Benjamin v. Washington State Bar Ass'n

138 Wash. 2d 506

• Court: Washington Supreme Court
• Decided: July 22, 1999
• Docket: No. 66352-1
• Status: Published

Opinions

Smith, J.

— Appellant G. Andrew H. Benjamin seeks direct review of a King County Superior Court partial summary judgment which dismissed his claims that termination of his employment by the Washington State Bar Association violated his free speech rights under both the federal and state constitutions and of a summary judgment granting qualified immunity to Respondent Dennis E Harwick, Executive Director of the Association. We granted review. We affirm.

QUESTIONS PRESENTED

The questions presented in this case are whether the trial court was correct in dismissing Appellant G. Andrew H. Benjamin’s free speech claims and in granting Respondent Dennis E Harwick qualified immunity on Appellant’s free speech claims.

STATEMENT OF FACTS

On January 16, 1995, Appellant G. Andrew H. Benjamin filed in the King County Superior Court a complaint against Respondents Dennis E Harwick, in his individual capacity, and Rebecca Harwick, his wife.¹ On August 1, 1995, Appellant filed in the King County Superior Court a complaint against the Washington State Bar Association.² Upon Appellant’s motion, the cases were consolidated October 18, 1995.³

In his complaint against Respondents Harwick, Appellant claimed his termination as director of the Lawyer Assistance Frogram (LAP)⁴ of the Washington State Bar Association (WSBA) by Respondent Dennis E Harwick, at that time executive director of the WSBA, violated Appellant’s free speech rights under the First Amendment of the United States Constitution, article I, section 5 of the Washington State Constitution,⁵ and 42 U.S.C. § 1983.⁶ The First Amendment reads, “Congress shall make no law . . . abridging the freedom of speech . . . .” Article I, section 5 of the Washington Constitution provides “[e]very person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” 42 U.S.C. § 1983 reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

In his complaint against the WSBA, Appellant contended that the WSBA violated article I, section 5 of the Washington Constitution in not supporting a grant proposal he had submitted and in threatening not to accredit a Continuing Legal Education seminar if he participated in it after his termination.⁷ Based on these actions, Appellant also asserted defamation and false light claims.⁸

Appellant was hired by the WSBA and on November 10, 1986 was assigned as director of the WSBA’s Lawyer Assistance Program.⁹ Dennis P Harwick became executive director of the WSBA on December 1, 1990.¹⁰ The LAP was created under Washington Court General Rule (GR) 12 which includes in its authorization to the WSBA maintaining, in its discretion, “a program for the aid and rehabilitation of impaired members[.]”¹¹ Through the LAR counseling for attorneys is provided by WSBA-employed therapists, which included Appellant, who was also director of the LAE¹²

Appellant Benjamin in his complaint asserted the LAP achieved “national prominence”¹³ and that he had received positive performance appraisals.¹⁴ He also claimed that, in September 1993, Respondent Harwick informed him he wanted the LAP to be “self-funding” in order not to “drain” the resources of the WSBA.¹⁵ Appellant claimed Mr. Harwick wanted the LAP to increase its revenue fivefold from $10,000 to $50,000.¹⁶ Appellant voiced his objection to Mr. Harwick concerning increasing LAP client fees to enhance revenues of the WSBA.¹⁷ That objection is a central. focus of this case. At a staff retreat in October 1993,¹⁸ Appellant expressed his opposition to a fee increase to the LAP staff and later to the LAP Steering Committee.¹⁹ The Steering Committee on November 4, 1993 unanimously voted against the fee increase.²⁰

Appellant claimed that on November 5, 1993, the day following the meeting of the Steering Committee, he received from Mr. Harwick an unsatisfactory performance appraisal dated November 4, 1993 and was told he was being terminated and required to leave the office by April 30, 1994.²¹ In the performance appraisal, Respondent Harwick wrote that Dr. Benjamin’s termination would be immediate if he made an “end- run.”²²

Appellant filed two grievances with the WSBA Grievance Committee which unanimously rejected both.²³ Appellant claimed that after he filed his first grievance Mr. Harwick informed him his termination date would be accelerated from April 30, 1994 to December 31, 1993.²⁴

