Petition — Gray v. Van Ooteghem

Supreme Court brief1981

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FILED

JAN 82 198%

NO. _—_

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Supreme Court of the Huited States

OcTOBER TERM, 1980

HARTSELL GRAY, County Treasurer of Harris

County, Texas (Henry E. Kriegel, successor m office),

Petitioner

GARY JOHN VAN OOTEGHEM,

Respondent

PETITION FOR A WRIT OF CERTIORARI

From the Fifth Circuit

MIKE DRISCOLL

County Attorney of

Harris County, Texas

BIL_y E. LEE

Assistant County Attorney

“— ay County Administration

Houston, Texas 77002 |

(713) 221-5101

Attorneys for Petitioner

County Treasurer Hartsell Gray

—————————————————————————————————————— eee

Alpha !.aw Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

‘

QUESTIONS PRESENTED FOR REVIEW

DOES AN EMPLOYEE HAVE A CONSTITU-

TIONAL RIGHT TO MAKE A SPEAKING AP-

PEARANCE BEFORE A GOVERNMENTAL

BODY FOR HIS OWN PERSONAL PURPOSES,

AT THE EMPLOYER’S EXPENSE?

CAN HARRIS COUNTY BE BOUND TO SATIS-

FY THE JUDGMENT AGAINST ITS COUNTY

TREASURY, EVEN THOUGH HARRIS COUN-

TY WAS NOT A PARTY TO THE SUIT?

SUBJECT INDEX

OPINIONS DELIVERED IN COURTS BELOW .......

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QUESTIONS PRESENTED FOR REVIEW ...........

CONSTITUTIONAL AND STATUTORY PROVISIONS

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1) DOES AN EMPLOYEE HAVE A CONSTITU-

TIONAL RIGHT TO MAKE A SPEAKING AP-

PEARANCE BEFORE A GOVERNMENTAL

BODY FOR HIS OWN PERSONAL PURPOSES,

AT THE EMPLOYER’S EXPENSE? ............

2) CAN HARRIS COUNTY BE BOUND TO SATIS-

FY THE JUDGMENT AGAINST ITS COUNTY

TREASURY, EVEN THOUGH HARRIS COUNTY

WAS NOT A PARTY TO THE SUIT? ..........

CERTIFICATE OF SERVICE .........csscccccccccee

APPENDIX A—MEMORANDUM AND ORDER—IN

THE UNITED STATES DISTRICT COURT For The

Southern District Of Texas, Houston Division (March

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APPENDIX B—MEMORANDUM AND ORDER—IN

THE UNITED STATES DISTRICT COURT For The

Southern District Of Texas, Houston Division (September

FG GOT kes Lia viketberce cece bes sethae vawaee sae

APPENDIX C—JUDGMENT—IN THE UNITED

STATES DISTRICT COURT For The Southern District

Of Temas, Houston DIWWiOe 64 ccs cecscvediovcvcccoenss

APPENDIX D—MEMORANDUM AND ORDER—IN

THE UNITED STATES DISTRICT COURT For The

Southern District Of Texas, Houston Division (November

NE hs ii ucaccwhsadui ek ecetuyaiabdiasves

APPENDIX E—OPINION OF THE UNITED STATES

COURT OF APPEALS, Fifth Circuit (Oct. 22, 1980) ..

D-1

E-1l

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LIST O.* AUTHORITIES

CASES Page

Aldinger y. Howard, 427 U.S. 1 (1976) ..............4.. 11

Bee WH Pe, GBF TU, C76 vise ct ce cee we tswsesece’s 14

Kenosha v. Bruno, 412 U.S. 507 (1973) ............00.. 11

Monell v. Department of Social Services of the City of New

York, 436 U.S. 658, decided June 6, 1978 .......... 11, 12, 13, 14

Monroe v. Pape, 365 U.S. 167 (1961) ..............06-. 11

Moor v. County of Alameda, 411 U.S. 693 (1973) ....... 11,12

UNITED STATES STATUTES

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NO.

Supreme Court af the United States

OCTOBER TERM, 1980

HARTSELL GRAY, County Treasurer of Harris

County, Texas (Henry E. Kriegel, successor in office),

Petitioner

Vv.

GARY JOHN VAN OOTEGHEM,

Respondent

PETITION FOR A WRIT OF CERTIORARI

From the Fifth Circuit

OPINIONS DELIVERED IN COURTS BELOW

On March 20, 1978, the District Court filed an un-

reported Memorandum and Order (App. A-1) holding that

petitioner County Treasurer had fired his Assistant Treas-

urer, respondent Van Ooteghem, in violation of his First

Amendment rights, and ordered the County Treasurer

to reinstate his Assistant with back pay.

On September 29, 1978, the District Court filed an

unreported Memorandum and Order (App. B-1) hold-

ing that the judgment in this case must be against the

County Treasurer in his official capacity only, and deny-

°%

ing a motion to reopen the case to receive additional

evidence.

On November 20, 1978, the District Court filed an

unreported Memorandum and Order (App. D-1) over-

ruling the County Treasurer’s motion for stay of judg-

ment, motion for a new trial, and motion for the court

to file findings of fact and conclusions of law, and hold-

ing that Harris County had no Eleventh Amendment

rights that would prohibit satisfying this judgment from

the County funds in the County Treasury.

On October 22, 1980, the Court of Appeals filed an

opinion (App. E-1) reported at 628 F.2d 488 (C.A.,

Sth, 1980). The Court of Appeals affirmed the District

Court, holding that Harris County was bound to satisfy

the judgment against the County Treasurer, even though

the County had not been a party to the suit, and holding

also that Van Ooteghem’s insistence on addressing Com-

missioners Court during working hours was a substantial

factor in his dismissal, that the address was constitution-

ally protected, and that it would not significantly interfere

with the operation of the Treasury nor impede the per-

formance of Van Ooteghem’s daily duties.

JURISDICTION

(i) On September 29, 1978, the District Court filed

and entered its judgment reinstating Van Ooteghem as

Assistant Treasurer, with back pay and attorney’s fees to

be paid from the funds of Harris County in the Treasury

Department budget. (App. C-1)

(ii) On October 22, 1980, the Court of Appeals af-

firmed the judgment of the District Court. (App. E-1)

No rehearing was sought.

(iii) This Court has jurisdiction under the statutory

provision of 28 U.S.C. § 1254(1) to review this case

from the Court of Appeals by writ of certiorari.

QUESTIONS PRESENTED FOR REVIEW

DOES AN EMPLOYEE HAVE A CONSTITU-

TIONAL RIGHT TO MAKE A SPEAKING AP-

PEARANCE BEFORE A GOVERNMENTAL

BODY FOR HIS OWN PERSONAL PURPOSES,

AT THE EMPLOYER’S EXPENSE?

CAN HARRIS COUNTY BE BOUND TO SATIS-

FY THE JUDGMENT AGAINST ITS COUNTY

TREASURY, EVEN THOUGH HARRIS COUN-

TY WAS NOT A PARTY TO THE SUIT?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Plaintiff Van Ooteghem claimed that his First Amend-

ment Rights had been violated in his firing. Article I

amending the Constitution reads:

Congress shall make no law respecting an establish-

ment or religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or of

the press; or the right of the people peaceably to

assemble, and to petition the Government for a re-

dress of grievances.

By the Pretrial Order (R. 093) the parties stipulated

that this case is controlled by 42 U.S.C. § 1983, and its

jurisdictional statute 28 U.S.C. § 1343. (R. 097).

42 U.S.C. § 1983

Every person who, under color of any statute, ordin-

ance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or im-

munities secured by the Constitution and laws, shall

be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for re-

dress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the

District of Columbia.

28 U.S.C. § 1343

(a) The district courts shall have original jurisdic-

tion of any civil action authorized by law to be

commenced by any person:

(1) To recover damages for injury to his person or

property or because of the deprivation of any right

or privilege of a citizen of the United States, by any

act done in furtherance of any conspiracy mentioned

in section 1985 of Title 42;

(2) To recover damages from any person who fails

to prevent or to aid in preventing any wrongs men-

tioned in Section 1985 of Title 42 which he had

knowledge were about to occur and power to pre-

vent;

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or

usage, of any right, privilege or immunity secured

by the Constitution of the United States or by any

Act of Congress providing for equal rights of citizens

or of all persons within the jurisdiction of the United

States;

(4) To recover damages or to secure equitable or

other relief under any Act of Congress providing for

the protection of civil rights, including the right to

vote.

(b) For purposes of this section—

(1) the District of Columbia shall be considered a

State, and

(2) any Act of Congress applicable exclusively to

the District of Columbia shall be considered to be

a statute of the District of Columbia.

Petitioner County Treasurer defends the non-payment

of the judgment to respondent Van Ooteghem with Harris

County funds in his custody, because Harris County was

not a party to this suit. Vernon’s Texas Rules of Civil

Procedure, Rule 33, provides:

Suits by or against a county or incorporated city,

town or village shall be in its corporate name.

