NOT RECOMMENDED FOR PUBLICATION File Name: 24a0064n.06
No. 22-5788
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
) FILED JEFF RIECK, ) Feb 12, 2024 Plaintiff-Appellant, ) KELLY L. STEPHENS, Clerk ) v. ) ) HOUSING AUTHORITY OF COVINGTON; ) ON APPEAL FROM THE BOARD OF COMMISSIONERS, HOUSING ) UNITED STATES DISTRICT AUTHORITY OF COVINGTON; JOSEPH U. ) COURT FOR THE EASTERN MEYER; SHAWN MASTERS; JENNIFER ) DISTRICT OF KENTUCKY HOLT; JENNIFER RAWERS; TODD ) VANDERVEER MCMURTRY, as ) OPINION representative for the estate of Stephen T. ) McMurtry; QUINN MCMURTRY, as ) representative for the estate of Stephen T. ) McMurtry, ) Defendants-Appellees. ) )
Before: WHITE, STRANCH, and NALBANDIAN, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Jeff Rieck challenges multiple
rulings of the district court in favor of Defendants-Appellees—the Housing Authority of
Covington (the “HAC”); the HAC Board of Commissioners, collectively and in their individual
capacities; and the estate representatives for Stephen McMurtry, the HAC’s former attorney—in
this action arising from the termination of Rieck’s employment as the HAC’s executive director.
We AFFIRM. No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
I. Facts
A. The HAC and Jeff Rieck
The HAC provides and administers public and subsidized housing in Covington, Kentucky.
Although the agency must follow regulations promulgated by the Department of Housing and
Urban Development (“HUD”), it is governed locally by a five-member board of commissioners
(the “Board”). Covington’s mayor serves as an ex officio member and appoints the Board’s four
remaining members when vacancies arise.
In 2014, when Sherry Carran was mayor of Covington, the Board hired Rieck as its
executive director on a five-year contract. Two years later, Joseph Meyer defeated Carran in
Covington’s mayoral election, replacing her on the Board. Meyer’s campaign highlighted his
intent to change the city’s public-housing policy.
1. Growing Tension and HAC Finances
Meyer took office in January 2017 and immediately instructed Rieck to stop filling units
at City Heights—a deteriorating, 750-person public-housing structure—because Meyer hoped to
close the development within eighteen months. Rieck disagreed with the directive and alleges that
Meyer, in response, “got in [his] face” and came across as “a little bit abusi[ve].” R. 106, PID
1759–60. Former Board Chair Jennifer Allen, an ally of Rieck’s, agreed with the characterization,
claiming that Meyer was “abusive” and had called City Heights a “cesspool.” Id.
The problems escalated from there. Over the next eighteen months, Rieck opposed
numerous Board decisions and directives. For example, the Carran administration had allegedly
promised a $1 million grant to the HAC, and Rieck invoiced the city for that amount on the
penultimate day of her term. The city—with Meyer now the mayor—never paid, and Rieck urged
2 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
the HAC to take legal action to obtain the funds. The Board disagreed and refused to pursue the
grant further.
In 2017, the HAC lost three of its finance-department employees. First, the finance director
retired. Then, the assistant finance director—the person who would have filled the director
vacancy—resigned because Rieck refused him a promotion and raise. The assistant finance
director asked to withdraw his resignation and return to his position, but Rieck refused to rehire
him. A few months later, the accounts-receivable staffer quit. The department then had only a
staff accountant and a temporary finance employee left.
In July 2017, the Board authorized Rieck to enter into an agreement with BDO, a private
accounting firm, to help manage the HAC’s finances until he hired new staff. Rieck had apparently
reached out to BDO earlier that year. The Board authorized Rieck to spend up to $150,000
annually for BDO’s financial services.
The BDO funding ran out just three months later. Rieck did not inform the Board and, by
December, BDO had invoiced the HAC for more than $205,000. In a meeting the same month,
Rieck told the Board that the funding had run out, but he did not disclose the $55,000 cost overrun.
Id. The Board allocated $60,000 to fund BDO for the next three months, not knowing that the
funding would cover only the existing invoices.
In January 2018, Rieck asked the Board to increase funding for BDO by an additional
$150,000, to a total of $360,000. Meyer asked Rieck why he had not filled the vacant finance
positions yet and why it was so expensive to fill the gap left by three employees. In explaining the
funding request, Rieck cited the “difficulty in hiring HAC finance staff, finance salaries
underfunded by HUD, nuances in HUD requirements, and how HAC is advertising job openings.”
Id. at 1763. The Board ultimately approved the funding request.
3 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
At a February 2018 Board meeting, Rieck chastised Meyer for comments about City
Heights he had made the year before, calling them demeaning to HAC’s residents and contrary to
the agency’s mission. At the next Board meeting in March, an HAC staff member read a letter
expressing concern that the Board did not adequately support the HAC’s mission or its staff.