Appellant claimed in addition that, after his termination, the WSBA took retaliatory action against him by refusing to support a grant proposal he had submitted which Mr. Harwick previously had supported before the adverse employment decision.²⁵ Appellant also asserted that the employees of the WSBA told the chairperson of a CLE seminar Appellant could not participate, and, if he did participate, the WSBA would not give CLE credit for the seminar.²⁶ Appellant further claimed these comments by WSBA employees to the CLE seminar chairperson were further publicized, thus supporting his defamation and false light claims.²⁷

Appellant Benjamin on January 16, 1995 filed claims in the King County Superior Court against Respondents Harwick and on August 1, 1995 against Respondent WSBA for violation of his free speech rights under 42 U.S.C. § 1983, the First Amendment of the United States Constitution, and article I, section 5 of the Washington Constitution; and for defamation and false light under article I, section 5 of the Washington Constitution. Among other things, he asked for compensatory and punitive damages and injunctive relief against all Respondents.²⁸

On September 6, 1996, Respondents Harwick and the WSBA moved for partial summary judgment to dismiss Appellant’s free speech claims under the federal and state constitutions and 42 U.S.C. § 1983.²⁹ Respondents contended there was no violation of the federal constitution and 42 U.S.C. § 1983 because there was no “action under the color of state law”³⁰ when Respondent Harwick terminated Appellant.³¹ Respondents asserted that Mr. Harwick was acting as “the executive director of a privately funded organization, engaged in the internal business of managing its staff, as was his charge under the WSBA Bylaws.”³² Respondents further contended the issue was not a matter of public concern, a necessary requirement for determining constitutionally protected speech, even if the termination did constitute state action.³³ In addition, Respondents asserted Appellant was a “policymaker” and thus had more limits on his free speech as a public employee than he otherwise would have.³⁴

Respondents also contended there was no violation of article I, section 5 of the Washington Constitution because there was no state action either when Mr. Harwick terminated Dr. Benjamin or in the post-termination actions Appellant claims the WSBA took against him as retaliation.³⁵

In addition to the motion for partial summary judgment on the free speech claims, Respondents Harwick, on September 6, 1996, moved for dismissal of the complaint by a supplemental motion for summary judgment claiming qualified immunity.³⁶ They contended that at the time of Dr. Benjamin’s termination the law was not clearly established that the termination constituted state action, nor was the law clearly established that Dr. Benjamin’s speech was constitutionally protected.³⁷

On November 8, 1996, the King County Superior Court, the Honorable Michael J. Trickey, granted both the motion for partial summary judgment on Appellant’s free speech claims and Respondents Harwick’s supplemental motion for summary judgment under the doctrine of qualified immunity.³⁸ The court found as a matter of law that Dr. Benjamin’s termination by Mr. Harwick did constitute state action³⁹ and that the matter of increasing fees for clients in the LAP program was one of public concern.⁴⁰ The court found, however, that “the WSBA’s interest in managing its responsibilities outweighs the value of plaintiff’s free speech interest.”⁴¹ In addition, the court determined that Dr. Benjamin was a “policymaker,” and for that reason “his freedom of speech interests were overridden by the WSBA’s interest in functioning effectively.”⁴²

In granting Mr. Harwick qualified immunity, the court found that, at the time of Dr. Benjamin’s termination, the law was not “clearly established” that the WSBA was a “public entity for purposes of Benjamin’s termination,” nor was it clearly established that “Dr. Benjamin’s speech was an issue of public concern protected by the state and federal constitutions.”⁴³

Appellant sought direct review by this court which was initially denied on February 27, 1997 because the trial court’s orders did not dispose of the entire lawsuit.⁴⁴ The defamation and false light claims were later settled and an order was entered dismissing those claims.⁴⁵ Appellant again sought direct review by this court, which we granted on May 5,1998. For purposes of this review, all Respondents agreed with Appellant’s factual claim that he was terminated because he disagreed with the executive director of the WSBA about increasing fees for LAP clients and voiced his objections to other persons.⁴⁶

DISCUSSION

Standard of Review

Under Civil Rule (CR) 56(c), a complaint may be dismissed on a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A dismissal under this rule involves a question of law which is reviewed de novo by an appellate court.⁴⁷ “This standard of review is consistent with the requirement that evidence and inferences are viewed in favor of the nonmoving party . . . .”⁴⁸

