Cotter v. Board of Trustees

971 P.2d 687, 14 I.E.R. Cas. (BNA) 1179, 1998 Colo. J. C.A.R. 6118, 1998 Colo. App. LEXIS 303, 1998 WL 856876
CourtColorado Court of Appeals
DecidedDecember 10, 1998
DocketNo. 97CA1028
StatusPublished
Cited by1 cases

This text of 971 P.2d 687 (Cotter v. Board of Trustees) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Cotter v. Board of Trustees, 971 P.2d 687, 14 I.E.R. Cas. (BNA) 1179, 1998 Colo. J. C.A.R. 6118, 1998 Colo. App. LEXIS 303, 1998 WL 856876 (Colo. Ct. App. 1998).

Opinion

[690]*690Opinion by

Judge ROTHENBERG.

Plaintiff, Christopher S. Cotter, appeals the summary judgment entered in favor of defendant, Board of Trustees of the University of Northern Colorado (University). We reverse.

Cotter filed this action under 42 U.S.C. §1983 (1994) alleging that his First Amendment rights of free speech and association were violated when he was denied promotion and tenure at the University of Northern Colorado in retaliation for spealdng out against University officials and for his association with another faculty member.

Thereafter, the University moved for summary judgment. The trial court granted the University’s motion, concluding that Cotter’s speech did not involve matters of public concern.

I. Freedom of Speech

Cotter maintains that summary judgment was improper because his speech touched on matters of public concern and his association with a fellow colleague was protected under the First Amendment. We agree.

In reviewing a public employee’s First Amendment retaliation claim, we apply the four-step test derived from Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) and Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). See also Melton v. City of Oklahoma City, 879 F.2d 706 (10th Cir.1989), modified, on other grounds, 928 F.2d 920 (10th Cir.1991) (en banc), cert. denied, 502 U.S. 906, 112 S.Ct. 296, 116 L.Ed.2d 241 (1991); Kemp v. State Board of Agriculture, 803 P.2d 498 (Colo.1990).

The first two steps present legal questions as to whether the expression at issue is subject to the protection of the First Amendment. These questions of law are resolved by the court and are reviewed de novo on appeal. Melton v. City of Oklahoma City, supra; Kemp v. State Board of Agriculture, supra.

The court first must determine whether the employee’s speech can be fairly characterized as constituting speech on a matter of public concern. If it can be so characterized, the court then must balance the employee’s interest as a citizen in commenting upon matters of public concern against the interest of the state as an employer in promoting the efficiency of the public service it performs through its employees. Gardetto v. Mason, 100 F.3d 803 (10th Cir.1996). See Pickering v. Board of Education, supra; Connick v. Myers, supra.

The third and fourth steps derived from Pickering concern causation and involve questions of fact to be resolved by the fact-finder. Melton v. City of Oklahoma City, supra; Gabel v. Jefferson County School District R-1, 824 P.2d 26 (Colo.App.1991).

In the third step, the factfinder must determine whether the employee’s interest outweighs the employer’s interest, in which case the employee must then prove by a preponderance of the evidence that the protected speech was a substantial factor or a motivating factor in the detrimental employment decision.

In the fourth step, the burden shifts to the employer to convince the factfinder by a preponderance of the evidence that the employer would have reached the same decision, even absent the protected conduct. Gardetto v. Mason, supra. See Pickering v. Board of Education, supra; Connick v. Myers, supra.

A. Public Concern

Whether speech touches on a matter of public concern requires an examination of each statement to determine whether it relates to any matter of political, social, or other community concern. Connick v. Myers, supra; Kemp v. State Board of Agriculture, supra. This is done by analyzing the content, form, and context of the statements in conjunction with the motivation or point of the statements as revealed by the whole record. Connick v. Myers, supra; Kemp v. State Board of Agriculture, supra; Barrett v. University of Colorado Health Sciences Center, 851 P.2d 258 (Colo.App.1993).

Speech concerning the use of public funds generally touches on a matter of [691]*691public concern. Gardetto v. Mason, supra. Speech which discloses evidence of corruption, impropriety, or other malfeasance on the part of city officials clearly concerns matter of public import. Conaway v. Smith, 853 F.2d 789 (10th Cir.1988). In contrast, the First Amendment does not protect criticisms of internal management decisions made by public employees. Gardetto v. Mason, supra; Holland v. Board of County Commissioners, 883 P.2d 500 (Colo.App.1994).

Importantly, here, Cotter not only raised general issues of mismanagement and misappropriation of funds by the University’s Dean of Liberal Arts and Sciences (Dean), but he asserted that certain funds budgeted for the math and science departments were unaccounted for by the Dean. Following Cotter’s statements, an investigation was conducted by an ad hoc committee which also identified a discrepancy between the money authorized for the Dean to distribute to the departments and the actual amounts the Dean had distributed.

We conclude that Cotter’s allegations of malfeasance and impropriety concerning the use of public funds at a public university were not merely criticisms of internal management decisions, but touched on matters of public concern. Thus, they are protected by the First Amendment.

We reach a similar conclusion regarding Cotter’s claims that the Dean abused the authority of his office by: (1) selecting and sending only his own proposal for possible grant money; and (2) making salary and promotion decisions in a manner that discriminated against his critics. Specifically, by alleging that the Dean was furthering his own financial interest rather than acting in ■ the best interest of the University, Cotter was raising issues of financial impropriety by the Dean. Thus, Cotter’s allegations that the Dean was using a public office to further private financial gain touched on a matter of public concern.

Cotter’s allegations of mismanagement of the University Computer Center also touched on a matter of public concern. The thrust of Cotter’s claim was more than just that public funds were being wasted and more than a matter regarding the internal allocation of resources within the University.

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971 P.2d 687, 14 I.E.R. Cas. (BNA) 1179, 1998 Colo. J. C.A.R. 6118, 1998 Colo. App. LEXIS 303, 1998 WL 856876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cotter-v-board-of-trustees-coloctapp-1998.