STATEMENT OF THE CASE

Petitioner Hartsell Gray was County Treasurer of

Harris County, Texas, by election of the citizens county-

wide, from January 1, 1975, until December 31, 1978.

In mid-January, 1975, he employed an Assistant, respond-

ent Gary John Van Ootegham, who was a Certified Public

Accountant. The Treasury had much work for Van

Ooteghem to do, and he was allowed to work at will so

long as he timely performed his assigned duties. In July,

1975, Van Ooteghem requested and was given a week

of accrued vacation time. At the end of the week he re-

quested and received an additional week of vacation.

Within a day or so after returning to work he told the

County Treasurer that he had been participating in a rally

of homosexuals in Washington, D.C., in support of a

homosexual discharged from the Armed Forces, that he

himself was homosexual, and that he was interviewed by

a national publication and might soon be in print in the

publication. A day or so later he told the County Treas-

urer that he intended to go before Commissioners Court,

the governing body of the Harris County corporate entity,

to ask that body to take affirmative uction for homo-

sexuals in County government. The County Treasurer

attempted to dissuade him, unsuccessfully. The next day

the County Treasurer demanded that his Assistant sign

a letter of acknowledgement that his working hours were

from 8 til 5 Monday through Friday, with the noon hour

for lunch, and that no political activities would be toler-

ated during working hours. (R. 040). Van Ooteghem

refused to sign the letter of acknowledgement. The letter

stated that a refusal to sign would be considered a nega-

tive reply, and that a breach of the provisions of the letter

would be met with disciplinary action or dismissal. The

letter is also in the Record as Plaintiffs Exhibit 1 ap-

pended to the deposition of Hartsell Gray. Later that

same day, the County Treasurer discharged his Assistant

(Record—Plaintiff's Exhibit 2 appended to the deposition

of Hartsell Gray). The letter of discharge reads:

July 31, 1975

Mr. Gary J. Van Ooteghem

Your refusal to comply with the instructions set out

in my letter of this date, a copy of which is attached

hereto and incorporated herein by reference for ali

purposes, has resulted in the following action by me:

1) You are hereby fully and finally discharged from

employment in the office of the County Treasury of

Harris County, Texas, effective immediately.

2) You will forthwith remove all your personal be-

longings, and no others, from your office and vacate

the premises.

Regretfully,

/s/ HARTSELL GRAY

Harris County Treasurer

The day following his discharge as Assistant Treasurer,

Van Ooteghem did appear before and address Commis-

sioners Court. His presentation is summarized in plaintiff's

Post Submission Memorandum of Law (R. 078). He con-

cluded his remarks by saying that his time had come to

stand up and defend the rights of homosexuals. Later in

the month he instituted this suit.

BASIS FOR FEDERAL JURISDICTION

IN TRIAL COURT

By the Pretrial Order (R. 093) the parties stipulated

to the District Court that this case is controlled by 42

U.S.C. § 1983, and its jurisdictional statute 28 U.S.C.

§ 1343 (R. 097).

ARGUMENT

1) DOES AN EMPLOYEE HAVE A CONSTITU-

TIONAL RIGHT TO MAKE A SPEAKING AP-

PEARANCE BEFORE A GOVERNMENTAL BODY

FOR HIS OWN PERSONAL PURPOSES, AT THE

EMPLOYER’S EXPENSE?

This case does not present a situation of censorship

on speech. The only element involved is that of the

employer to fix the hours and place of work for the

’*

employee, and to discharge an employee who will not

comply with such hours and place of work. At Page 49,

line 13 of his deposition Hartsell Gray testified:

3°

{

The District Court prefaced that statement by saying:

To contend that the Plaintiff was fired solely for

his refusal to comply with such hours is unrealistic.

What is unrealistic about an employer demanding that

an employee do his work during the period for which

he is being paid? Even a public employee being paid

with public funds. If the County Treasurer doesn’t de

mand that one Assistant Treasurer take vacation time

to work on his own personal affairs, but pays him public

will be discriminating against all his other Assistants who

have their own individual axes to whet—preferably at

public expense. That, of course, is the preference of the

employee, not the employer. If the employer gives up

his prerogative of requiring his employees to work while

they are being paid to work, then he will be faced with

the prospect of paying other employees to work while

from the Treasurer fixing his work hours to prevent him

and was then terminated at the end of the same business

day. That is the only fact pleaded as to the reason for

the discharge. (R. 004). The deposition of the County

Treasu7*1 was before the District Court, and the un-

disputed testimony therein (and quoted above) discloses

that Van Ooteghem did not make a request for vacation

leave, or time off without pay, to go on his speech-making

crusade to Commissioners Court, because such request

would have been honored and would not have resulted

in ‘the discharge. Also before the Court is the Pretrial

Order (R. 093) with certain Admissions of Fact by

both parties. Admission 6 (R. 096) stipulates that there

were no other statements or actions than Van Ooteghem’s

intent to speak before the County Commissioner’s Court

on civii rights of homosexuals that were a causal factor

in the County Treasurer’s decision to termim * Van

Qoteghem. This is not a stipulation that he ..as fired

because of his intent to speak out. The stipulation must

be considered in the light of Admission 8 (R. 096) that

Van Ooteghem refused to sign the letter acknowledging

his assigned working hours and place of work and was

then terminated by the County Treasurer that same date.

The only evidence before the Court discloses that the

County Treasurer fired the Assistant Treasurer because

of his refusal to work the assigned hours of 8 til 5 at

his assigned work area. No evidence exists that there was

any other motive for the discharge. Van Ooteghem has

not met his burden of coming forward with proof or

even any evidence that he was fired on the mere pretext

of refusing to acknowledge working hours and place.

There is no evidence that Van Ooteghem requested vaca-

tion time to go speak to Commissioners Court. If the

Court disbelieved all the testimony of the County Treas-

urer to the effect that he fired his Assistant Treasurer

because he would not permit an employee to engage in

his own individual political activities while being paid

to work at his assigned area, and the Assistant insisted

on using his employer’s time—with pay—to go about his

own personal business affairs, then the Court is left with

no evidence as to the reasons for the discharge. With

no evidence before it, judgment should be for the em-

ployer County Treasurer, as the employee Assistant has

the burden to prove his firing was unlawful and has not

met that burden.

2) CAN HARRIS COUNTY BE BOUND TO SATIS-

FY THE JUDGMENT AGAINST ITS COUNTY

TREASURY, EVEN THOUGH HARRIS COUNTY

WAS NOT A PARTY TO THE SUIT?

The District Court handed down its original Memo-

randum and Order in this cause on March 20, 1978.

With all the dignity of the Supreme Court behind the

cases Of Monroe v. Pape, 365 U.S. 167 (1961); Moor

v. County of Alameda, 411 U.S. 693 (1973); Kenosha

v. Bruno, 412 U.S. 507 (1973); and Aldinger v. Howard,

427 US. 1 (1976), plaintiff Van Ooteghem well knew

the law that he could not sue Harris County under the

Civil Rights Act—and he didn’t sue Harris County. Some

six weeks after the Memorandum and Order on March

20, 1978, this Supreme Court wiped out the long stand-

ing body of law protecting local governmental bodies

when it decided Monell v. Department of Social Services

of the City of New York, 436 U.S. 658, decided June 6,

1978.

In Monell, the City of New York was named as one of the

defendants. 436 U.S. at 661. This Court said that “Local

governing bodies, therefore, can be sued directly under

§ 1983 for monetary, declaratory, or injunctive relief

where, as here, the action that is alleged to be unconstitu-

tional implements or executes a policy statement, ordi-

nance, regulation, or decision officially adopted and pro-

mulgated by that body’s officers.” 436 U.S. at 690.

“Congress did not intend municipalities to be held liable

unless action pursuant to official municipal policy of some

nature caused a constitutional tort.” 436 U.S. at 691.

“. . . (L)ocal governments, like every other § 1983

‘person’, by the very terms of the statute, may be sued

for constitutional deprivations visited pursuant to govern-

mental ‘custom’ even though such a custom has not re-

ceived formal approval through the body’s official deci-

sionmaking channels.” 436 U.S. at 690-691.

