Casey v. City of Cabool

12 F.3d 799, 1993 WL 532717
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 28, 1993
Docket93-1262
StatusPublished
Cited by71 cases

This text of 12 F.3d 799 (Casey v. City of Cabool) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Casey v. City of Cabool, 12 F.3d 799, 1993 WL 532717 (8th Cir. 1993).

Opinion

MORRIS SHEPPARD ARNOLD, Circuit Judge.

The City of Cabool, Missouri (“the City”) and two city council members appeal a district court judgment and award of attorney’s fees in favor of John C. Casey, a former employee who brought this action under 42 U.S.C. § 1983 after he was discharged. At issue is whether a municipal government may be held hable for discharging an employee for making private statements critical of city officials and policies. We hold that it may and therefore affirm.

I.

John Casey was employed by the City as a police and fire dispatcher beginning in 1981. He also held the position of fire chief for the City before resigning from that post in September of 1983. The reason for his resignation at that time, and the apparent catalyst for the present dispute, was Casey’s deeply held and frequently expressed opinions on City fire department policies.

On May 3, 1990, Casey went to the office of City Administrator Michael MacPherson prior to beginning his work shift. While in MacPherson’s office, Casey expressed his disapproval of certain fire' department policies. When the work whistle blew at 5 o’clock, Casey reported to work at the police department across the street. A few minutes later MacPherson followed, and the conversation regarding fire department policies continued in Casey’s office. At that point Casey suggested that the Missouri state auditor might be contacted about these issues, and that such scrutiny might mean trouble for the city clerk and the mayor. Casey elaborated by asserting that the clerk had employed city resources to effect repairs at her home, and that when he informed' the mayor he was told that the clerk was retiring soon. Casey then told MacPherson that when the mayor was reelected he reappointed the clerk, evidently suggesting that the ■mayor had done something he previously indicated he would not do. Casey also apparently alleged that the clerk’s son had once shown up intoxicated for duty as a volunteer fire fighter. The city produced evidence that [802]*802Lynn Jones, Casey’s supervisor, walked in and overheard some of the conversation.'

MacPherson related the conversation to the mayor and. the city clerk, and a few days later, to an executive session ■ of the city council. MacPherson stated that Casey had no right to question city council policy, and that to do so was unacceptable, insubordinate, and disloyal. As a result, the council voted two to one to terminate Casey’s employment with the City.

Casey brought this action under 42 U.S.C. § 1983, alleging that he had been discharged from public employment in violation of his right to free speech. The district court entered judgment upon a jury verdict of $18,-888, and awarded plaintiff attorney’s fees of $65,987 and expenses of $3,294.89. The City now appeals both the judgment and the fee award.

II.

It was once the law that:

[w]ords spoken in derogation of a ... great officer .of the realm, which are called scandalum magnatum, are held to be ... heinous; and,..... when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury:' which is redressed ... on behalf of the crown, to inflict the punishment of imprisonment on the slanderer_

3 William Blackstone, Commentaries on the Laws of England 123-124 (1768). A revolution intervened, however, so that today “[i]t is clearly established that a State-may not discharge an employee on a basis that infringes that employee’s constitutionally protected interest in freedom of speech.” Rankin v. McPherson, 483 U.S. 378, 383, 107 S.Ct. 2891, 2896, 97 L.Ed.2d 315 (1987). This does not imply that public employees are free to say .anything they wish. Only constitutionally protected speech serves as an impermissible basis for discharge of a public employee,

Even where constitutionally protected speech is involved, public employees are not free simply to speak their minds. 'The determination of whether a discharge' for free speech was proper requires “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. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). The question of whether Casey’s discharge was permissible, then, requires (1) an inquiry into whether his speech is constitutionally protected, and (2) a balancing of his interest in free speech against the City’s interest in efficient administration.

A.

The threshold question is therefore whether Casey’s speech can be “fairly characterized as constituting speech on a matter of public concern.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983). “Whether an employee’s speech addresses a matter of public concern must be determined by the .content, form, and context of a given statement, as revealed by the whole record.” Id. at 147-148, 103 S.Ct. at. 1690. Because Casey’s speech amounted to straightforward criticism of government officials and policy, we hold that it falls squarely within the meaning of “speech on a matter of public concern.”

Criticism, no matter how obnoxious or offensive, of government’ officials and their policies clearly addresses matters of public concern. See Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). In Rankin, a clerical worker in a law enforcement agency was held to have spoken on a matter of public concern when, after hearing of an attempt on the life of the president, she said, “If they go for him again, I hope they get him.” Id. at 380, 107 S.Ct. at 2844. The court reasoned that the statement, made within the context of criticism of the president’s policies, was. clearly an expression of displeasure with those policies.

Similarly, when Casey’s statements are considered in context, as Connick requires, it becomes apparent that they dealt with matters of ’public concern. They were made in the context of a discussion of City policy and [803]*803the actions of City officials. Few topics are of greater public concern.

The City argues that, since Casey’s underlying concern was the effect that City fire policy would have on his own pocketbook, his statements were really of private, and not public, concern. This reasoning is unpersuasive. A taxpayer’s concerns that a City policy might raise his insurance premiums is a concern about a public policy, the effects of which are ultimately always private.

While MacPherson, the mayor, the city clerk, and the majority of the Cabool city council may have taken great offense upon hearing Casey’s statements, we emphasize that offensiveness is irrelevant to the issue of whether a matter is of public concern. See Rankin, 483 U.S. at 387, 107 S.Ct. at 2898-99.

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