My Sunday column (17 January) argues that all the county officials who are suing each other should get out of the litigation business and back to governing the county as effectively as possible. There was more to say than I could fit into a newspaper column, so I planned to supplement it with two further posts -- this one, concerning the Sheriff's lawsuit against two County Commissioners, and a second concerning the County Manager's lawsuit against the Sheriff. Both should be dismissed, in my view.
So what follows is my effort to share with readers some opinions on the legal situation in the Sheriff's suit; and at the end I've included a copy of the employee complaint that apparently triggered the investigation of Sheriff Vigil that he complains of in his lawsuit. (However, Only a lawyer or someone particularly interested in this county's management should bother to read this post!)
It's important to know that cases may ultimately get decided by the facts (I say your dog bit me, you say it didn't, and the jury decides; or you come into court and prove it wasn't your dog) or by the law (I allege that your dog barked so loud it frightened my cat, and you argue to the court that even if everything I alleged is true, there's no “cause of action” for defendant's dog scaring plaintiff's cat. (If I sue you alleging you lied to me about the car you were selling me, and we disagree about the true condition of the car and what you actually said, that's a factual dispute; but if I say you promised to kiss me, and I was very disappointed when you refused to keep that promise, there's instead a legal dispute about what the hell I'm wasting the court's time for. And I'd lose.)
Federal law provides for a “12(b)(6) motion to dismiss in which defendant argues that Plaintiff's case is legally insufficient. The court, assuming that all plaintiff's factual allegations are true, can throw the case out for purely legal reasons.
Here, where Sheriff Vigil has sued two county commissioners for actions they allegedly took as commissioners, they have what's called “qualified immunity.” Because that's an “affirmative defense,” it can be raised by such a motion and decided early – partly to spare public officials the burdensome task of dealing with discovery and depositions and paying lawyers for an obviously inadequate case.
In such situations, the would-be plaintiff has a fairly heavy burden, and must show:
- that D's alleged actions violated a constitutional or statutory right and
- that the right at issue was clearly established at the time of the alleged unlawful conduct.
Were the Alleged Actions a Big Enough Deal to Warrant the Claim Made?
Did the alleged actions violate a Constitutional or statutory right?
Sheriff Vigil makes two allegations: that he was removed from the dais as a reprisal for his speech and that the County authorized an investigation of him.
Legally, there has to be a “material adverse action.” Firing an employee or decreasing his or hr pay would obviously qualify; but lowering his name six inches on his office door, or moving her from 4th to 6th in the order a messenger followed in delivering the internal mail? No. As the 10th Circuit said in 2009, “we have never ruled that all [of an employer’s acts], no matter how trivial, are sufficient to support a retaliation claim.” In fact, the test is “whether the [alleged retaliatory acts] would ‘deter a reasonable person from exercising his . . . First Amendment rights.’” To win on this point, Vigil's lawyer would have to convince the trial court that Vigil was so chicken-shit that shifting him to a less prestigious seat at meetings would scare him out of saying important things for his Office. That's a tough job for his lawyer. I've spent some time with Sheriff Vigil, and even if his attorney thinks he's that timid, I think he has the courage of his convictions.
Defendants' counsel says (in his motion to dismiss) that he's found no case anywhere in which a court found changing someone's place on the dais to be sufficiently adverse to intimidate speech. I looked in Sheriff Vigil's opposition filing, and found no such case cited.
Thus, the dais claim seems inadequate. Also, he continues to be seated at County Commission meetings, with a name placard and a microphone, as are the three other elected officials, the County Assessor, the County Treasurer, and the Probate Judge. (I don't recall where the other three sat before; obviously if they too were “demoted” in dignity, that'd knock hell out of his case; but regardless of that, he's a non-commission elected county official sitting where the other non-commission elected county officials sit.)
The second alleged retaliatory act was the famous investigation. I'm on record that the investigation was a silly waste of time and that some of what Sheriff Vigil has said, such as that all ain't wonderful in the HR Department, I said long before he did. The investigation was wasteful. It did find that the sheriff had contributed to the noxious atmosphere of county government; but that noxious atmosphere preceded the sheriff's election, as two separate juries and several of my columns have said.
That it was a waste of time doesn't necessarily mean we should blame the Commissioners involved. They have repeatedly argued that after a county employee complained, they had no choice but to pass the complaints on to an investigator. (The test of that complaint appears below, near the end of this post.)
If the Commissioners are correct that they were required to authorize the investigation, then Sheriff Vigil can't win damages based on their doing so
However, even if they had full choice in the matter, the Sheriff's legal case runs smack into the legal principles discussed above: was that investigation, as the Supreme Court has put it, conduct that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Was it a sufficient adverse action to intimidate Sheriff Vigil from speaking his mind?