Free Speech

The free speech rights of public employees under the First Amendment have been the subject of considerable attention by the courts.⁴⁹ It is “well-settled that the government may not compel persons to relinquish their First Amendment right to comment on matters of public interest as a condition of public employment.”⁵⁰ However, the United States Supreme Court since 1968 has recognized that the government has a legitimate interest “in promoting the efficiency of the public services it performs through its employees.”⁵¹ That the free speech rights of public employees must be weighed in the balance against the government’s interest in efficient management of its tasks is a result of “the dual capacities created when the government and an individual assume an employment relationship. The government is concurrently a sovereign and an employer, while the individual is simultaneously a citizen and an employee.”⁵²

The public employee who claims a constitutional violation of the employee’s free speech rights must demonstrate that the speech in question is entitled to constitutional protection.⁵³ Whether the speech is constitutionally protected is a question of law.⁵⁴ The United States Supreme Court “has been careful to avoid fashioning a bright-line rule establishing what constitutes protected speech in public employee First Amendment cases.”⁵⁵

Courts employ a four-part inquiry to establish whether there has been a free speech violation:

(1) The court “decides the threshold issue whether the speech involved . . . [is] on a matter of public concern”;⁵⁶

(2) If the speech is on a matter of public concern, “the court decides whether the employee’s interest in exercising [the employee’s] right to freedom of speech is greater than the interest of the government in promoting efficiency in the public service it performs.”⁵⁷ “Although the employee has the burden of showing that the speech is on a matter of public concern, courts generally . . . require the employer to demonstrate that the discharge . . . was justified because of the employer’s need to promote efficiency in the workplace”;⁵⁸

(3) If the free speech interests of the public employee outweigh the government’s interest in efficient management, the public employee must show the speech was a substantial motivating factor in the adverse employment of which the employee complains;⁵⁹ and

(4) If the public employee is able to meet the burden under part (3), then the public employer must demonstrate that the same decision would have been made even without the protected speech.⁶⁰

While parts (1) and (2) of the inquiry are questions of law, parts (3) and (4) are questions of fact usually left to the finder of fact.⁶¹

Although there is no bright-line rule for determining what constitutes constitutionally protected speech, courts have nevertheless been given some guidance for balancing employees’ free speech interests against the government’s interests in having an efficient workplace. Factors which may be considered by courts include “whether the statement impairs discipline by superiors or harmony among co-workers, has 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.”⁶²

In addition, in Binkley v. City of Tacoma this court observed that the employee’s speech is not to be considered “in a vacuum,” but the court must consider whether “ ‘the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.’ ”⁶³ In that case the Court concluded “[t]he employer’s interests are defined, therefore, by determining whether and to what extent the ‘manner, time and place’ of the speech in question threatened to disrupt the regular operation of the workplace by either impairing discipline by supervisors, impairing harmony among co-workers, or interfering with the speaker’s duties.”⁶⁴

Appellant’s argument focuses on the trial court’s determination that, even though Appellant’s speech did involve a matter of public concern, the employer’s interests in an efficient workplace outweighed Appellant’s free speech interests. Appellant contends that Respondents “failed to offer a whit of evidence” on any of the factors courts must consider in balancing the public employee’s interests against the interests of the government.⁶⁵ Appellant argues that Respondents must produce evidence that demonstrates “actual or potential” disruption of the workplace.⁶⁶ This court stated in White v. State, however, “[ajctual disruption need not be shown and deference is given to government predictions of harm”

67

Because the United States Supreme Court has not drawn a bright-line rule in public employee free speech cases, but instead has developed a balancing test, analysis in public employee free speech cases is fact-sensitive as stated in Pickering,⁶⁸ What is clear is that the facts must be analyzed against a backdrop of deference to legitimate governmental interests.

Appellant cites Waters v. Churchill in support of the proposition thát predictions of harm through disruption “must” be based upon a “substantial showing that the speech is, in fact, likely to be disruptive.”⁶⁹ The Supreme Court in Waters, however, observed that “[i]n many such situations the government may have to make a substantial showing that the speech is, in fact, likely to be disruptive before it may be punished.”⁷⁰ In Waters, a discharged nurse brought action claiming her discharge violated the First Amendment. The Court, in finding her speech was not protected, stated:

[W]e 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. . . . [W]e have given substantial weight to government employers’ reasonable prediction of disruption, even when the speech involved is on a matter of public concern . . . ,[71]