Rieck and Allen maintain that Meyer became increasingly combative at the early 2018
Board meetings. Specifically, they claim that Meyer (1) “once crushed a water bottle loudly during
a meeting, wringing it noisily with his hands,” (2) “would get red in the face when presented with
any sort of opposition,” (3) “would scoot his chair loudly so as to garner attention and passive-
aggressively express his displeasure,” (4) “at least once . . . looked at [Rieck] in such a way that
[Rieck] felt physically threatened,” and (5) “created a hostile and combative work environment.”
Id. at 1764.
2. Board Appointment Controversy
When a Board vacancy arose in April 2018, Meyer appointed Shawn Masters. Rieck and
Allen protested that Masters’s appointment was illegal because Kentucky law prohibited more
than two appointees of the same political party to serve on a city housing authority. With Masters’s
appointment, three of the Board’s five members would be Democrats.
At the May Board meeting, Allen raised the issue of partisanship again. Commissioner
Holt, one of the three Democrats, left the room for a few minutes to change her party affiliation to
“Independent.” Stephen McMurtry, the Board’s attorney, believed the change was sufficient to
cure any legal defect, but Rieck and Allen believed that Masters could not serve on the Board
because his appointment violated Kentucky law at the time it was made.
A week later, the Board held a special session to elect a new chair to replace Allen. Rieck
did not attend—he claims that he took sick leave—and Allen left early in protest, but the three
4 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
remaining members elected Meyer as chair and Masters as vice-chair. Rieck and Allen continued
to be uncooperative because they viewed the Board’s composition, and thus its directives, as
illegal.
On June 19, 2018, the city of Covington sued the HAC in state court to compel recognition
of the Board’s legitimacy and compliance with its directives. At a hearing the next day, which
Rieck did not attend because he was on paid leave, the city obtained a temporary restraining order
requiring all individuals affiliated with the HAC to recognize the Board’s legitimacy and comply
with its orders. Rieck argued that the order was invalid because he had no way to represent himself
at the hearing.
Also on June 20, 2018, the Board held its June meeting. Rieck and Allen failed to attend.
Rieck claimed that he was still on a paid leave that Allen had approved weeks earlier, but he did
not inform the other Board members that he would be absent.
Two days later, McMurtry—the Board’s attorney—called Rieck and expressed the Board’s
willingness to continue working with him, despite philosophical differences concerning the HAC’s
direction. Rieck responded that the Board members could speak to him while he was at work or
could call on his personal cell phone. Meyer then emailed Rieck, accusing him of being
deliberately nonresponsive toward the Board. In response, Rieck expressed a willingness to work
together, but stood firm in his view that he was only willing to work in a way that advanced his
interpretation of the HAC’s mission. Rieck also refused to meet alone with Meyer without Allen
being present, apparently because he refused to recognize Meyer’s election as the Board’s chair.
3. Termination and Aftermath
In July 2018, Rieck issued a request for proposal (“RFP”) for the position of Board
attorney. The Board believed Rieck’s RFP violated the agency’s procurement policy, which
5 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
required Rieck to obtain Board approval before awarding contracts in excess of $20,000. At that
point, the Board began taking steps to terminate Rieck’s employment. McMurtry emailed Rieck
on July 17, 2018, to give him an opportunity to negotiate a settlement and resign voluntarily before
termination, but there was no evidence that Rieck responded, nor does Rieck claim that he
attempted to resign voluntarily. The next day, the Board passed a resolution to suspend Rieck
without pay and notified him of its intent to terminate his employment for cause.
Shortly after, McMurtry accepted an interview request from the River City News, a local
publication, to discuss the Board’s intent to terminate Rieck’s employment. In the interview,
McMurtry said that Rieck’s dismissal was for cause due to a “a long list” of reasons, including
“failures to cooperate with the board, to bring certain items to the board’s attention, to deliver
reports, [and] to provide discussions to the board.” R. 38-6, PID 229. He further said that the for-
cause dismissal was appropriate because “the job was not getting done.” Id.
In September, the Board officially terminated Rieck’s employment. Rieck could have
challenged his termination for cause, but he waived his post-termination hearing.
In October 2018, the HAC Board submitted an eleven-page report to HUD detailing
numerous reasons for its termination of Rieck’s employment, among them that Rieck
(1) mismanaged the finance office and failed to adequately inform the Board of the cost overruns
with BDO, (2) violated the procurement code by failing to prepare the proper paperwork and
specify deliverables from the BDO contract, (3) improperly agreed to pay BDO in excess of the
amount authorized by the Board, (4) failed to quickly hire and train new finance employees,
(5) failed to develop a required transition plan to move the finance work back from BDO to the
HAC, (6) attempted to conceal BDO cost overruns from the Board by moving payments from the
general fund to the capital fund, (7) used public resources for the benefit of private entities in
6 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
violation of the law, (8) sought credit for annual leave in excess of what his contract allowed, (9)
failed to attend and prepare for Board meetings, and (10) failed to perform required audits and
other administrative functions, imperiling the renewal of mortgages on public-housing facilities.