Harris County cannot quarrel with the fact that it is

a “person” under the Civil Rights Act and subject to

suit—since Monell. However, under the law AS IT EX-

ISTED when this case was filed, when both sides stipu-

lated the facts, and when the District Court decided the

case on March 20, 1978, Harris County was immune

to the suit and was not sued by the plaintiff Assistant

Treasurer, nor was judgment rendered against Harris

County by the District Court when it first decided the

case on March 20, 1978. Relying on Moor v. Alameda

County, then flying as the law of the land, Harris County

did not intervene in trial to defend its immunity. It is a

foolish person who flees when no one pursues. Had

Harris County been a party to the suit, or had Monell

been decided prior to the submission on stipulations of

this case, this case assuredly would have been tried differ-

ently in the District Court. Under its cloak of immunity

to Civil Rights Act suits, Harris County was under no

duty to intervene and defend itself in the suit brought

by the fired Assistant Treasurer against his Treasurer

employer. Harris County still enjoyed that immunity

when the case was submitted on stipulations, and when

it was tried and decided on March 20, 1978. The “deep

pocket” of Harris County did not become an issue in

this case until after the decision of Monell on June 6,

1978. By its Memorandum and Order of September 29,

1978, and November 20, 1978, the District Court made

an ex post facto application of Monell to Harris County

to bear the brunt of the penalty for the Treasurer termi-

nating his Assistant, an act for which the County was

immune under the Moor decision at the time of the firing,

at the time this suit was instituted, at the time it was

tried, and at the time it was decided on March 20, 1978.

This ex post facto application, without also giving Harris

County an opportunity to defend itself, is a denial of

due process. If Harris County is a “person” subject to

the payment of thousands of dollars under the Civil

Rights Act, how can any one doubt that it is also a

“person” entitled to due process of law under the Fifth

and Fourteenth Amendments? The County Treasurer is

ordered by the judgment to turn over to the discharged

employee thousands of dollars of money he holds as the

“cash register” of Harris County. It differs no iota from

the cashier of First National Bank being ordered to pay

a judgment against him from the funds of his depositors.

In Monell, the City of New York was actually sued

as a defendant and was before the Supreme Court when

the case was tried. Also, at issue therein was the official

policies of the City being executed by the employees of

the City. In Hutto v. Finney, 437 U.S. 678, decided a

coupie weeks after Monell, the named defendants were

state officials carrying out state policies. Here, the County

Treasurer is independently elected by the voters of the

County. He runs his office according to state statutes,

not to further any County policy. There is no evidence -

before the Court authorizing a judgment against the

County money as a penalty against the taxpayers of the

County for the bad faith of the County Treasurer in

demanding that his Assistant work during his time he

was being paid and leave personal politicking to his

off-duty time.

WHEREFORE, petitioner County Treasurer Hartsell

Gray prays the Court to reverse the Court of Appeals and

District Court with directions to dismiss this suit for

failure to state a cause of action on which relief can be

granted.

Respectfully submitted,

MIKE DRISCOLL

County Attorney of

H rris County, Texas

Assistant County Attorney

634 Harris County Administration

Bldg.

Houston, Texas 77002

(713) 221-5101

Attorneys for Petitioner

County Treasurer Hartsell Gray

CERTIFICATE OF SERVICE

This is to certify that on this 2. O day of January,

1981, I placed in the United States Mail Service with

proper postage prepaid copies of the Petition for Writ

of Certiorari in the subject suit, addressed to counsel of

record for respondent Gary John Van Ooteghem.

Mr. J. Patrick Wiseman

3303 Main Street, Suite 300

Houston, Texas 77002

Mr. Larry Sauer

4803 Montrose, Suite 11

Houston, Texas 77006

Assistant@Zounty Attorney

NO.

Supreme Court of the United States

OCTOBER TERM, 1980

HARTSELL GRAY, County Treasurer of Harris

County, Texas (Henry E. Kriegel, successor in office),

Petitioner

Vv.

GARY JOHN VAN OOTEGHEM,

Respondent

APPENDIX

MIKE DRISCOLL

County Attorney of

Harris County, Texas

BILLy E. LEE

Assistant County Attorney

634 Harris County Administration

Bldg.

Houston, Texas 77002

(713) 221-5101

Attorneys for Petitioner

County Treasurer Hartsell Gray

A-1

APPENDIX A

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 75-H-1501

JOHN VAN OOTEGHEM

HARTSELL GRAY, ET AL

Larry Sauer, Houston, Texas, attorney for

Plaintiff.

Billy E. Lee, Assistant County Attorney,

Houston, Texas, attorney tor Defendants.

March 20, 1978

MEMORANDUM AND ORDER

This case is before the court for decision upon stipu-

lated facts. Plaintiff, John Van Ooteghem, was hired by

Defendant, Hartsell Gray (Gray), the Treasurer of Harris

County, Texas, as an accountant on January 13, 1975.

Approximately six months later on July 28, 1975, Gray

was informed by Plaintiff that he was a homosexual. The

next day, July 29, 1975, Plaintiff told Gray that he

intended to go before the Harris County Commissioners

Court during their regular public grievance forum to

A-2

advocate the recognition of the civil rights of homo-

sexuals. On July 31, 1975, the Plaintiff was asked to

sign a letter which required him to be in the office from

8:00 to 12:00 A.M. and 1:00 to 5:00 P.M., and to

restrict his political activities to his own time. Plaintiff

refused to sign this letter. Later the same day the Plain-

tiff was given another letter stating that he was discharged

for his refusal to acknowledge the first letter. The next

day the Plaintiff went before the Commissioners Court

and made a presentation advocating the civil rights of

minorities and homosexuals. |

The question before the court is whether the Plaintiff’s

discharge violated his constitutional rights, particularly

his First Amendment right of free speech. The state has

a legitimate interest in the activities of its employees ©

and First Amendment rights of such employees may be

curbed in the interest of the state as an employer. How-

ever, such rights may not be denied altogether. These

conflicting interests have, not unsurprisingly, resulted in

a balancing test, as stated in Pickering v. Board of Edu-

cation, 391 U.S. 563 at 568, 88 S.Ct. 1731 at 1735

(1968):

“At the same time it cannot be gainsaid that the

State has interests as an employer in regulating the

speech of its employees that differ significantly from

those it possesses in connection with regulation of

the speech of the citizenry in general. The problem

in any case is to arrive at a balance between the

interests of the teacher, as a citizen, in comment-

ing upon matters of public concern and the interest

of the State, as an employer, in promoting the

efficiency of the public services it performs through

its employees.”

A-3

The efficient running of a public office and maintain-

ing public confidence in that office are concerns that

may limit the exercise of First Amendment rights. In

regard to the rights of homosexuals, it has been held that

a state may discharge an employee for an immodest

flaunting of his homosexuality. McConnell v. Anderson,

451 F.2d 198 (8th Cir. 1971), cert. den. 405 U.S. 1046

(1972); Singer v. United States Civil Service Comm’n,

530 F.2d 247 (9th Cir. 1976), vacated and remanded

429 U.S. 1034 (1977). However, where no improper

conduct, such as applying for a marriage license with

a person of the same sex, kissing a person of the same

sex in public, or participating in homosexual demonstra-

tions, has occurred and where the individual has not

purposely sought out notoriety, a discharge for a per-

son’s advocacy of homosexual rights is unconstitutional.

Aumiller v. University of Delaware, 434 F.Supp. 1273

(D.Del. 1977).

The Plaintiff in this case had no tenure, and by statute

could be terminated at the pleasure of the County Trea-

surer. Tex. Rev. Civ. Stat. Ann. art. 2372(h)(1). How-

ever, such a statute cannot legitimize a discharge for

the exercise of protected constitutional rights. Perry v.

Sinderman, 408 U.S. 593, 92 S.Ct. 2513 (1972); Garza

v. Rodriguez, 559 F.2d 259 (Sth Cir. 1977). Once a

plaintiff has shown that his conduct was constitutionally

protected and was a motivating factor in the employer’s

decision to termniate him, it becomes the employer’s

burden to demonstrate by a preponderance of the evi-

dence that he would have discharged the plaintiff even

in the absence of the protected conduct. Mt. Healthy City

School District v. Doyle, 429 U.S. 274, 97 S.Ct. 568

(1977). Therefore this court must determine what par-

A-4

ticular conduct prompted the Plaintiff’s discharge, whether

such conduct was constitutionally protected, and, if so,

whether there was a collateral justification for the termi-

nation. |

Prior to the critical three days in July, it is evident

that the Plaintiff maintained his own working hours.

(Gray Dep. 15). The Plaintiff was working well over

40 hours a week in a professional capacity (Gray Dep.

10). Although it appears that the Plaintiff was formally

required to ask for leave off from work, such leave was

freely given. (Gray Dep. 15, 72). The Plaintiff was doing

an excellent job, and was termed by Gray, his direct em-

ployer, as a “brilliant accountant”. (Gray Dep. 60, 64).

Gray had personally interviewed the Plaintiff, and had

at that point suspected his homosexuality. (Gray Dep. 7).

However, it was the policy of the Treasury to hire min-

orities, and in fact there were other suspected homo-

sexuals working in the office who had not incurred the

open displeasure of other employees. (Gray Dep. 40-41).

Gray himself has stated that it was the Plaintiff's intent

to address the Commissioners Court that precipitated

his discharge. (Gray Dep. 46).