Appellant contends that “the manner, time and place of Benjamin’s speech suggest no potential for disruption.”⁷² In several places in the record, however, reference is made to a fiscal crisis the WSBA had experienced and was still experiencing. A former member of the WSBA Board of Governors and a member of the LAP Steering Committee at the time of the dispute referred to “budget problems.”⁷³ For more than a year, the former member knew about “overall budget problems that were affecting the bar, in say, 1992 and 1993.”⁷⁴ In the 1992 Employee Performance Appraisal for Dr. Benjamin, Mr. Harwick referred to the “significant budget deficit” and noted that “some triage would be necessary in light of our financial situation.”⁷⁵ He added “If the dues rollback referendum passes, there will be considerable pressure on all programs to cut expenses.”⁷⁶ Appellant himself mentioned the fiscal crisis three times in his own review comments in his 1993 Employee Performance Appraisal.⁷⁷ At the hearing on the motion before Judge Trickey, the judge asked “Is it reasonable management response, when you have your boss come to you and say, ‘We’re in a financial crisis, okay? We’ve got this dues rollback; we’ve got to do this fivefold, [sic]’ ”⁷⁸ Counsel offered no objection before the trial court to these references to the “financial crisis” of the WSBA.⁷⁹

In such a context, it is reasonable for the government employee to expect that certain disagreements, particularly disagreements over revenue-enhancing strategies, might likely have a detrimental effect on close working relationships for which personal loyalty and confidence are necessary. Appellant argues that a showing of actual and significant harm is necessary,⁸⁰ but the United States Supreme Court has articulated this standard to the contrary:

When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate. Furthermore, we do not see the necessity for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.[81]

Under this standard, it is not unreasonable for a government employer (in this case Mr. Harwick and the WSBA) to believe that opposition by an employee (in this case Dr. Benjamin) to policies to enhance revenues during a time of a financial crisis would interfere with the regular operation of the Association.

Appellant contends that because he reported to the WSBA executive director for administrative matters and to the LAP Steering Committee for programmatic issues, his “duty of confidence or loyalty on programmatic issues ran to the LAP Steering Committee, not to the executive director.”⁸² The record indicates that under the WSBA Employee Handbook, Mr. Harwick as executive director had ultimate authority over hiring and termination, and could terminate an employee at will.⁸³ The executive director also had primary responsibility for administering the WSBA budget.⁸⁴ Although Dr. Benjamin had primary reporting responsibility to an advisory committee, it nevertheless stands to reason that the executive director was entitled to expect ultimate loyalty from Dr. Benjamin to the WSBA and its interests. The trial court addressed this when it stated: “[E]ven if Benjamin had two masters, there was one master that was greater and more significant, and that’s Harwick ”⁸⁵

In determining whether the government employer has demonstrated the need for loyalty and confidentiality from an employee, courts have examined whether the employee is a policy maker. In Dicomes v. State,86 the executive secretary of the Washington Medical Disciplinary Board and Board of Medical Examiners claimed she was discharged for unauthorized release of certain information. Serving at the pleasure of the director of the Department of Licensing (DOL), she discovered information indicating that the DOL budget did not exclude expenditure of surplus funds accumulated in the DOL’s medical disciplinary account. Her superiors disagreed when she proposed that the boards should be informed on the matter. She nevertheless revealed the information and was terminated.⁸⁷

This court stated in Dicomes: “[A] public employee’s interest in freedom of speech may be overridden where the State shows a need for political loyalty and confidentiality of its employees who are vested with discretionary authority and policy-making responsibilities.”⁸⁸ Among the factors to be considered in determining whether an employee is a policy maker, the court listed “whether the speaker establishes priorities, develops programs, procures funding, conducts studies, controls a budget or prepares budget requests, and whether the speaker is given broad discretion and is relatively unsupervised in carrying out these responsibilities.”⁸⁹ Examining the duties of the executive secretary, the court determined she was a policy maker and that her free speech interests were outweighed by the DOL director’s interest “in providing an effective and efficient public service, and in maintaining a close working relationship with his appointed executive secretary . . . ,”⁹⁰

Appellant Benjamin’s own declaration that the director of the LAP does not make policy is the only support he provides for his contention that he was not a policy maker.⁹¹ In the record, Appellant points out that he brought “national prominence” to the LAP⁹² A member of the LAP Steering Committee asserted that by November 1993 the LAP had achieved “national recognition” and gave Dr. Benjamin “principal credit,” adding “he [Benjamin] was the program.”⁹³ In describing the dual reporting function Dr. Benjamin had, this same Steering Committee member stated “[T]he program director directed the program and met with us to discuss and review the results of it and what implementations, changes, et cetera, he in those years felt indicated.”⁹⁴