I don't see how it can be. First of all, it sure didn't stop him, but that's a factual matter. Secondly, he'd have to be awfully weak-kneed to let such a thing shut him up. (In fact, he was strong-minded enough to string the investigator along, in a somewhat comical series of emails, and ultimately decline to be interviewed by the investigator. He made the investigator look sort of ineffectual. He didn't appear intimidated. But that's another factual observation.)
What's the law say? “An investigation of potential misconduct . . . will generally not constitute an adverse employment action,” says the 10th Circuit. The court says that's because an investigation has “only speculative consequences.” That is, an investigation might result in damage or adverse consequences to the person investigated; but (as happened here) it might result in nothing but hot air. The fact that the Sheriff questioned the Commission's right to do any such investigation, or take any action based on it, weakens his lawyer's argument here that it was a big deal. Or a “material adverse action.”
In short, the Sheriff's lawyer has a tough row to how persuading a court that either alleged action is sufficiently significant to support a First Amendment / retaliation claim.
Another point, not stressed in the Motion to Dismiss, is that apparently one of the two defendants wasn't even involved in initiating the investigation. The complaint came in. County procedure requires that the Commission Chair and a second commissioner chosen by lot shall look into it and decide whether to have the charge investigated. Here, that two-person committee was Commission Chair Garrett and Commissioner Garcia. Not Commissioner Hancock. That's another potential problem for the Sheriff's trial lawyer.
Was the Alleged First Amendment Right Clearly Established when the Actions Were Taken?
This is the second point the sheriff must prove: that the defendants not only violated a constitutional right, but violated one that had been clearly established by law before defendants did what they did.
We'd all agree that our Sheriff should be permitted to speak freely and publicly about matters of public interest, such as the adequacy or inadequacy of his Office's funding. Except for narrow exceptions such as confidential personnel matters or investigative strategy in a criminal case, where I'd prefer he be discreet, I want Kiki speaking out. Frankly and thoughtfully, and unintimidated. I even agree with some of what he's said about HR, generally, and certain actions by officials in the county administration. I also disagree with some of his assertions, and on some I haven't figured out whether I agree or disagree.
But that ain't the point.
When Kiki says these things about the Sheriff's Office as the Sheriff of Dona Ana County, he's speaking in his official capacity.
The First Amendment protects us citizens from retaliation by governments for speaking our minds.
You'd likely assume that protection extends to government officials, too; or maybe you wouldn't, since they are the government to some degree.
But what matters isn't what you or Kiki or Billy or I may think about that, but what the U.S. Supreme Court has said on the subject.
The Supreme Court has said, in essence, that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In other words, as a general matter, public officials don't have First Amendment protection when speaking in their official capacities.
On first reading, I'd have two questions about whether that statement (from the 2006 case Garcetti v. Ceballos) applies to Sheriff Vigil. He's an elected official, which Garcetti (an assistant D.A.) was not; and the County Commission is not his employer. We employ him – which may or may not make the Commission his employer for this purpose. Garcetti involved a situation where the First Amendment plaintiff worked directly for the public officials accused of the intimidation/retaliation. By contrast, would it apply if the county clerk were somehow intimidated by the State Police or the FBI for statements for or against freedom of marriage? Not necessarily. This case falls somewhere in the middle.
But since that is a question the courts have not yet answered, Kiki loses. He loses because of the rule that the right he's suing over must have been “clearly established by law” at the time of the alleged retaliation/intimidation. Therefore, under Prong 2, he loses even if his material factual allegations are assumed to be correct, as they must be when the trial court looks at this.
The 10th Circuit Court of Appeal, which has jurisdiction over New Mexico federal appeals, has not decided this point. Therefore it's not “clearly established.” Further the Third Circuit specifically held, in a case arising in New Jersey (Werkheiser v. Poconos Township), that an elected official's First Amendment Right when speaking as a public official was “not clearly established.” The 8th Circuit has also expressed doubt that Garcetti applies to speech by elected officials. By contrast, the 5th Circuit has opined that Garcetti would not apply, although Defendants' lawyer argues that that opinion may have little precedential effect because the 5th Circuit ultimately dismissed the case before it as moot. Arguably, the court's action was thus not squarely based on its view that Garcetti would not apply.
[I should note that most of the above is based on the parties' briefs for and against dismissal. I read a couple of the cases mentioned – and on the issue discussed above, the plaintiff''s (sheriff's) brief seemed somewhat weak. I didn't do independent research beyond the two cases.]
What's all this mean for Vigil and for Garrett? Quite possibly that the Sheriff loses. A split in the circuits illustrates the undecided nature of the issue. That split might well be resolved during the next few years by the U.S. Supreme Court – but long after the actions in this case occurred. (If I had to guess which way the Supreme Court will go – which is immaterial to the Sheriff's case against the Commissioners – I wouldn't, but I'd note that the 3rd Circuit, in its decision, cited a list of cases for the proposition that Garcetti would apply to elected officials, stating that there was no real difference of opinion among the circuits.)
