Randall Brickey v. Robb Hall

828 F.3d 298, 41 I.E.R. Cas. (BNA) 813, 2016 U.S. App. LEXIS 12596, 100 Empl. Prac. Dec. (CCH) 45,594, 2016 WL 3648462
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 8, 2016
Docket14-1910
StatusPublished
Cited by22 cases

This text of 828 F.3d 298 (Randall Brickey v. Robb Hall) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Randall Brickey v. Robb Hall, 828 F.3d 298, 41 I.E.R. Cas. (BNA) 813, 2016 U.S. App. LEXIS 12596, 100 Empl. Prac. Dec. (CCH) 45,594, 2016 WL 3648462 (4th Cir. 2016).

Opinion

Reversed and remanded by published opinion. Judge DIAZ wrote the opinion, in which Judge DUNCAN and Judge KEENAN joined.

DIAZ, Circuit Judge:

Police officer Randall Brickey was fired for comments he made as a candidate for town council that were critical of his employer, the Saltville Police Department, and its Police Chief, Rob Hall. Brickey filed suit under 42 U.S.C. § 1983 for retaliatory discharge in violation of the First Amendment. The district court denied Hall qualified immunity, and this interlocutory appeal followed. Because it was debatable at the time of Brickey’s dismissal that his speech interests as a citizen outweighed Hall’s interests as a public employer, we conclude that Hall is entitled to qualified immunity. We therefore reverse.

I.

A.

Brickey was an officer with the Saltville Police Department from December 1, 2006, to May 21, 2012, the day his employment was terminated. Hall became Police Chief in July 2011, taking over a department struggling with well-publicized problems of financial mismanagement, officer misconduct, and a general lack of professionalism. In an effort to improve the department’s operations and public image, Hall instituted several policy changes, including increased foot patrols, a stricter dress code, and new payroll procedures.

*301 In early 2012, Brickey decided to run for Saltville Town Council. He discussed the plan with Hall, who indicated that the campaign would not cause employment problems so long as Brickey did not campaign in uniform or disparage the department in contravention of departmental policy.

During the campaign, two local newspapers posed questions to the candidates, inviting them to submit responses for publication. One paper provided this prompt: “Motivation for seeking office/why should the voters choose you?” J.A. 337. After identifying himself as a member of the Saltville Police Department with twenty-three years of experience as a police officer, Brickey responded in relevant part as follows:

I teach the D.A.R.E. [i.e., Drug Abuse Resistance Education] Program at Salt-ville Elementary School. ... I went in to talk to Chief (Rob) Hall about ordering the supplies for the D.A.R.E. graduation. I was told there was no money to place the order. After checking with the accounts payable clerk to see where the $500 in the police department budget had been spent, I was shown several invoices that were charged to the D.A.R.E. account. The items on the invoices had nothing to do with the D.A.R.E. program. I also found, from looking at a copy of the budget that I obtained from the town, that the town receives $225,000 in highway maintenance funds from the state. Only $3,000 is approved in the budget for paving. Seeing this, along with the other misuse of taxpayers’ money, shows me that we have a very poor management at the council level and there needs to be a change.

Id.

Next, in response to a question about the town’s “greatest needs,” Brickey noted road paving, improved management of the town pool, and the following changes to the Saltville Police Department: “The town police department needs to be more professional. Officers need to do more foot patrols during the day shift and become more familiar with business owners. The police department needs to be more [aggressive] on investigations and focus more on drug trafficking.” Id.

Finally, Brickey responded to a question as to how to meet those needs. He first noted that he had “been told by some business owners in town during [his] campaign for town council that they would like to see more foot patrols from the police department, and would like to see the chief during daytime hours.” Id. He went on to propose the addition of a full-time investigator, stating that the town had a serious drug problem and that he knew of “cases that need to be investigated by the police department.” Id. Brickey’s statements were printed in late April 2012.

About a week later, Hall informed Brickey that he believed Brickey’s statements violated departmental policy. The alleged violations of the Police Department Policy Manual included (1) a failure to “display respect for [his] superior officers, subordinates, and associates”; (2) “speak[ing] rumors detrimental to the department or another employee”; (3) “us[ing] or attempting] to use [his] official position, badge or credentials for personal or financial gain or advantage”; (4) “communicating] ... information concerning operations, activities or matters of police business, the release of which ... may have an adverse impact on the department image, operations, or administration”; and (5) “criticizing] or ridiculing] the Department, its policies, or other employees by speech ... [that] undermines the effectiveness of the Department, interferes with the maintenance of discipline, or is made *302 with reckless disregard for truth or falsity.” J.A. 352-55, 357-70.

Hall hired Gary Reynolds — an out-of-state, former police chief — to investigate the allegations and to determine whether Brickey in fact violated departmental policies. Reynolds interviewed Hall, Brickey, Assistant Chief Erik Puckett, the Saltville town auditor, and the other five officers in the police department. In speaking with Reynolds, Brickey withdrew or attempted to clarify some of his statements. Asked about his comments on the professionalism of the department, Brickey said, “It’s not that I meant they are unprofessional, we just need to be on patrol more.” J.A. 373. Regarding the D.A.R.E. comments, Brick-ey admitted that the $500 was in fact accounted for in a different line item of the budget. J.A. 384. He also conceded that he “should have said mismanagement of funds versus misuse of funds.” J.A. 387. Brickey insisted that his “statements regarding the DARE account were not about Chief Hall, they were about the [town] council members.” J.A. 383.

According to Reynolds’s investigation, Brickey’s statements caused concern within the Saltville government and police department. A town auditor interpreted Brickey’s statements as alleging that Chief Hall was misusing funds. J.A. 381. This “upset” the auditor, who, after looking into the matter, “found no misuse of taxpayer money by Chief Hall.” Id. Some police officers believed that the comments reflected poorly on the department, though at least two officers told Reynolds that they had not read Brickey’s comments. J.A. 381-83, 386.

In Reynolds’s final estimation, Brickey’s statements to the newspapers violated departmental policies. J.A. 387. According to Reynolds, Brickey’s statements regarding the “misuse” of D.A.R.E. funds “clearly ‘bad mouthed’ the Police Department and especially the Police Chief, and thus were harmful to the public trust of Chief Hall as well as his integrity.” Id. Moreover, Reynolds faulted Brickey for failing to investigate properly or verify his allegations that police funds were being misused. J.A. 388. Specifically, Reynolds found that Brickey overlooked the fact that the D.A.R.E. budget line item also included funds for “Community Relations,” and that the invoices Brickey observed were for legitimate community-relations expenses. Id.

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828 F.3d 298, 41 I.E.R. Cas. (BNA) 813, 2016 U.S. App. LEXIS 12596, 100 Empl. Prac. Dec. (CCH) 45,594, 2016 WL 3648462, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randall-brickey-v-robb-hall-ca4-2016.