At least two of the factors outlined in Dicomes are implicated in Dr. Benjamin’s seeking funding for a study of job-related stress in women: procuring funding and conducting studies.⁹⁵ In addition, the dual reporting structure for Dr. Benjamin seems to have provided him with discretion. When asked why there was a dual reporting responsibility with the resulting “independence” for the LAP director, a member of the LAP Steering Committee explained this program, in contrast to other bar programs, involved a “health care professional,”⁹⁶ suggesting that the director of the LAI^ as a health care professional, would require more discretion because of his expertise. The record before us supports a conclusion that Dr. Benjamin was a policy maker and owed a duty of loyalty to the WSBA and its executive director.

In addition to examining the time, manner and place of the speech in question and whether the speaker is a policy maker, this court in Binkley observed: “Where the employee’s speech is a matter of public concern in only a limited sense, the employer’s burden of justification is lighter.”⁹⁷ The speech in question in Binkley was a document described as a “Vote of No Confidence” which contained five charges against the employee’s superior. The employee claimed he was reassigned to a less attractive job in retaliation for distributing the document.⁹⁸ The court assumed, but did not decide, that the document constituted speech on a matter of public concern.⁹⁹ However, the court determined that because the document primarily concerned the employee’s personal interests regarding such issues as work assignment, management style, and office locations, it “involved matters of public concern in only a most limited sense.”¹⁰⁰

In Wilson v. State, the director of a state hospital pharmacy department claimed that his free speech rights had been violated when he was demoted after he made certain comments concerning his superiors’ management.¹⁰¹ The employee claimed his comments were a matter of pub-lie concern because they related to “the quality of care that State mental hospital patients receive . . . ,”¹⁰² The court agreed that the quality of patient care was a matter of public concern but determined the employee’s speech was “not clearly connected to the provision of quality patient care.”¹⁰³ The court stated that the employee

was not seeking to inform the public that the administration was derelict in serving Hospital patients. Rather, he was justifying his own actions and philosophy and attempting to protect his own position. Although the general topic of quality patient care is one of public import, the connection between that topic and Wilson’s speech is tenuous.[104]

In White v. State, the court concluded that the speech in question (a nurse’s report of suspected abuse of nursing home patients) clearly was connected to a matter of public concern because to find otherwise would be “contrary to the public policy of the state as reflected in RCW 70.124 (abuse of nursing home patients).”¹⁰⁵

The Wilson and White cases illustrate the difficulties in determining the public significance of an employee’s speech. General Rule (GR) 12(b)(8) gives the WSBA authority to establish a program to help impaired attorneys. That program is not mandated. The administrative detail of determining how much to charge LAP clients is of less public concern than was the speech in White. The evidence in this case supports a conclusion that the speech of the employee, Dr. Benjamin, occurred within the context of a fiscal crisis of the WSBA and that the employee was a policy maker. From this we conclude that the trial court was correct in dismissing the free speech claims of Appellant. There was no constitutional violation when the interests of Appellant, as a public employee, are weighed against the interests of the public employer, WSBA. This overcomes Appellant’s claim that the post-termination actions by the WSBA rose to the level of a constitutional violation even though those actions may seem vindictive to an outside observer. Appellant at any rate does not provide sufficient authority to support his claim of a constitutional violation.¹⁰⁶

Qualified Immunity

The doctrine of qualified immunity limits the exposure of public officials to liability for damages under 42 U.S.C. § 1983.¹⁰⁷ Three policy reasons have been offered by the United States Supreme Court for the doctrine: (1) preventing the unfairness which could result if public officials were subject to lawsuits under constitutional law issues that often are unclear; (2) keeping public officials from being overdeterred in fulfilling their public responsibilities; and (3) preventing the imposition of substantial costs on individuals and government alike for constitutional torts.¹⁰⁸ State officials are protected by qualified immunity for alleged constitutional torts if their conduct does not violate clearly established law effective at the time of the alleged tort.¹⁰⁹

The first step in this analysis is to determine whether a violation of a constitutional right has occurred.¹¹⁰ In this case, the interests of the employer, WSBA, in efficient management outweigh Appellant Benjamin’s free speech interests. Consequently, we need not address the second step in qualified immunity analysis—determining whether the constitutional right allegedly violated was clearly established at the time the dispute arose. Qualified immunity is not invoked because there is no constitutional violation.