However, the 3rd Circuit case also noted: “We pause here to emphasize that we do not today decide whether Garcetti is applicable to elected officials’ speech or not. Rather, we conclude only that the law was not clearly established on this point.”
What does Sheriff Vigil's lawyer say about all this?
He first states that in deciding this sort of motion the court must assume specific factual allegations in the complaint to be true, and let the complaint stand for now if it contains enough material facts to be “plausible on its face.”
Secondly, he argues that since the Motion to Dismiss includes exhibits such as the employee's complaint, the motion must be treated as a Motion for Summary Judgment.
Third, he cites a 10th Circuit case that held that it could not decide the qualified immunity defense raised by state defendants without the benefits of discovery and/or facts. (It isn't immediately clear to me why more discovery would be needed here, and I'm not sure the Sheriff's lawyer really explains that.)
He also argues that 10th Circuit Courts have held that any form of official retaliation for exercising one's freedom of speech, including prosecution, threatened prosecution, bad faith investigation, and legal harassment, constitutes an infringement of that freedom.
Vigil also challenges that the County Code of Conduct is applicable to him as an elected official. However, his brief doesn't even mention Werkheiser and doesn't really address the Garcetti issue very effectively, in my view.
By the way, the Sheriff's lawyer has also sought to file a First Amended Complaint raising eight or ten causes of action against defendants including other county officials and the New Mexico Association of Counties. He did not amend to name Commissioner Garcia, and may intend to dispute that it was Commissioner Garcia, not Commissioner Hancock, who was chosen by lot to respond to the employee complaint.
I have been highly critical of HR and other present or former county officials.
Here, Sheriff Vigil has accused Commissioner Garrett (and also Commissioner Hancock, but Hancock apparently had no involvement) of starting the investigation of Vigil. Garrett has said he was required to initiate the investigation because of an employee's complaint against Vigil. That appears to be true.
In any case, it seems reasonable that interested readers who might be deciding what they think about all this get a look at the complaint in question. Here it is. (The redactions were done by lawyers or city officials. And while I pretty much know whose names were redacted, those are immaterial to anyone's judgment on the issue.)
I initially went over to tell them “good-bye” and that I had resigned my position. [REDACTED] asked why and invited me into his office. [REDACTED] joined us. I told them that this was the most toxic environment I have ever worked in and I wasn't willing to do it anymore. I told them that for months now, elected officials have been allowed to get up in the public meetings and bad mouth HR with no recourse. Not one of the commissioners have asked for concrete proof of the complaints that appropriate action can be taken and if there is no proof for the elected official to stop.
I told them that when I was at District Court on July 16, 2015, for the Stewart trial, I walked out of the restroom and heard the Sheriff telling opposing counsel that "HR !s corrupt"; that he is investigating the department and that he is going to "get rid" of all of us. I told them it Is sad when I have to tell my husband, "If I call and tell you I'm in jail, I'm not kidding." I don't know what that "side" is capable of.
Even though the things that the Sheriff is complaining about, I don't work with; it is still my department. I cannot turn a blind eye to the bullying that he Is allowed to do week after week. It would be different if he could bring proof but to make wild accusations and not be required to back up what he is saying is wrong.
On June 12, a meeting was scheduled with [REDACTED] and one of his employees (that was pregnant), [REDACTED]. [REDACTED], and me. Unbeknownst to any of us, the Sheriff and [REDACTED] walk in with the employee. This was my first face-to-face meeting with the Sheriff. I opened with why we were meeting and before I could say anything else, the Sheriff leaned towards me and with angry aggression (clenched jaw) stated that he fs the elected official and he is going to decide what is going to be done with the employee. The way he leaned forward and reached towards his right side worried me. I have a family member in law enforcement and he explained to me that when law enforcement feel "threatened" or are in a volatile situation, they keep their hand dose to their firearm. I don't know if the Sheriff was armed that day, but I did go to the County Manger after the meeting to let her know that if I ever have to meet with the Sheriff again, I wanted security In the room.
I told them that I was sad that I could not do the last 7 months I needed to vest for retirement, but the stress is affecting my health and I am not sure if I stay 7 more months that I will live to retire.
By reproducing this memo here I'm not adopting or contradicting any or all of the statements made by the now-former employee. (Nor have I fully investigated independently whether or not the Commissioners could have or should have declined to respond by authorizing the investigation, although it appears they had little or no discretion on that. This issue may be immaterial to the lawsuit, if the Motion to Dismiss is upheld.) I'm just giving readers a chance to form their own opinions, undirected by either side's lawyers or by me.
These details are relevant if the legal challenge (that there's qualified immunity and/or that Vigil had no “clearly established” Constitutional right under Garcetti) fails. Then we're into factual debate – and the complaint bears on the obvious argument by Defendant Garrett that he acted because of county regulations, not because he wanted to retaliate against Plaintiff Vigil.