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.
The “Investigation.”
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.)
::::::::::
On September 29, 2015, I met with [REDACTED].
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.