SUMMARY AND CONCLUSIONS

The King County Superior Court on summary judgment dismissed Appellant G. Andrew H. Benjamin’s free speech claims, finding that, while there was state action and that the speech involved a matter of public concern, the employer’s interests in efficient management outweighed the employee’s free speech interests. In addition, the trial court found that Appellant was a “policymaker.” The court granted Respondent Dennis E Harwick qualified immunity, finding that, at the time of the termination, the law was not clearly established that the action constituted state action and that the speech involved a matter of public concern.

An analysis of public employee free speech cases includes a balancing test first announced by the United States Supreme Court in 1968 in Pickering v. Board of Education¹¹¹ and elaborated upon in later cases. Courts must weigh the interests of the public employer in efficient management against the public employee’s free speech interests. Several factors are to be considered, among them whether the speech has a detrimental effect on close working relationships where loyalty is necessary. The employer need not show actual effect, but only potential effect. These factors are to be considered within the context in which the dispute arose. Additionally, deference is to be given to governmental interests, particularly where the public employee is found to be a “policy maker.”

Examining the evidence in the light most favorable to the nonmoving party leads us to the determination there is sufficient evidence on the record in this case to conclude that Appellant Benjamin’s exercise of his right to speak would likely disrupt the workplace of the Washington State Bar Association at a time when cohesion was important. The termination of Appellant did not rise to the level of a constitutional violation. Consequently, we have only briefly commented on the issue of qualified immunity in this opinion.

We affirm the judgment of the King County Superior Court which dismissed on summary judgment Appellant G. Andrew H. Benjamin’s complaints against the Washington State Bar Association and Dennis E and Rebecca Harwick.

Guy, C.J., Durham, J., and Dolliver and Brown, JJ. Pro Tern., concur.

1 Clerk’s Papers at 3 and 8.

2 Id. at 620 and 626.

3 Id. at 633-34.

4 The WSBA Employee Handbook refers to the program as the Lawyer Assistance Program. Clerk’s Papers at 43. It is also referred to in the record as the Lawyers’ Assistance Program.

5 Clerk’s Papers at 7.

6 Id. The federal Civil Rights Act of 1871, 42 U.S.C. § 1983, provides a cause of action for damages against any person who, under color of law, subjects another to the deprivation of any right guaranteed under the United States Constitution. Allen K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 10 (1997). In response to southern Black Codes, Congress enacted the Ku Klux Act in which this section originated. The Act was a means to enforce the 14th Amendment. Cristine Kuhn, Note, Between Scylla and Charybdis: Can the Supreme Court Rescue the Inimical Qualified Immunity Doctrine? 43 Drake L. Rev. 681, 683 (1995).

7 Clerk’s Papers at 623-24.

8 Id. at 624-25.

9 Id. at 3. Appellant Benjamin holds a J.D. degree and has been admitted to the Arizona State bar, but not the Washington State bar. Id. at 73. He also holds a Ph.D. degree in clinical psychology. Id. at 340.

10 Id. at 249.

11 GR 12(b)(14).

12 Clerk’s Papers at 341.

13 Id. at 4.

14 Id.

¹⁵

16 Id. at 57, 343.

17 Id. at 58.

18 The record indicates two different dates for the staff retreat, October 17, 1993 and October 19, 1993. Id. at 4 and 58.

19 Id. at 58-59. Appellant described the LAP staff meeting as “very acrimonious” and stated that two of three staff supported increasing fees. Id. at 58. Appellant also stated that indigent lawyers made up “a lot” of his case load. Id. at 59.

20 Id. at 59.

21 Id. at 47-48, 361A. The comments by Dennis E Harwick in Appellant’s employee performance appraisal are dated November 3, 1993, the day before the Steering Committee meeting. The form shows it was given to Appellant on November 4, 1993. Id. at 361-361A.