B. Procedural Background
In July 2019, Rieck filed this action, asserting three claims: First Amendment retaliation,
tortious interference with prospective employment, and defamation. In November of the same
year, Rieck filed an amended complaint, adding a breach-of-contract claim.
McMurtry moved to dismiss the defamation and tortious interference claims, which
stemmed from his interview with the River City News. The district court partially granted the
motion by dismissing the tortious interference claim but ordered limited discovery on the
defamation claim. Following discovery, McMurtry filed a motion for summary judgment on the
defamation claim. The district court granted the motion, concluding that McMurtry’s statements
could not be defamatory because they were true. In dismissing both the defamation and tortious
interference claims, the court effectively removed McMurtry as a defendant.1
The remaining defendants moved for summary judgment on the First-Amendment-
retaliation and breach-of-contract claims, and the district court granted the motion.
Rieck appeals.
II. Standard of Review
The district court disposed of Rieck’s tortious interference claim on a motion to dismiss,
which we review de novo. Total Benefits Plan. Agency, Inc. v. Anthem Blue Cross & Blue Shield,
552 F.3d 430, 433 (6th Cir. 2008). In reviewing a motion to dismiss, a court must “construe the
1 Because Stephen McMurtry passed away in the pendency of this litigation, Todd and Quinn McMurtry—co- executors of Stephen McMurtry’s estate—were substituted as defendants.
7 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all
reasonable inferences in favor of the plaintiff.” Royal Truck & Trailer Sales & Serv., Inc. v. Kraft,
974 F.3d 756, 758 (6th Cir. 2020) (quoting Jones v. City of Cincinnati, 521 F.3d 555, 559 (6th Cir.
2008)). Although “detailed factual allegations” are unnecessary, a complaint must contain
“sufficient factual matter, [if] accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). A complaint is insufficient if it makes only “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements.” Id. at 678. To defeat a motion to
dismiss, the plaintiff must present “direct or inferential allegations” for each element of the claim.
Phila. Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013) (quoting Terry v.
Tyson Farms, Inc., 604 F.3d 272, 276 (6th Cir. 2010)).
The district court dismissed the remaining three claims on motions for summary judgment.
This court reviews summary judgment orders de novo. Fortney & Weygandt, Inc. v. Am. Mfrs.
Mut. Ins. Co., 595 F.3d 308, 310 (6th Cir. 2010). Summary judgment is appropriate when there is
no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Even if certain facts are disputed, summary
judgment should be granted if there is a “complete failure of proof concerning an essential
element” of the nonmoving party’s case. Id. at 322–23. In resolving a summary judgment motion,
courts must view the evidence in the light most favorable to the nonmoving party and make all
reasonable inferences in their favor. Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133,
150–51 (2000). A court should not grant summary judgment if a reasonable juror could find for
the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
8 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
III. Analysis
A. Tortious Interference Claim
A claim of tortious interference under Kentucky law requires a showing of six elements:
(1) the existence of a valid business relationship or expectancy, (2) the defendant’s knowledge of
the business relationship or expectancy, (3) the defendant’s intentional interference with that
relationship, (4) the defendant’s improper motive, (5) causation, and (6) special damages. Halle
v. Banner Indus. of N.E., Inc., 453 S.W.3d 179, 187 (Ky. Ct. App. 2014). A defendant acts with
an “improper motive” when he engages in significantly wrongful conduct without justification.
PBI Bank, Inc. v. Signature Point Condominiums LLC, 535 S.W.3d 700, 723 (Ky. Ct. App. 2016).
If a defendant shows that he acted in good faith to protect a legally protected interest, the defendant
may not be held liable. NCAA By & Through Bellarmine Coll. v. Hornung, 754 S.W.2d 855, 858
(Ky. 1988).
The district court properly dismissed Rieck’s tortious interference claim because his
complaint failed to make “direct or inferential allegations” for several elements essential to his
claim. Phila. Indem. Ins. Co., 732 F.3d at 649 (quoting Terry, 604 F.3d at 275–76). For example,
the first element requires Rieck to plead the existence of a valid job opportunity—but he did not
identify a single job he could have obtained, much less one he sought. The second and third
elements require a plaintiff to show that the defendant both knew about and deliberately interfered
with a specific business relationship. Halle, 453 S.W.3d at 187. But no part of the complaint
alleged that McMurtry knew about any specific job opportunity, much less that he intentionally
interfered with it. The assertion that an unknown potential future employer could find McMurtry’s
interview through a Google search is insufficient to adequately plead the elements of a tortious-
interference claim.