This court finds that the Plaintiff's conduct in advising

his employer that he intended to speak at the Commis-

sioners Court was constitutionally protected. It is clear

that the letter restricting the Plaintiff's working hours

was the first time that strict hours had been imposed

on the Plaintiff. (Gray Dep. 54, 56). Prior to that the

Plaintiff had worked his own long hours, and had been

given vacation time at will. His temporary absence to

address the Commissioners Court could not have sub-

stantially impeded the functioning of the Treasury. The

A-5

Plaintiff had been performing his job well, the only dis-

ruption occurring during the three days of Plaintiff's dis-

closure and discharge. Such disruption was as much

Gray’s fault for imposing strict hours as the Plaintiff's.

Although Gray contends that the Plaintiff was fired for

his refusal to accept the strict working hours, it is obvi-

ous that the imposition of such working hours was aimed

at preventing the Plaintiff from addressing the Commis-

sioners Court. Such public advocacy of civil rights is

constitutionally protected. Gray’s argument that Plain-

tiff’s presentation on homosexuality to the Commissioners

Court during regular working hours would prejudice the

public confidence in the State Treasury does not rise to

a level that merits restricting First Amendment rights.

Plaintiff addressed the court as a private individual. His

employment and the timing of his speech cannot alone

attribute his views to those of his public office. See

Aumiller v. University of Delaware, supra, at 1295-96.

Finally, the record is devoid of any collateral justification

for the Plaintiff's discharge. The Plaintiff was performing

well and there was no evidence to indicate that his job

performance would have suffered in the future. Gray had

testified that he suspected the Plaintiff’s homosexuality

when he hired him and that other possible homosexuals

were working without incident in the office. Therefore

the very fact of Plaintiff’s homosexuality cannot justify

a discharge on the basis of impeding office routine. It is

the conclusion of this court that the Plaintiff was termi-

nated because he planned to address the Commissioners

Court on homosexual rights. Time restrictions were im-

posed on the Plaintiff for the first time when he informed

Gray of his intentions. These time restrictions were ob-

viously aimed at preventing the Plaintiff from making

A-6

his public speech. To contend that the Plaintiff was fired

solely for his refusal to comply with such Lours is un-

realistic. Had the Plaintiff requested time off from such

bours to tend to personal affairs, it is doubtless that he

would have obtained it. The abrupt imposition of strict

working hours on a professional cannot be used as .a

weapon to prevent him from exercising his First Amend-

ment rights. Plaintiff shall be reinstated and granted back

pay, however it does not appear to this court that com-

pensatory and punitive damages are merited. Therefore

it is

ORDERED that Plaintiff's motion for summary judg-

ment is GRANTED, Plaintiff to be reinstated and granted

back pay.

Counsel are directed to prepare a proper form of

judgment. If agreement cannot be reached, a hearing

will be set to settle the form of judgment and the amount

of back pay which would be allowed.

DONE at Houston, Texas, this 20th day of March,

1978.

/s/ ROSS N. STERLING

United States District Judge

B-1

APPENDIX B

IN THE

UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 75-H-1501

GARY JOHN VAN OOTEGHEM

HARTSELL GRAY, INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY AS TREASURER

OF HARRIS COUNTY, TEXAS

Pape & Mallett (J. Patrick Wiseman), Houston,

Texas, and Larry Sauer, Houston, Texas, attor-

neys for Plaintiff.

Billy E. Lee, Assistant County Attorney, and

Friloux, Smith & Abney (C. Anthony Friloux),

Houston, Texas, attorneys for Defendant.

MEMORANDUM AND ORDER

Presently pending before the court is the Defendant

Hartseil Gray’s application for leave to file motion to set

aside judgment and reopen evidence. This motion is an

effort to set aside the order of this court entered on March

B-2

20, 1978, on the basis that Gray did not agree with nor

authorize the stipulation entered into by his counsel upon

which the order of the court was based. Counsel for both

patties were before the court on November 18, 1977, on

which date they submitted this case for decision on stipu-

lations. The stipulated facts were put into written form

im an agreed pretrial order filed on January 16, 1978.

This court considered such stipulated facts and on March

20, 1978, entered an order finding that Plaintiff had been

unconstitutionally discharged and that he was entitled to

reinstatement and back pay. On July 25, 1978, in a

hearing on a motion for entry of judgment based on the

order entered by the court on March 20, 1978, the court

noted a conflict of interest between the County -Attorney’s

representation of Hartsell Gray as County Treasurer and

Hartsell Gray as an individual. Since then, Hartsell Gray

has obtained separate counsel to represent him as an

individual, in the yet pending question as to Hartsell

Gray’s individual liability for the back pay.

Hartsell Gray contends that his counsel’s conflict of

interest prejudiced his case to the effect that the County

Attorney did not probe evidentiary matters to Hartsell

Gray’s individual best interest. Moreover, Hartsell Gray

contends that he never agreed to nor authorized the stipu-

lations upon which the case was tried. The court is not

persuaded by such contentions.

The facts which Hartsell Gray offers to introduce, if

this court should reopen the evidence, do not amount to

new evidence which Gray could have only recently dis-

covered. These facts, which were not incorporated into

the stipulations, involve the conduct of the Plaintiff in

the Treasurer's office, and his relationships with other

B-3

Treasury employees. Such evidence was available to

Gray’s counsel prior to this time, and is not such latent

evidence that has only now been discovered.

Addressing Gray’s allegation that his attorney’s con-

flict of interest prejudiced him in his selection of stipula-

tions, the court notes that there arose no conflict of

interest at the stage of his litigation when the constitu-

tional question was determined. The conflict arose only

after the court found a constitutional violation and a

liability for back pay. Once a finding of liability for back

pay had been made, a conflict arose as to Hartsell Gray’s

individual liability for such back pay as opposed to the

liability of the office of the County Treasurer. Prior to

the back pay determination, both Hartsell Gray indivi-

dually and Hartsell Gray as County Treasurer maintained

the same position asserting that Plaintiff was discharged

for good cause.

This court will adhere to the stipulations voluntarily

agreed to by counsel for both parties. It matters not that

Hartsell Gray’s new individual counsel disagrees with

prior counsel’s stipulations and tactics. As stated in King

v. Edward Hines Lumber Company, 68 F.Supp. 1019

(D. Ore. 1946):

“Counsel for plaintiff, who have been employed

since the trial, and who know nothing except by

hearsay as to what happened in the courtroom, out-

side of the written record, seek now to repudiate the

admissions made in the pretrial conference, in the

pretrial order and at the trial... .

“An admission by counsel in open court made

part of the judicial record and used as a foundation

for a judgment is the most solemn and binding act.

B-4

No matter what the circumstances were the fact ad-

mitted of record binds the parties and the privies.

No matter what the legal rights of the client were,

the attorney in a civil case can destroy them all by

admissions made in the record. Otherwise, we turn

our face against the whole course of history as to

judicial proceedings exemplified by the common

recoveries of the early common law which were

founded upon the solemn admissions of facts which

before their entry were fictitious. In modern times

the consent decree of the court is given absolute

effect.” 68 F.Supp. 1019 at 1020, 1021 cited in 3

MOORE’S FEDERAL PRACTICE, 4 16.20, p.

1138.

It is the opinion of this court that the stipulations entered

into by counsel for both parties are binding upon them.

If this were not the case, a party could easily stipulate to

facts, take his chances upon a finding by the court, and

upon a disappointing judgment seek new counsel and a

withdrawal of stipulations. Therefore it is

ORDERED that Hartsell’s Gray’s motion to set aside

the order of March 20, 1978, and to allow a reopening

of the evidence is hereby DENIED.

The court further finds that the judgment in this case

must be against Gray in his official capacity only. A

judgment to this effect is entered with this Memorandum

and Order.

DONE at Houston, Texas, this 29th day of September,

1978.

/s/ ROSS N. STERLING

United States District Judge

C-1

APPENDIX C

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 75-H-1501

GARY JOHN VAN OOTEGHEM

HARTSELL GRAY, INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY AS TREASURER

OF HARRIS COUNTY, TEXAS

JUDGMENT

This action came on for trial before the Court sitting

without a jury upon stipulated facts and upon considera-

tion of the stipulations, the deposition and exhibits, and

the entire record herein, the Court having concluded

that Plaintiff is entitled to judgment in this action, in

accordance with the memorandum opinion filed herein

on March 20, 1978, it is

ORDERED, ADJUDGED and DECREED:

1. That Defendant, his agents, successors and assigns,

and all those having actual notice of this judgment be,

and the same hereby are, enjoined from denying Plaintiff

his lawful employment to prevent him from exercising

his First Amendment rights and Plaintiff shall be, and

C-2

is hereby reinstated to his position as Assistant County

Treasurer.