22 Id. at 361A.

23 Id. at 75-82, 295-300.

24 Id. at 115.

25 Id. at 367, 369.

26 Id. at 185, 193-94.

27 Id. at 24-25.

28 Id. at 625, 8.

29 Id. at 111-32, Defendants’ Mot. for Partial Snmm. J.

30 Id. at 117.

³¹

32 Id. at 119.

33 Id. at 126.

34 Id. at 129-30.

35 Id. at 125.

36 Id. at 83-110.

37 Id. at 85-87.

38 Id. at 585, 590, Order Granting Def.’s Mot. for Partial Summ. J.

39 Id. at 586.

40 Id. at 587.

⁴¹

⁴²

43 Id. at 591, Order Granting Defs.’ Harwicks’ Supplemental Mot. for Summ. J.

44 Ruling Den. Review at 2-3.

45 Clerk’s Papers at 595.

46 Br. of Resp’t Washington State Bar Association at 48.

47 Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979).

48 Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).

49 Appellant claimed protection under the free speech clauses of both the federal and Washington constitutions. The trial court granted defendants’ [Respondents’] motion for partial summary judgment under both the federal and state constitutions. Clerk’s Papers at 587. Appellant stated before this court, however, that he was not asking us to interpret the state constitution “more broadly” than the federal free speech clause. Am. Br. of Appellant at 14 n.6. It is sufficient to confine analysis of the claims against Respondents Harwick to the federal constitution. Appellant Benjamin’s claim against the WSBA rested solely on the free speech clause of the Washington Constitution. Clerk’s Papers at 624. Appellant acknowledged the WSBA could not be sued under 42 U.S.C. § 1983 because it is a state agency, but can he sued under article I, section 5 of the state constitution. Am. Br. of Appellant at 14 n.6. Assertion of more rights under the Washington Constitution than under the federal constitution requires a Gunwall analysis. State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 538, 936 P.2d 1123 cert. denied, 522 U.S. 86 (1997). See also Br. of Amicus Curiae Washington Defense Trial Lawyers at 11. Appellant has not provided that analysis. We therefore do not address whether there is an implied cause of action under the free speech clause of the state constitution.

50 Binkley v. City of Tacoma, 114 Wn.2d 373, 381, 787 P.2d 1366 (1990) (citing Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968)). This has not always been the case. For much of the twentieth century, the common understanding was that public employees could not object to restraints placed on the exercise of constitutional rights. “The classic formulation of this position was Justice Holmes, who, when sitting on the Supreme Judicial Court of Massachusetts, observed: ‘[A policeman] may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.’ ” Connick v. Myers, 461 U.S. 138, 143-44, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983) (quoting McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892). The understanding shifted in the 1950s and 1960s in the United States Supreme Court’s loyalty oath cases. See Connick, 461 U.S. at 144.

51 Pickering, 391 U.S. at 568.

52 James G. Fahey, Notes and Comments, United States v. National Treasury Employees Union; Restrictions on Free Speech of Government Employees and the Re-balancing of Pickering, 15 St. Louis U. Pub. L. Rev. 555, 556 (1996).

53 Wilson v. State, 84 Wn. App. 332, 340, 929 P.2d 448 (1996), review denied, 131 Wn.2d 1022, 937 P.2d 1103, cert. denied, 522 U.S. 949, 118 S. Ct. 368, 139 L. Ed. 2d 286 (1997).

54 Dicomes v. State, 113 Wn.2d 612, 624, 782 P.2d 1002 (1989).

55 White v. State, 131 Wn.2d 1, 13, 929 P.2d 396 (1997).

56 Id. at 11. See also Binkley, 114 Wn.2d at 382; Connick, 461 U.S. at 147-48. Respondents assign error to the trial court’s threshold findings that termination of Appellant constituted state action and that the speech prompting termination was a matter of public concern. Br. of Resp’t WSBA at 1. Under RAP 2.5(a), a party may raise a claim for “manifest error affecting a constitutional right” for the first time in the appellate court. Because of the conclusions we reach in this case we do not address that assignment of error.

57 White, 131 Wn.2d at 11 (citing Waters v. Churchill, 511 U.S. 661, 668, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994); Rankin v. McPherson, 483 U.S. 378, 384-85, 107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987).

58 White, 131 Wn.2d at 14 (emphasis omitted) (citing Binkley, 114 Wn.2d at 383).

59 White, 131 Wn.2d at 16. See also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 50 L. Ed. 2d 471 (1977); Binkley, 114 Wn.2d at 382.

60 Binkley, 114 Wn.2d at 382.

⁶¹

62 Rankin, 483 U.S. at 388.

63 114 Wn.2d at 384 (quoting Rankin, 483 U.S. at 388). See also Givhan v. Western Line Consol. Sch. Dist., 439 U.S. 410, 415 n.4, 99 S. Ct. 693, 58 L. Ed. 2d 619 (1979); Connick, 461 U.S. at 152-53.