9 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
Rieck argues that it is McMurtry’s burden to acquire the missing information through
discovery, rather than his own duty to include the details in his complaint. But it is not McMurtry’s
duty to make Rieck’s claim for him. Rieck must plead sufficient factual matter, that accepted as
true, supports each element of his claim. See Philadelphia Indem. Ins. Co., 732 F.3d at 649. Rieck
has not met his burden here.
B. Defamation
A defamation claim in Kentucky requires proof of the following elements: (1) “a false and
defamatory statement concerning another,” (2) “an unprivileged publication to a third party,” (3)
“fault amounting at least to negligence on the part of the publisher,” and (4) “either actionability
of the statement irrespective of special harm or the existence of special harm caused by the
publication.” Toler v. Sud-Chemie, Inc., 458 S.W.3d 276, 282 (Ky. 2014) (footnote omitted)
(quoting Restatement (Second) of Torts § 558 (1977)). The district court granted McMurtry’s
motion for summary judgment on the defamation claim because it determined that McMurtry’s
statements to the media were true.
Rieck disagrees, alleging that McMurtry made several false statements. First, Rieck argues
that it was false to classify his dismissal as a termination “with cause.” Although Rieck had
received notice of the Board’s intent to terminate him at the time of the interview, the Board had
not yet followed through. The Board would only officially terminate Rieck two months later.
Because Rieck’s employment was not yet formally terminated, Rieck argues that a jury could
determine that the statement was false at the time it was made.
Rieck omits crucial facts. Although McMurtry did classify Rieck’s termination as “with
cause,” he included a caveat: McMurtry told the River City News that the Board was still in the
early stages of the termination process and that Rieck was still entitled to a termination hearing.
10 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
McMurtry spoke truthfully: The Board had initiated termination proceedings against Rieck for
cause.
Rieck also alleges that McMurtry made false statements when he said that the termination
was for “a long list” of reasons, including “failures to cooperate with the board, to bring certain
items to the board’s attention, to deliver reports, [and] to provide discussions to the board.”
Appellant’s Br. 76. But McMurtry made clear that the stated reasons came from the Board’s notice
to terminate Rieck’s employment, rather than from his own assessment. McMurtry did not make
accusations independently; he simply repeated the reasons given by the Board, and Rieck admits
as much.
Rieck argues that McMurtry had a duty to investigate and verify each of the Board’s
reasons before repeating them. However, a plaintiff cannot recover for defamation when an
individual accurately reports on an “official action” or a meeting open to the public on a matter of
public concern. See Restatement (Second) of Torts § 611 (1977); see, e.g., Pearce v. Courier-J.,
683 S.W.2d 633, 636 (Ky. Ct. App. 1985) (“Insofar as this article is an accurate account of judicial
and administrative proceedings, then regardless of the falsity or defamatory character of its
contents, it is absolutely privileged unless its publication ‘was maliciously made.’” (quoting KRS
§ 411.060)). McMurtry’s statements were substantially true because they accurately recounted the
Board’s actions.
Because truth is a complete defense to defamation, Rieck cannot meet the first element of
his claim. See Toler, 458 at 289 n.55. Accordingly, we affirm the district court’s grant of summary
judgment on the defamation claim.
11 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
C. First Amendment Retaliation
Rieck alleges that Defendants violated the Constitution by terminating his employment in
retaliation for his protected speech. The district court granted summary judgment to Defendants
because it determined that Rieck’s speech was not protected by the First Amendment under the
Pickering balancing test. See Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty, 391
U.S. 563 (1968).
1. Rieck’s Speech
In his complaint, Rieck did not quote or specify the speech at the core of his retaliation
claim. Instead, Rieck alleged that he was terminated in response to his “advocacy for public
housing and the mission of HAC; [opposition to] the City’s failure to support public housing and
provide funds for HAC; and . . . opposition to Defendant Meyer’s attempt to operate HAC in
violation of the law and contrary to the mission of HAC.” R. 17, PID 45.
Rieck added more specificity in his district court briefs. Rieck’s allegedly protected speech
included: (1) his view that Masters’s appointment to the Board and the subsequent Board election
was illegal under Kentucky law; (2) his repeated statements at Board meetings opposing Meyer’s
purportedly anti-public-housing policies; (3) his statements alleging that the Board was tyrannical,
corrupt, or Meyer’s puppet; (4) his statements alleging that Meyer’s directives violated federal
housing law; (5) his views that the Board’s new policies were potentially discriminatory; and (6)
other criticism toward Meyer and the Board.2
2 For example, Plaintiff wrote to Meyer in an email: “[I]t is suspect that under your ‘leadership’ that anything positive or possibly even legal or nondiscriminatory will happen with public and affordable housing in Covington. Your perceived hatred for public housing staff and residents and disdain for the housing authority is evident in your actions and comments to some staff, residents, and community members. Many comment about it. Many Golden Towers residents attending board meetings recently have been appalled by your behavior and the behavior of those board members aligned with you.” R. 94, PID 1489.