2. That the Defendant, his agents, successors and

assigns, and all those having actual notice of this judg-

ment be and the same hereby are, enjoined from with-

holding Plaintiff's back pay in the amount of $56,046.92,

calculated in the following manner, $70,954.55 total

back pay, offset by Plaintiff's personal earnings during

said period in the amount of $14,907.63. Interest is to

run upon the aggregate at the legal rate from March

20, 1978 until satisfied. Said sura is to be paid by the

Defendant in his official capacity from the Departmental

Budget of the County Treasurer’s Office.

3. That the judgment herein be, and the same hereby

is, entered for Plaintiff in accordance with the preceding

paragraphs; and

4. That Plaintiff recover of the Defendant in his

official capacity, to be paid from the Departmental Budget

of the County Treasurer’s Office, his taxable costs in-

cluding reasonable attorney’s fees which the court finds

to be $7,500.00.

DONE at Houston, Texas, this 29th day of September,

1978.

/s/ ROSS N. STERLING

United States District Judge

D-1

APPENDIX D

IN THE

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 75-H-1501

GARY JOHN VAN OOTEGHEM

HARTSELL GRAY, INDIVIDUALLY AND IN

HIS OFFICIAL CAPACITY AS TREASURER

OF HARRIS COUNTY, TEXAS

Larry Sauer, Houston, Texas, and Pape &

Mallett (J. Patrick Wiseman), Houston,

Texas, attorneys for Plaintiff.

Billy E. Lee, Assistant County Attorney,

and C, Anthony Friloux, Houston, Texas,

attorneys for Defendant.

November 20, 1978

MEMORANDUM AND ORDER

Plaintiff brought this suit pursuant to 42 U.S.C. § 1983

against Hartsell Gray, individually and in his official

capacity as treasurer of Harris County, Texas, to redress

the deprivation of his First Amendment rights. This court

D-2

found that Plaintiff was wrongfully discharged for con-

duct which was protected by the First Amendment of the

Constitution, and ordered that Plaintiff be reinstated and

granted back pay. (Memorandum and Order March 20,

1978.) Judgment was entered granting Plaintiff back pay

in the amount of $56,046.92 and attorney’s fees in the

amount of $7,500.00 to be paid by Hartsell Gray in his

Official capacity from the Departmental Budget of the

County Treasurer’s Office. Hartsell Gray in his official

capacity as County Tieasurer (hereinafter referred to as

Defendant) has now filed the following post-judgment

motions: motion for the court to file findings of fact and

conclusions of law, motion for stay of judgment, and

motion for a new trial.

Defendant’s motion for this court to file findings of fact

and conclusions of law is denied. The 1946 amendment

to Fed. R. Civ. P. 52(a) clearly indicates that an opinion

or memorandum of decision by the court will suffice as

findings of fact and conclusions of law. Wynn Oil Co. v.

Purolator Chemical Corp., 536 F.2d 84 (Sth Cir. 1976);

McRea v. Harris County Houston Ship Channel Nav. Dist.,

423 F.2d 605 (5th Cir. 1970). This court entered thorough

memorandum opinions on March 20, 1978, and on

August 9, 1978. Such opinions sufficiently meet the re-

quirements of Fed. R. Civ. P. 52(a).

Defendant’s motion for stay of judgment is denied.

Defendant asserts that he lacks legal authority or capacity

to pay the judgment from the County Treasury, and that

it would be wrongful to reinstate the Plaintiff because a

qualified successor has already been placed in his position.

The court believes there is little likelihood of success on

Defendant’s attacks against either the money judgment

D-3

or the reinstatement order. Therefore the motion for stay

is denied. Pitcher v. Laird, 415 F.2d 743, 744 (Sth

Cir. 1969).

Defendant in his motion for new trial alleges four

points of error, as follows:

“(1) There is no evidence in the record that

plaintiff was terminated by defendant for any other

reason than for his refusal to abide by the working

hours and place prescribed by defendant employer;

“(2) There is no evidence in the record that de-

fendant is legally able to pay to plaintiff any amount

of money from the Departmental Budget of the

County Treasurer’s Office;

“(3) There is no evidence in the record concern-

ing plaintiff's attorney’s fees;

“(4) There is no evidence in the record to sup-

port any of the Court’s salient findings issued on

March 20, 1978, and September 29, 1978, said find-

ings forming the basis of the Judgment herein.”

The court dismisses the no evidence points summarily,

based upon the record. There is sufficient evidence to

support the reasonableness of a $7,500.00 attorney’s fees

award to the Plaintiff. The court, from its knowledge of

the case and other pertinent factors for the determination

of a reasonable attorney’s fee finds that the previous

award is reasonable and proper. Therefore the court will

sustain its prior award of $7,500.00 attorney’s fees,

granted pursuant to 42 U.S.C. § 1988. It is clear that

there is no Eleventh Amendment bar to such an award

of attorney’s fees in civil rights cases. Bond v. Stanton,

555 F.2d 172 (7th Cir. 1977).

D-4

Defendant’s most substantial contention looks to the

Defendant’s capacity as a County Treasurer to pay a

money judgment from the Departmental Budget of the

County Treasurer’s Office. Although not couched in such

terms, the court finds this to be an Eleventh Amendment

issue questioning the enforceability of a money judgment

against the county.

The United States Supreme Court in Monell v. Dept.

of Soc. Serv. of City of N.Y., U.S , 98 S.Ct.

2018 (1978), recently reversed Monroe v. Pape, 365

U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and

held that municipalities and other local government units

could be sued as “persons” under 42 U.S.C. § 1983. The

court stated:

“Our analysis of the legislative history of the Civil

Rights Act of 1871 compels the conclusion that

Congress did intend municipalities and other local

government units to be included among those persons

to whom § 1983 applies. Local governing bodies,

therefore, can be sued directly under § 1983 for

monetary, declaratory, or injunctive relief where, as

here, the action that is alleged to be unconstitutional

implements or executes a policy statement, ordin-

ance, regulation, or decision officially adopted and

promulgated by that body’s officers.”

There can be no doubt that Defendant Hartsell Gray

was acting in an official capacity when he discharged the

Plaintiff. Hartsell Gray was acting as the County Treas-

urer when he discharged the Plaintiff, such decision need-

ing no further approval to become effective. Therefore

an Official act of a governing body which deprived Plain-

tiff of his constitutional rights is quite evident in this

case. The focus must then turn to the nature of the

D-5

governing body. Monell pried the protection against

§ 1983 suits away from “municipalities and other local

government units.” In footnote 54, p. 2035-2036, the

court stated:

“Our holding today is, of course, limited to local

government units which are not considered part of

the State for Eleventh Amendment purposes.”

Moreover in footnote 55, p. 2036, the court further

excluded Eleventh Amendment considerations from its

holding of liability:

“Since official capacity suits generally represent

only another way of pleading an action against an

entity of which an officer is an agent—at least where

Eleventh Amendment considerations do not control

analysis—our holding today that local governments

can be sued under § 1983 necessarily decides that

local government officials sued in their official capac-

ities are ‘persons’ under § 1983 in those cases in

which, as here, a local government would be suable

in its own name.”

Hartsell Gray was sued in his official capacity as

County Treasurer of Harris County, Texas, Monell,

supra, approves of such a suit against an official repre-

sentative as a proper § 1983 action where the Eleventh

Amendment would not preclude a suit against the govern-

mental unit itself. The issue thus becomes whether a suit

for money damages, in this case back pay, against the

County Treasurer’s Office or the County itself, is barred

by the Eleventh Amendment. The key case defining the

ambits of the Eleventh Amendment is Edelman v. Jordan,

415 U.S. 651, 94 S.Ct. 1347 (1974), where the general

rule of immunity was stated:

D-6

“Thus the rule has evolved that a suit by private

parties seeking to impose a liability which must be

paid from public funds in the state treasury is barred

by the Eleventh Amendment.” 415 U.S. at 653, 94

S.Ct. at 1356.

In footnote 12 of Edelman, the Supreme Court dich-

otomized a county defendant’s Eleventh Amendment and

Fourteenth /:mendment vulnerabilities:

“The Court of Appeals considered the Court’s

decision in Griffin v. School Board, 377 U.S. 218,

84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), to be of

like import. But as may be seen from Griffin’s cita-

tion of Lincoln County v. Luning, 133 U.S. 529,

10 S.Ct. 363, 33 L.Ed. 766 (1890), a county does

not occupy the same position as a State for purposes

of the Eleventh Amendment. See also Moor v.

County of Alameda, 411 U.S. 693, 93 S.Ct. 1785,

36 L.Ed.2d 596 (1973). The fact that the county

policies executed by the county officials in Griffin

were subject to the commands of the Fourteenth

Amendment, but the county was not able to invoke

the protection of the Eleventh Amendment is no

more than a recognition of the long-established rule

that while county action is generally state action for

purposes of the Fourteenth Amendment, a county

defendant is not necessarily a state defendant for

purposes of the Eleventh Amendment.”