64 James G. Fahey, Notes and Comments, United States v. National Treasury Employees Union; Restrictions of Free Speech of Government Employees and the Rebalancing of Pickering, 15 St. Louis U. Pub. L. Rev. 555, 566-67 (1996).

65 Am. Br. of Appellant at 20.

66 Id. at 14.

67 White, 131 Wn.2d at 15. (Emphasis added.)

68 391 U.S. at 569. “Balancing tests, like all legal standards, necessitate individualized, context-specific determinations of constitutional rights because the quantum of interests may vary substantially from case to case, even under the same constitutional provision.” Allen K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 45 (1997).

69 511 U.S: 661, 674, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994). Am. Br. of Appellant at 19.

70 Waters, 511 U.S. at 674. (Emphasis added.)

71Id. at 673.

72 Am. Br. of Appellant at 25.

73 Clerk’s Papers at 216.

74 Id. at 218.

75 Id. at 353.

⁷⁶

77 Id. at 359-60.

78 Tr. of Hr’g at 19.

79 Jd.

80 Am. Br. of Appellant at 22.

81Connick, 461 U.S. at 151-52.

82 Arn. Br. of Appellant at 22. Appellant argues that the dispute over whether to increase client fees was a programmatic issue. When asked if he considered increasing fees a programmatic issue, Mr. Harwick replied, “I believe that I would consider it a programmatic issue.” Clerk’s Papers at 279.

83 Clerk’s Papers at 43-44. Section I.F.2 of the WSBA Employee Handbook states: “The Board of Governors employs an Executive Director who is the chief of staff. The Executive Director has full administrative authority, including the authority to set staff/personnel policies, to set salaries, and to employ and terminate staff. The Executive Director’s decision on all definitions and interpretations involving this Employee Handbook shall be final.” Clerk’s Papers at 43. Section I.W states: “Termination may result at any time and for any reason not prohibited by law. Grounds for termination include, but are not limited to, violation of the provisions of the WSBA Employee Handbook, excessive absenteeism, failure to meet required work standards or objectives, dishonesty, disruptive behavior, inability to maintain proper working relationships, exceeding the limits of one’s authority, and conduct prejudicial to the best interests of the WSBA.” Clerk’s Papers at 44.

84 Id. at 256.

85 Tr. of Hr’g at 38.

86 113 Wn.2d 612, 613-14, 782 P.2d 1002 (1989).

87 Id. at 616.

88 Id. at 627.

89 Id. at 626.

90 Id. at 628.

91 Am. Br. of Appellant at 23.

92 Clerk’s Papers at 4.

93 Id. at 209.

94 Id. at 418-19. (Emphasis added.)

95 Id. at 367. In Dr. Benjamin’s 1993 Employee Performance Appraisal, Mr. Harwick mentioned five studies proposed by Dr. Benjamin. Id. at 361A.

96 Id. at 419-20. The other reason given by the Steering Committee member for the dual reporting responsibility was to protect the confldentialiiy of the LAE Id. at 420.

97 Binkley v. City of Tacoma, 114 Wn.2d 373, 383, 787 P.2d 1366 (1990).

98 Id. at 377.

99 Id. at 382-83.

100 Id. at 384.

101 84 Wn. App. 332, 335-36, 929 P.2d 448 (1996), review denied, 131 Wn.2d 1022, 937 P.2d 1103, cert. denied, 522 U.S. 949, 118 S. Ct. 368, 139 L. Ed. 2d 286 (1997).

102 Id. at 343.

103 Id. at 343 (citing Meyer v. University of Wash. 105 Wn.2d 847, 851, 719 P.2d 98 (1986)).

104Wilson, 84 Wn. App. at 347.

105 131 Wn.2d 1, 16, 929 P.2d 396 (1997).

106 Clerk’s Papers at 384-85, 460 and Reply Br. of Appellant at 19-20.

107 Allen K. Chen, The Burdens of Qualified Immunity: Summary Judgment and the Role of Facts in Constitutional Tort Law, 47 Am. U. L. Rev. 1, 2, 10 (1997).

108 Id. at 2.

109 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982).

110 Siegert v. Gilley, 500 U.S. 226, 232, 111 S. Ct. 1789, 114 L. Ed. 2d 277 (1991).

111 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968).