12 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
For the purpose of its analysis, the district court divided Rieck’s speech into two categories:
(1) speech regarding the Board’s composition, appointments, and legal legitimacy, and (2) speech
disagreeing with the HAC’s policies, operation, and directives.3 The parties make their arguments
in the context of these two categories, and we will address them in this manner as well.
2. Employee Speech
Normally, a First-Amendment-retaliation claim under Section 1983 requires a plaintiff to
establish three elements: (1) the individual engaged in constitutionally protected speech or
conduct, (2) an adverse action was taken against the plaintiff that would deter a reasonable person
from continuing to engage in that protected activity, and (3) there was a causal connection between
the first two elements—that is, the adverse action was “motivated at least in part by [the] protected
conduct.” Dixon v. Univ. of Toledo, 702 F.3d 269, 274 (6th Cir. 2012) (quoting Scarbrough v.
Morgan Cnty. Bd. of Educ., 470 F.3d 250, 255 (6th Cir. 2006)). Generally, these factors involve
fact-based determinations best left to a jury. See Bell v. Johnson, 308 F.3d 594, 603 (6th Cir.
2002).
In a retaliation claim against a public employer, however, a plaintiff must meet additional
requirements. See Pickering, 391 U.S. at 568; Connick v. Myers, 461 U.S. 138, 145 (1983). In
such cases, a plaintiff must show that (1) the speech touched on a matter of “public concern,” (2)
the plaintiff spoke as a private citizen rather than in an official capacity, and (3) the plaintiff’s
constitutional interests outweighed the employer’s interest in efficiently delivering public services.
3 The statements in this category included more than mere policy disagreements. At points, Plaintiff accused Meyer of harassment, threats, and abuse. See, e.g., R. 94-2, PID 1554 (“More than 2 months ago I had complained to the City of Covington regarding what I perceived as your harassment, intimidating, threatening, and bullying behavior towards me. ZERO response from the City to date.”). Rieck also alleged that Meyer acted in a discriminatory fashion toward public housing residents.
13 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
Mayhew v. Town of Smyrna, Tenn., 856 F.3d 456, 462 (6th Cir. 2017) (quoting Evans-Marshall v.
Bd. of Educ., 624 F.3d 332, 337 (6th Cir. 2010)).
3. Private Citizen or Official Capacity
When an individual speaks “pursuant to their official duties,” they are not protected by the
First Amendment. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). However, an individual does
not speak as an employee simply because their speech is related to information they acquired in
the course of public employment. Lane v. Franks, 573 U.S. 228, 240 (2014). In fact, the Supreme
Court has recognized that speech from public employees holds “special value” because it is
developed through extensive experience and expertise with the subject matter. Id. The critical
question, then, is “whether the speech at issue is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.” Id.
This court has recognized that determining whether an employee speaks as a private citizen
or public employee “can be challenging.” Mayhew, 856 F.3d at 464. Our precedent gives several
non-exhaustive factors to consider, including “the speech’s impetus; its setting; its audience; and
its general subject matter.” Id. (citing Handy-Clay v. City of Memphis, 695 F.3d 531, 540 (6th Cir.
2012)). These “‘who, where, what, when, why, and how’ considerations” help determine whether
the speech at issue is ordinarily within the scope of an employee’s duties. Id.
a. Statements on the Board’s Legal Authority
The district court determined that Rieck acted in his official capacity when he disputed the
legality of the Board’s appointments and chair election. The district court concluded that Rieck
made the statements to ascertain the chain of command and determine to whom he was
accountable, rather than making the statements in the public interest. If Rieck were simply trying
to figure out his supervisor, his speech would fit within his traditional job duties. Rieck denies the
14 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
district court’s characterization, arguing that his statements were made in the public interest to
ensure the agency operated in accordance with the law.
We begin by examining Rieck’s formal job description. See DeCrane v. Eckart, 12 F.4th
586, 596 (6th Cir. 2021). Rieck’s official duties required him to “[m]aintain close personal contact
with all of the Commissioners . . . and consult with them on matters of policy, provide data and
study materials, explain recommendations[,] and answer questions.” R. 76-4, PID 516. In emails
he sent to Board members, Rieck made numerous recommendations regarding the Board’s
compliance with Kentucky law. See, e.g., R. 94-2, PID 1555 (“There is a question as to the
legitimacy of the Boards [sic] actions. . . . Jen Allen was legitimately elected Board Chairperson
and has been acting in that capacity for some time.”). Defendants thus argue that Rieck’s speech
disputing the Board’s appointments and legal authority fell squarely within his job duties.