It, therefore, appears that a suit against a county does

not raise Eleventh Amendment considerations. A county

is essentially a local governing unit with local rather than

statewide constituents, local rather than state officials,

local rather than state taxes, and local rather than state

treasury funds. The judgment in this case would be satis-

fied from the county treasury which funds constitute a

D-7

totally separate entity from Texas state treasury monies.

There is no connection between Harris County and the

state of Texas which would make the state of Texas the

real party in interest in this case.

Having hurdled the Eleventh Amendment obstacle,

Plaintiff must next show that the county is a “person”

amenable to suit under the civil rights statute, 42 U.S.C.

§ 1983. The Supreme Court in Moor v. County of Ala-

meda, 411 U.S. 693, 93 S.Ct. 1785 (1973), had before

it a suit similar to the case at bar in that the Plaintiff

had sued a county among other defendants for money

damages. The Court, relying solely on the legislative

history of 42 U.S.C. § 1983 and its decision in Monroe

v. Pape, supra, held that since municipalities were not

persons for § 1983 purposes, a § 1983 suit for money

damages was not available to the Plaintiffs against the

county. However, the Court in Monell, after reconsider-

ing the legislative history of 42 U.S.C. § 1983, has re-

versed Monroe. There is therefore no reason for the Moor

decision, denying the right to sue a county under § 1983

for money damages, stand as precedent.

The court in Monell would not speculate as to what

the proper result should have been on the facts in Moor.

However, the court recognized that Moor had incorrectly

construed § 1983 by relying on Monroe and barring suit

against the county. The court stated in footnote 66, p.

2041:

“No useful purpose would be served by an attempt

at this late date te determine whether Monroe was

correct on its facts. Similarly, since this case clearly

involves official policy and does not involve respond-

eat superior, we do not assay a view on how our

D-8

cases which have relied on that aspect of Monroe

that is overruled today—Moor v. Alameda, supra,

n.9, City of Kenosha v. Bruno, supra, n.9, and AIl-

dinger v. Howard, supra, n.63—should have been

decided on a correct view of § 1983.”

It is clear then that Monell repudiates Moor’s reliance

on Monroe and its bar against suits aimed at local govern-

ments. Monell seeks to correct Monroe’s restrictive con-

struction of § 1983, and thus the ruling in Moor that a

§ 1983 suit against a county is barred, cannot stand.

This court concludes that Plaintiff's suit against the De-

fendant in his official capacity as County Treasurer states

a proper claim against a “person” pursuant to 42 U.S.C.

§ 1983, and that such claims for back pay are not barred

by the Eleventh Amendment. It is

ORDERED that Defendant’s motion for stay of judg-

ment, motion for a new trial, and motion for the court

to file findings of fact and conclusions of law are denied.

DONE at Houston, Texas, this 20th day of November,

1978.

/s/ ROSS N. STERLING

United States District Judge

E-1

APPENDIX E

Gary John VAN OOTEGHEM, Piaintiff-Appellee

Cross-Appellant,

Vv.

Hartsell GRAY, Individually and in his cacacity as

Treasurer of Harris County, Texas, (Henry E. Kriegel,

successor in office), Defendant-Appellant Cross-Appellee.

No. 78-3711

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT,

Oct. 22, 1980.

Plaintiff, a former assistant county treasurer, brought

action under Civil Rights Act of 1871 seeking reinstate-

ment and back pay. The United States District Court for

the Southern District of Texas, Ross N. Sterling, J.,

rendered judgment in favor of plaintiff, and appeal was

taken. The Court of Appeals, Goldberg, Circuit Judge,

held that: (1) while plaintiff could have been fired for no

reason whatsoever, it was a violation of his First Amend-

ment right to free speech to fire him for addressing public

body on subject of civil rights for homosexuals; (2) county

treasurer’s dismissal of his assistant for exercising his right

to free speech represented “official policy” for which

county could be held liable; (3) failure of former county

assistant treasurer to name county expressly as a defend-

ant did not constitute a violation of due process where

county had both notice and opportunity to be heard; and

E-2

(4) trial court failed to make adequate findings in award-

ing attorney fees.

Affirmed in part and vacated and remanded in part.

Reaviey, Circuit Judge, filed specially concurring

ree

Appeals from the United States District Court for the

Southern District of Texas.

Before GOLDBERG, GARZA and REAVLEY, Cir-

cuit Judges.

GOLDBERG, Circuit Judge:

We are asked today to review the last scene of a real-

life drama in which the lead actor, defendant Hartsell

Gray, was featured in several roles. The district court con-

cluded the performance by determining that Gray, while

acting in his official role as Treasurer of Harris County,

Texas, had discharged his co-star, plaintiff John Van

Ooteghem, in contravention of the latter’s First Amend-

ment right to free speech. As the final curtain fell, the

district court ordered the defendant to reinstate Van

Ooteghem to his role as Assistant County Treasurer and

awarded back pay which, in light of Gray’s having acted

in his official capacity in wrongfully dismissing Van

Ooteghem, was to be paid from the Departmental Budget

of the County Treasurer’s Office. Appellant now chal-

lenges the finding of liability and the determination that

the back pay award should be satisfied by Harris County.

Finding that the district court was correct on both points,

we perform the encore by affirming its decision. We do,

however, remand the case on the issue of attorney’s fees.

E-3

I. The Factual Background’

In January 1975, plaintiff John Van Ooteghem was

hired by defendant Hartsell Gray, the Treasurer of Harris

County, Texas, to serve first as Cashier Assistant County

Treasurer, and later as Assistant County Treasurer. Van

Ooteghem performed his job in a professional manner:

he was recognized to be both hard-working and quite

brilliant. Accordingly, Treasurer Gray treated the plain-

tiff with the respect due to a professional: Van Ooteghem

was allowed to set his own hours and to take time off as

needed.

On July 28, 1975, Van Ooteghem informed Gray that

he was a homosexual and, shortly thereafter, related his

plans to address the Commissioners Court on the subject

of the civil rights of homosexuals. On July 31, 1975, Gray

forwarded a letter to Van Ooteghem which purported to

restrict the latter to his office between the hours of eight

a.m. and twelve noon and from one p.m. until five p.m.,

Monday through Friday. These hours corresponded to the

times during which citizens were allowed to address the

Commissioners Court. Van Ooteghem was instructed to

acknowledge his agreement with the new schedule by

signing the letter; upon his refusal to do so, Van Ootegh-

em was dismissed.

In response, Van Ooteghem filed suit, pursuant to 42

U.S.C. § 1983? alleging that he was dismissed as Assistant

1. The district court decided the case on the basis of stipulated

facts.

2. 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, subjects,

or causes to be subjected, any citizen of the United States or

other person within the jurisdiction thereof to the deprivation

E-4

County Treasurer in violation of his constitutional right

to free speech.

Il. The Constitutional Violation

[1,2] While it is true that Van Ooteghem, a nonten-

ured employee, could have been fired for no reason what-

soever, it is also true that no public employee can be dis-

missed from his job for a constitutionally infirm reason.

See Mt. Healthy City School District v. Doyle, 429 U.S.

274, 283-4, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977);

Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694,

2697, 33 L.Ed.2d 570 (1972). No governmental benefit

can be denied for a reason that infringes constitutionally

protected interests, including freedom of speech. See, e.g.,

Perry v. Sindermann, supra; Pickering v. Board of Educa-

tion, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.

2d 811 (1968).

In assessing whether Van Ooteghem’s dismissal con-

stituted a violation of his First Amendment right to free

speech, the district court was faced with a tripart inquiry:

1. Was Van Ooteghem’s speech to the Commis-

sioners Court a “substantial” or “motivating” factor

in his being dismissed;

2. Was this speech constitutionally protected; and

3. Would Van Ooteghem have been fired, in the

absence of his decision to address the Commissioners

Court?

See Mt. Healthy City School District v. Doyle, supra, 429

U.S. at 287, 97 S.Ct. at 576; Givhan v. Western Line

of any rights, privileges, or immunities secured by the Constitu-

tion and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for redress.

E-5

Consolidated School District, 439 U.S. 410, 99 S.Ct. 693,

697, 58 L.Ed.2d 619 (1979). The court below decided

each of these three questions in favor of Van Ooteghem

and we have been asked by appellant to review all three

findings. But our review is no easy task as substantial con-

fusion exists as to the proper scope of appellate review

and the standards to be employed in addressing each of

these three questions.

[3] Many appellate decisions—especially in Title VII

discrimination suits—have characterized the issue of an

employer’s motivation in dismissing an employee as one

of ultimate fact, subject to plenary review. See, e.g.,

Jefferies v. Harris County Community Action Association,

615 F.2d 1025, 1031 n.5 (Sth Cir. 1980); Parson v.

Kaiser Aluminum & Chemical Corp., 575 F.2d 1374,

1382-3 (Sth Cir. 1978); Causey v. Ford Motor Company,

516 F.2d 416, 420-1 (Sth Cir. 1975). On the other hand,

recent Supreme Court cases in the area have treated the

question of the employer’s motivation as one of “subsidi-

ary” fact, subject only to “clearly erroneous” review. See,

e.g., Branti v. Finkel, __US.___., 100 S.Ct. 1287,

1291 n.6, 63 L.Ed.2d 574 (1980); Givhan v. Western

Line Consolidated School District, supra, 99 S.Ct. at 697.

