected speech, his demotion would have occurred anyway because of his violation of department policy. But as the court noted above, the form documenting Mr. Hogan's demotion states as one of the reasons for his demotion: taking actions "prior to and during this investigation into misconduct [that] show that you attempted to undermine the authority and position of the Chief of Police by making comments to persons inside and outside of the police department." Thus, Mr. Hogan has raised a genuine issue of material fact as to whether he was demoted solely for failing to follow the Police Department's policy. As such, the defendants are not entitled to summary judgment on this issue.
IV. Qualified Immunity
Qualified Immunity protects a government official from personal liability and the burden of having to go to trial unless he violated "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Moore, 57 F.3d at 931. Defendants Bynum and Sasse argue that even if Mr. Hogan's termination violated his First Amendment rights, they are entitled to qualified immunity because the law was not clearly established. They note that courts have recognized that in cases involving First Amendment rights of public employees and the Pickering balancing test, "only infrequently will it be clearly established that a public employee's speech on a matter of public concern is constitutionally protected, because the relevant inquiry requires a particularized balancing that is subtle, yet difficult to apply, and not yet well defined." Pike v. Osborne, 301 F.3d 182, 185 (4th Cir. 2002) (internal quotations and citations omitted); see also Dill, 155 F.3d at 1204 (noting that under the Pickering test, the law is less likely to be clearly established than in other cases); Moore, 57 F.3d at 935 n. 6 (stating that plaintiff "hard pressed" to show clearly established rights under Pickering balancing).
However, despite these statements the Tenth Circuit has found that the law is clearly established and denied qualified immunity in several First Amendment retaliation cases. See, e.g., Finn v. New Mexico, 249 F.3d 1241, 1250 (10th Cir. 2001); Prager, 180 F.3d at 1192; Anderson v. McCotter, 100 F.3d 723 (10th Cir. 1996). In Anderson, the Tenth Circuit noted that "[t]he law has been clearly established since 1968 that public employees may not be discharged in retaliation for speaking on matters of public concern, absent a showing that the government employer's interest in the efficiency of its operations outweighs the employee's interest in the speech." 100 F.3d at 723. The Tenth Circuit reached a similar conclusion in Finn, 249 F.3d at 1250. In Prager, the Tenth Circuit found that an employee's right to disclose governmental corruption was clearly established. 180 F.3d at 1192. Because the law in this area was clearly established in November of 2000 (the date Mr. Sasse issued Mr. Hogan's demotion notice), the court concludes that defendants Bynum and Sasse are not entitled to qualified immunity. As such, the defendants' motion for summary judgment is denied.
IT IS THEREFORE ORDERED BY THE COURT THAT defendants' motion for summary judgment (Doc. 20) is denied.