Rieck disagrees, citing a case from this court holding that “extraordinary rather than
everyday communication” is likely to be private speech. Handy-Clay, 695 F.3d at 542 (quoting
Pucci v. Nineteenth Dist. Ct., 628 F.3d 752, 768 (6th Cir. 2010)). Handy-Clay, the plaintiff in that
case, raised serious allegations about corruption within her workplace. Id. at 542–43. At the time,
Handy-Clay worked as a public-records coordinator, not a corruption watchdog or auditor, so the
substance of her speech fell outside her standard job duties. Id. As a result, even though Handy-
Clay’s speech was related to her workplace, this court held that she spoke as a concerned citizen
rather than in her official capacity. Id. Rieck believes his speech is like Handy-Clay’s because
accusing Meyer and the HAC of violating state law was extraordinary speech and not a normal
part of his job responsibilities.
Rieck’s argument misses the mark. As the executive director, Rieck was required to
provide “recommendations” to the Board on issues related to the HAC. Even irregular guidance
15 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
fell within the scope of Rieck’s job duties if it effectuated the purpose of furnishing guidance to
the Board. Here, Rieck’s speech may have been novel and provocative, but it served to inform the
Board of Rieck’s belief that the HAC was operating in violation of state law. The nature of Rieck’s
guidance to the Board did not change from professional to personal speech simply because it was
unorthodox. This is very different from the speech in Handy-Clay, where the employee’s speech
regarding public corruption fell well outside her duties as a records coordinator. Id.
We also consider the audience to which Rieck’s speech was directed because “[s]peech
outside the chain of command is less likely to be within an employee’s ordinary job
responsibilities.” Buddenberg v. Weisdack, 939 F.3d 732, 740 (6th Cir. 2019). In Handy-Clay,
for example, this court concluded that the employee’s speech fell outside her job responsibilities
because her statements were made to individuals outside her department and chain of command.
695 F.3d at 542–43.
Rieck argues that this factor weighs in his favor because he sent an email to individuals
outside the HAC—including to staff at the city of Covington and HUD—raising his arguments
related to the Board’s legal compliance. However, the email’s recipients also included members
of the Board—his superiors. This court has previously held that simply adding members of the
public as recipients to a message in addition to a supervisor “does not change anything” about the
character of the speech. Keeling v. Coffee Cnty., Tenn., 541 F. App’x 522, 527 (6th Cir. 2013).
When the primary audience of an employee’s speech includes a supervisor, it is likely made in an
official capacity. DeCrane, 12 F.4th at 596.
Moreover, it was Meyer who added the other individuals to the email chain. Rieck only
emailed the outside parties because Meyer wanted to keep them informed in the first place, and
16 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
speech made to an outsider at the employer’s direction is considered official speech. See Weisbarth
v. Geauga Park Dist., 499 F.3d 538, 544–45 (6th Cir. 2007).4
Finally, we consider the setting in which Rieck made his speech. Here, Rieck’s speech
came from his official email account, and Rieck admitted in a deposition that at least certain
portions of the email chain were work-related. Speech concerning a work-related issue is likely
to be part of the employee’s official duties when sent from an official email account. DeCrane,
12 F.4th at 596. Here, the HAC’s legality and legitimacy were a vital work-related issue for Rieck,
and he made the statements within the setting of his official email correspondence.
Because Rieck’s speech regarding the Board’s legal authority fell within his job duties,
was made to individuals within his chain of command, and was shared through an official email
address, the district court did not err in concluding that Rieck spoke in his official capacity.
Consequently, the speech was not protected by the First Amendment.
b. Policy and Personnel-Related Statements
Rieck made the remaining statements—related to his disagreements with the Board’s
policies and operation—at Board meetings, from his professional email account, and at other job-
related functions. Moreover, he explicitly used avenues available to him only as executive
director. For example, Rieck consistently spoke at Board meetings during the designated
“Executive Director’s Minute,” rather than during the public-comment portion. Rieck admitted in
testimony that his statements to the Board fell within his job responsibilities, and, when asked to
list his professional accomplishments, Rieck wrote that he was proud to have taken unpopular
4 Additionally, because Rieck worked under HUD’s authority and alongside the city of Covington, the recipients of his email were not truly outsiders or members of the public. Rather, they were individuals with whom Rieck corresponded regularly in his position as director.
17 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
positions in support of public housing. On these facts, the district court concluded that Rieck also
made the policy-related statements in his official capacity rather than as a private citizen.