In the majority of cases, the appellate court never articu-

lates the standard it is employing in reviewing this ques-

tion. Predictably, in the case at bar, appellant urges that

we independently review the district court’s finding that

Van Ooteghem was fired for exercising his right to free

speech, while appellees maintain that this conclusion must

stand as long as we cannot find it to be “clearly erron-

eous.”

Both parties in this action admit that Van Ooteghem’s

insistence on addressing the Commissioners Court (which

E-6

could only occur during the normal working day). pre-

cipitated the dismissal. However, the two sides character-

ize this one issue quite differently. Appellant argues that

the event represented clear insubordination by an em-

ployee in unilaterally choosing to violate assigned work-

ing hours. Appellee responds that the institution of

assigned hours and the subsequent dismissal for their

breach were aimed solely at stymieing Van Ooteghem’s

free speech. The district court agreed with Van Ooteghem,

finding that his speech to the Commissioners Court was

a substantial factor in the decision to dismiss.

In making this finding, the district court was faced with

a clear factual choice: was Van Ooteghem fired for his

mere absence from work regardless of the purpose of this

absence, or, alternatively, was the establishment of set

working hours and the dismissal for their violation an

attempt to prevent and punish his decision to speak to a

political body on a controversial, political issue? Pursuant

to Federal Rule of Civil Procedure 52,’ the district court’s

finding on this factual issue cannot be set aside absent

clear error. It is improper for an appellate court to sub-

vert the clear mandate of Rule 52 by applying the

phrase “ultimate fact” to important factual questions

or to the last factual determination in a given case,

in order to justify “plenary review” of an_ issue.

Rather, use of the phrase “ultimate fact” should be

limited to those determinations which, although appear-

ing at first glance to involve only issues of fact, actually

require the application of a lurking legal standard to the

3. Federal Rule of Civil Procedure 52 provides in pertinent part:

“Findings of fact shall not be set aside unless clearly errone-

ous, and due regard shall be given to the opportunity of a trial

court to judge of the credibility of the witnesses.”

E-7

pre-determined facts of a case. In such cases, the appel-

late court’s expertise in interpreting and applying the law

justifies reliance on the term “ultimate fact” to distinguish

the question from those which cannot be reversed, pur-

suant to Rule 52, unless “clearly erroneous.”

[4] We cannot say that the trial judge’s finding that

Van Ooteghem’s speech to the Commissioners Court was

a substantial or motivating factor in his dismissal was

clearly erroneous. Immediately after Van Ooteghem’s an-

nouncement of his plan to address the Commissioners

Court, Gray imposed a time schedule restricting Van

Ooteghem to his office between set hours. Although the

time schedule did not appear to be overly burdensome on

its face, the new regulation was completely inconsistent

with the professionalism that had previously typified Van

Ooteghem’s relationship with Gray and the Treasurer’s

Office. Van Ooteghem’s compliance with the schedule

would have necessitated the abandonment of his plan to

address the Commissioners Court. The stipulated facts

provide no basis from which any justification for the

new schedule can be reasonably inferred, other than the

desire to thwart Van Ooteghem’s lobbying on behalf of

homosexuals.

Having concluded that Van Ooteghem’s speech was a

substantial factor in his dismissal, we turn to the second

part of our inquiry—whether the speech was constitu-

tionally protected. The applicable test originates from

the Supreme Court’s opinion in Pickering v. Board of

Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35,

20 L.Ed.2d 811 (1968):

The problem in any case is to arrive at a balance

between the interests of the [employee], as a citizen,

°°’.

E-8

in commenting upon matters of public concern and

the interest of the State, as an employer, in promot-

ing the efficiency of the public services it performs

through its employees.

Employing this test, the district court concluded that,

on balance, Van Ooteghem’s address was constitutionally

protected.

[5] We regard the ultimate determination of whether

an individual’s speech was “constitutionally protected”

to be a question of law. However, in balancing the in-

terests discussed in Pickering in order to assess the

protected nature of a given speech, an appellate court

is constrained, absent clear error, to follow the trial

court’s findings as to the amount of disruption in the

workplace caused by the employee’s speech. In the present

case, the tria! court found that Van Ooteghem’s speech

did not significantly interfere with the operation of the

Treasury nor did it impede Van Ooteghem’s performance

of his claily duties. Based on the stipulated facts of this

case, we cannot find these conclusions to be clearly

erroneous.

[6] Having accepted the trial court’s finding as to the

insignificance of the disruption caused by Van Ooteghem’s

speech, we are clearly led to the conclusion that, as a

matter of law, Van Ooteghem’s speech was “constitution-

ally protected.” The state cannot prevent the speech of

its citizen absent a compelling state interest. See Branti

v. Frankel, US.__., 100 S.Ct. 1287, 1293, 63

L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96

S.Ct. 2673, 2684, 49 L.Ed.2d 547 (1976); Buckley v.

Valeo, 424 U.S. 1, 64-5, 96 S.Ct. 612, 656, 46 L.Ed.2d

659 (1976). In the employment context, this compelling

E-9

state interest standard is satisfied only upon proof that

the regulation of speech was necessary to prevent “a

material and substantial interference” with the operation

of the public department. Hastings v. Bonner, 578 F.2d

136 (Sth Cir. 1978). Gray’s imposition of a restricted

schedule was not justified by the need to prevent a ma-

terial and substantial interference with the Treasury. It

may be true that some treasury workers, or Gray himself,

found the prospect of an employee addressing the Com-

missioners Court on homosexual rights to be distressing.

However, the ability of a member of a disfavored class to

express his views on civil rights publicly and without

hesitation—no matter how personally offensive to his

employer or majority of his coemployees—lies at the

core of the Free Speech Clause of the First Amendment.‘

Thus, the type of disturbance possibly present here, as a

matter of law, cannot present a “substantial and material

interference.” Id.

Up to this point, we have concluded that Van Ooteg-

hem’s constitutionally protected speech was a substantial

factor in his dismissal. While it is clear that a dismissal

4. In affirming the district court’s finding that Van Ooteghem’s

speech was constitutionally protected, we add a note of caution con-

cerning the test, first announced in Pickering, as to whether speech

is “constitutionally protected.” Since the formulation of the Pickering

test in 1968, the Supreme Court has refined the analysis employed

to accommodate the interests of the State and those of its citizenry

under the First Amendment. Although the court in Pickering, supra,

pursued this inquiry in terms of whether the speech in question was,

“on balance”, “constitutionally protected”, 391 U.S. at 568, 88 S.Ct.

at 1734, subsequent cases have clearly established that the analysis

is more properly phrased as to whether the government’s regulation

of constitutionally-protected speech is justified by a compelling state

interest. See, e. g.; Branti v. Finkel, supra, 100 S.Ct. at 1293.

Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 2864, 49 L.Ed.2d 547

(1976); Buckley v. Valeo, 424 US. 1, 64-65, 96 S.Ct. 612, 656,

46 L.Ed.2d 659 (1976).

E-10

of an employee, which is substantially based on protected

speech, constitutes a violation of the Constitution, the

Supreme Court has recently concluded that such a viola-

tion does not justify remedial action’ absent proof that

“but for” the protected speech the employee would not

have been dismissed. Mt. Healthy City School District

v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 575, 50 L.Ed.2d

471 (1977). The Court considered the issue of causation

to be one of fact, id. at 576, and remanded the Mt.

Healthy case for a determination whether the employee

in that case would have been dismissed absent the pro-

tected conduct.

[7] In the case at bar, the district court found that

Van Ooteghem would not have been dismissed but for

his speech to the Commissioners Court. We cannot say

that such a finding was clearly erroneous. Van Ooteg-

hem was shown to be brilliant and hard-working. The

record is absolutely devoid of any collateral justification

for his discharge.°

5. It is likely that the Supreme Court would permit an award

of nominal damages to rectify a constitutional violation that was

not proven to be the cause of the dismissal. Cf. Carey v. Piphus,

435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978) (nominal

damages recoverable for violation of procedural due process in the

absence of proof of actual damages).

6. Having affirmed the district court’s finding that Van Ooteghem’s

speech was the cause of his dismissal, we find appellant’s arguments

that new evidence has been found indicating that Gray had inde-

pendent justification for firing Van Ooteghem to be irrelevant. Gray

had no knowledge of these other justifications at the time of the

dismissal; therefore, they could not have served as the basis of the

dismissal. As noted earlier, while Van Ooteghem could have been

fired for no reason whatsoever, it was a violation of his First Amend-

ment right to free speech to fire him for addressing the Commis-

sioners Court.