Rieck disputes the motives assigned to him by the district court. He argues that many
statements he made—for example, those accusing Meyer of harassment and complaining about
the Board’s lack of support—were not made as part of his job duties. But it is doubtful that Rieck
would accuse Meyer of harassment as a member of the public and not as an employee. Indeed,
Rieck lodged complaints with the HAC’s HR consultant and with HUD officials, both workplace-
related entities, which would not have occurred if he simply spoke as a member of the public.5
Rieck further argues that the First Amendment protected his speech because, as the
executive director, he was in the best position to learn about and speak authoritatively on public
issues related to the HAC. See Lane, 573 U.S. at 236 (“There is considerable value, moreover, in
encouraging, rather than inhibiting, speech by public employees. For ‘[g]overnment employees
are often in the best position to know what ails the agencies for which they work.’” (quoting Waters
v. Churchill, 511 U.S. 661, 674 (1994) (plurality opinion))).
We appreciate and recognize the value that public employees provide when they speak on
matters of public concern in which they have expertise. But accepting that Rieck had a noble
intent, the First Amendment protected his speech only to the extent “it would not have been
conveyed in [his] capacity as the director.” DeCrane, 12 F.4th at 598. However, Rieck’s
statements were not made as a private citizen; rather, he spoke on matters fundamentally
5 Even if Rieck’s statements complaining of the Board member’s conduct were made in his personal capacity, internal personnel disputes or complaints about an employer’s performance are generally not matters of public concern unless they address “actual or potential wrongdoing or any breach of public trust.” See Brandenburg v. Hous. Auth. of Irvine, 253 F.3d 891, 898 (6th Cir. 2001) (citing Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir. 1989), for support, a case where there was no matter of “public concern” where a letter described “the perceptions of six disgruntled police patrolmen that their chief’s allegiances were misplaced, that his decisions were inappropriately based on the fear of union retaliation, and that his constant . . . reminders of the money their unit was costing the department [was irritating]”).
18 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
intertwined with his job duties, using his official government-operated email address and the time
reserved exclusively to him as the executive director at Board meetings. Rieck’s duties required
him to advise the Board in various formats, and his use of methods only available to him as the
executive director constituted work-related communications. Ultimately, the form of Rieck’s
speech was just as important as its substance. See DeCrane, 12 F.4th at 596; see also Anderson v.
City of Jellico, Tenn., No. 21-5704, 2022 WL 1308503, at *3–5 (6th Cir. May 2, 2022) (holding
that statements made by police officers during the time reserved to them at city council meetings
were made in their professional capacities). And both the form and substance of Rieck’s speech
effectuated his job duties.
Rieck again argues that his speech was not made in his official capacity because it was far
outside the norm usually expected from his position. However, like his speech disputing the
Board’s legitimacy, Rieck’s duty to provide guidance to the Board did not cease simply because
the advice was irregular, divisive, or controversial. No matter how unique or novel his views, the
responsibility to communicate feedback—policy-related or otherwise—fell squarely within his
routine job responsibilities.
We affirm the district court’s grant of summary judgment on Rieck’s claim of First
Amendment retaliation because there is no disputed issue of fact that he spoke in his official
capacity as the HAC executive director.6
D. Breach of Contract
Under Rieck’s employment contract, the HAC could terminate his employment at any time
with or without cause. If terminated without cause, Rieck was entitled to six months’ pay and
6 Because Rieck spoke in his official capacity, it is not sufficient that some of his speech touched on matters of public concern.
19 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
benefits. Severance pay was not required for termination with cause. The Board could terminate
Rieck for cause if it determined, “in its sole discretion,” that Rieck had failed to fulfill his
employment agreement in one of eleven ways, including: (1) “failure to perform the duties of
executive director in a manner satisfactory to the Board,” (2) “[i]nsubordination or deliberate
refusal to follow the instructions of the Board,” (3) “[c]hronic absenteeism,” (4) “[a]ctions
involving moral turpitude,” and (5) “[f]raud, misappropriation, embezzlement, or acts of similar
dishonesty.” R. 76-3, PID 509.
A report prepared for HUD by the Board provided an extensive list of reasons for Rieck’s
dismissal and examples of his alleged poor performance. Plaintiff disputes many of the individual
reasons given for his termination, arguing that they were “false, exaggerated, or de minimis.”
Appellant’s Reply Br. 19. Defendants argue that even if certain rationales were improper or trivial,
their cumulative weight is sufficient to terminate Rieck for cause. We need not adjudicate the
merits of each rationale provided for Rieck’s dismissal because his mishandling of the HAC’s
finance department and the BDO contracts are undisputed and sufficient to warrant his termination
for cause.
The HAC finance department lost three of its four permanent employees under Rieck’s
management. In July 2017, the Board authorized Rieck to spend up to $150,000 for a year of
BDO’s financial services to fill the gap left by the vacancies. Rieck exhausted the allocation in
October and, without informing the Board ahead of time, amassed an additional $55,000 in BDO
invoices through the end of the year. Not only was Rieck prohibited from executing a contract
worth more than $20,000 without the Board’s approval, but he failed to inform the Board of the
extent of the cost overrun until January 2018. The Board authorized an additional $60,000 for
BDO’s work in December 2017—intended to last three more months—but it did not know at the
20 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
time that Rieck had already exhausted the funding beforehand. In January 2018, Rieck requested,
and the Board approved, an additional $150,000, bringing the total funding for BDO up to
$360,000. And by March 2018, Rieck requested a further $110,000 to fund BDO’s services.
Although the last request for funding was not approved by the Board, the expenditures represented
a significant sum for an agency with a $5.5 million annual operating budget and only three missing
finance employees. Because the HAC’s finance department still had only one permanent
employee nine months after BDO’s contract began, the Board concluded that Rieck had “no
strategy to fill out the staff and exit from the BDO and other temp services.” R. 76-41, PID 649.
The report further alleged that Rieck violated the procurement policy when he failed to
specify deliverables in his agreements with BDO, concealed the sum HAC had paid to BDO by
moving the payments from the general fund to the capital fund balance sheet, and used HAC funds
to finance BDO’s services for private organizations that were associated with the HAC. The report
also detailed Rieck’s attempt to conceal audits of the HAC and its partner organizations, which
uncovered widespread financial problems—including more than $1 million in missing assets.
Ultimately, Meyer was forced to utilize an open-records request to obtain the financial documents
because Rieck refused to turn them over.
Rieck disputes the HAC’s characterization of his conduct, arguing that (1) the Board
acknowledged that it should have exercised greater oversight during the BDO ordeal, (2) the Board
waited until July 2018 to terminate Rieck’s employment, even though it learned about the facts
related to the BDO contract months earlier, (3) BDO’s contract was partially offset by the money
that HAC saved on the salary and benefits of the vacant finance positions, (4) two newly-hired
temporary finance employees were on track to become permanent after their probationary period
ended, (5) several potential new finance employees quit or refused job offers to work at the HAC,
21 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
(6) the Board had visibility into the BDO cost overrun because he provided financial statements to
the Board monthly, and (7) there was insufficient proof that Rieck improperly used HAC funds to
fund financial consulting services for other entities. For these reasons, Rieck argues that a
reasonable jury could determine that his conduct did not warrant termination under his
employment contract.
Even when considering the facts in Rieck’s favor, several undisputed acts enabled a for-
cause termination under his employment contract, including: (1) Rieck authorized an agreement
with BDO in excess of $20,000 without Board approval and failed to specify deliverables under a
consulting contract, both of which were violations of the procurement policy; (2) Rieck repeatedly
refused to turn over financial documents, requiring Board members to file open-records requests
to obtain them, and (3) Rieck did not perform required audits from 2015 to 2017 and failed to
inform the Board of the deficiency, imperiling the mortgage renewal of an apartment complex.
Under Rieck’s contract, the Board could terminate Rieck’s employment for cause if it
determined, in its “sole discretion,” that he had failed to perform his duties in a manner satisfactory
to the Board, deliberately refused to follow the Board’s instructions, or committed acts of financial
dishonesty. Rieck breached each of these provisions. First, Rieck deliberately refused the Board’s
instructions by refusing to turn over records after they were requested. Second, the Board
reasonably determined that Rieck failed to perform his duties in a satisfactory manner because he
failed to complete annual audits as required and did not comply with the agency’s procurement
policy. And third, Rieck’s conduct related to the BDO agreement could be reasonably construed
by the Board to constitute financial dishonesty. Rieck’s arguments attempting to justify or
minimize his conduct do not undermine the basic factual predicates undergirding his termination
22 No. 22-5788, Rieck v. Housing Auth. of Covington, et al.
Finally, Rieck argues that a jury must decide whether his actions justified his termination
for cause, rather than a court. However, the “interpretation and legal effect of a contract is a matter
of law,” not fact. Cumberland Valley Contractors, Inc. v. Bell Cnty. Coal Corp., 238 S.W.3d 644,
647 (Ky. 2007). Although a motion for summary judgment requires us to view the facts in the
light most favorable to Rieck, we interpret the provisions of his employment contract de novo. Id.
The contract’s provisions governing for-cause termination encompassed the conduct at issue here.
Accordingly, we affirm the district court’s grant of summary judgment on Rieck’s breach-of-
contract claim.
IV. Conclusion
We AFFIRM the dismissal of Rieck’s tortious interference claim and the grant of summary
judgment to Defendants on Rieck’s claims of First Amendment retaliation, defamation, and breach
of contract.