E-11

Ill. Assessing Damages: The Many Shades of Gray

Although Gray’s dismissal of Van Ooteghem consti-

tuted a violation of the latter’s constitutional rights, there

is some doubt against whom the back pay award should

be assessed. This doubt arises as a result of the fact,

noted earlier, that throughout the scenario leading to

Van Ooteghem’s dismissal, Hartsell Gray appeared in

several different roles. The County would have liked at

trial to point the accusatory finger at Gray-the-citizen,

thus rendering him personally liable to the plaintiff. In

return, Gray-the-citizen would have desired to lay blame

on his alter ego, Gray-the-official-representative-of-Harris

County, thereby saddling liability on the County.

Spurred by these multi-interests on appeal, appellant —

Hartsell Gray-in-his-official-capacity has attempted to es-

cape all liability by rewriting the script and creating a

new hybrid villain—Hartsell Gray-the-Treasurer. On the

one hand, appellant argues, it was Gray-the-Treasurer

and not Gray-the-citizen who fired Van Ooteghem, so

no personal liability can be assessed. At the same time,

appellant notes, it was Gray-the-Treasurer and not Gray-

the official-representative-of-Harris-County, who appeared

in court, so that to impose liability on Harris County

would constitute a violation of due process. Despite these

chameleonic antics, the district court determined that

Hartsell Gray was acting in his official capacity when

he dismissed Van Ooteghem and that the back pay award

could be levied against Harris County. We agree.

A. Gray-the-Citizen Versus Gray-the-Official-Represen-

tative-of-Harris-County

[8] In contesting the assessment of damages against

Harris County, appellant first argues that a county cannot

*-?

E-12

be held liable for the action of its official in dismissing

a county employee.

The Supreme Court in Monell v. Department of Social

Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611

(1978), clearly delineated the guidelines for determining

the cases in which a county will be considered to have

acted as a “person” subject to suit under 42 U.S.C.

§ 1983:

We conclude, therefore, that a local government

may not be sued for an injury inflicted solely by its

employees or agents. Instead, it is when execution

of a government’s policy or custom, whether made

by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy, in-

flicts the injury that the government as an entity

is responsible under § 1983.

98 S.Ct. at 2038.

As is true of almost every newly-evolved legal standard,

the application of the Monell test is not as easy as its

delineation. The Supreme Court in its justifiable authori-

tarian voice in Monell has spoken and we workers in the

judicial vineyard must labor together to attain the result

that their wisdom commands. The question whether

Gray’s dismissal of Van Ooteghem was an “injury in-

flicted solely by [the County’s] employees or agents” or,

alternatively, whether it represented “the execution of a

government’s policy . . . made by [one] whose. . . acts

may fairly be said to represent official policy” would be

difficult to address without guidance. Fortunately, the

necessary assistance has been provided by the recent and

insightful discussion of the Monell problem in Familias

Unidas v. Briscoe, 619 F.2d 391 (Sth Cir. 1980). In

E-13

considering a Texas county’s liability for the actions of

a county judge in a § 1983 action, Judge Reavley noted:

Because of the unique structure of county govern-

ment in Texas, the judge—like other elected county

officials, such as the sheriff and treasurer—holds

virtually absolute sway over the particular tasks or

areas of responsibility entrusted to him by state

statute and is accountable to no one other than the

voters for his conduct therein. [S. MacCorkle, D.

Smith & J. May, Texas Government 347 (7th ed.

1974)]; E. Jones, J. Ericson, L. Brown & R. Trotter,

Practicing Politics in Texas 205 (3d ed. 1977).

Thus, at least in those areas in which he, alone, is

the final authority or ultimate repository of county

power, his official conduct and decisions must neces-

sarily be considered those of one “whose edicts or

acts may fairly be said to represent official policy”

for which the county may be held responsible under

section 1983. Monell v. Department of Social Ser-

vices, 436 U.S. at 694, 98 S.Ct. at 2038. See gen-

erally, Schnapper, Civil Rights Litigation After Mo-

nell, 79 Colum. L. Rev. 213, 215-19 (1979).

Familias Unidas v. Briscoe, 619 F.2d 391 at 404 (Sth

Cir. 1980) (emphasis added).

There is little doubt as to the wisdom of holding a

county liable for an official’s acts undertaken in those

areas in which the official is the “final authority” or

“ultimate repository of county power.” The only way a

county treasurer, or any local government entity, can

establish “official policy” is through the actions of the

individual, or group of individuals, who possess final

authority within that body. Moreover, in the inevitable

bureaucracy of our complex society, the policy decisions

need not always emanate from apoghean planes in the

E-14

hierarchy, but often may have their source in subordinate

realms. A county must be held accountable for more

than its officially-codified policies; in cases where the

written law of a local government entity vests unbridled

authority in certain areas in an individual, his decisions

become the controlling law and official policy of the

entity.

Hartsell Gray was an elected official equal in au-

thority to the County Commissioners in his domain.

Pursuant to Texas law, Gray had complete authority for

the hiring and firing of personnel within the Treasury.

Tex. Rev. Civ. Stat. Ann. art. 3912c (Vernon 1966).

When he so acted, he acted for Harris County; when he

so erred, he erred for the County. Pursuant to the test

enunciated in Familias, Gray’s dismissal of Van Ooteghem

clearly represented “official policy” for which Harris

County may be held liable.’

7. No party to the appeal has raised the question of conflict of

interest arising from the county attorney’s representation of Hartsell

Gray in all capacities. Moreover, no party could prevail on this issue,

given our conclusion that, as a matter of law (under Familias),

Harris County must be liable for the actions of its Treasurer in the

area of employment. However, a serious problem of conflict of

interest could exist in future § 1983 actions in which one attorney

represents both a county and a county official individually.

The genesis of the problem is easily located. Prior to the Supreme

Court’s decision in Monell, local government entities were not con-

sidered “persons” within 42 U.S.C. § 1983 and were not subject to

liability under that statute. See Monroe v. Pape, 365 U.S. 167, 81

S.Ct. 473, 5 L.Ed.2d 492 (1961). The interests of the employee,

both individually and in his official capacity, completely coincided.

Therefore, both the employee and the county benefitted from being

jointly represented. However, the Supreme Court’s decision in Monell

has caused these interests to be realigned into adversity. Adverse

interests in litigation require adverse legal counsel.

While the cure is as easily identified as the genesis of the problem,

its fate rests in the hands of the Texas Legislature. For example, the

County Attorney in the present case was merely following the man-

E-15

B. Gray-the-Official-County-Representative Versus

Gray-the-Treasurer

[9] Appellant also argues that even if, im some cir-

cumstances, it is proper to hold a county liable for the

wrongful actions of its official under Monell, it is a

violation of due process to do so when the county itself

named as a defendant in his official capacity; ae.

he seems to argue that the mere naming of the official

treasurer of the county as a defendant does not serve

to make the county itself a party to the action. As noted

above, this argument attempts to distinguish between

Gray as a Treasurer and Gray as an official representa-

tive of Harris County. Since the former Gray cannot

in its original complaint because, at the time that the

complaint was filed, counties could not be held liable

as “persons” under § 1983. See, e. g., Monroe v. Pape,

supra. The script for this play had been written and was

in dress rehearsal for decision when Monell caused the

authors to reexamine the script before a complete re-

writing. Although future plaintiffs can, and may be well-

advised to, join the local government entity as a defend-

date of Tex. Rev. Civ. Stat. Ann. art. 33ih (Vernon 1973) in

which provide f all of the defendants in the lawsuit. These statutes

which for the joint representation of a county and officials

E-16

ant in § 1983 actions, we cannot find that the failure to

mame Harris County expressly as a defendant in this

action constituted a violation of due process.

‘Courts have long recognized that suits against members

of government in their official capacity directly implicate

the interests of the government itself. As early as 1828,

the Supreme Court noted:

The claim upon the Governor is as a governor, he

is sued, not by his name. but his title. The demand

made upon him is not made personally, but of-

ficially.

The decree is pronounced not against the person,

ae oe om, ae aap ao Dee Bae o>

nounced against the successor of the original de-

fendant, as the appealed bond was executed by a

different governor from him who filed the te Ma

tion. In such a case, where the chief magistrate of a

State is sued, not by his name, but by his style of

office, and the claim made upon him is entirely in

his official character, we think that the State itself

may be considered a party on the record. If the State

is not a party, there is no party against whom a

decree can be made. . . . This not being a proceeding

against the thing, but against the person, a person

capable of appearing as a defendant, against whom

Governor of Georgia v. Madrazo, 1 Pet. (26 U.S.) 110,

123-4, 7 L.Ed. 73 (1828) (emphasis added).

The widespread recognition that the government entity

itself is the real party in interest in “official capacity”

suits has, in the past, presented severe difficulty for

courts faced with applying the “person” requirement in

E-17

§ 1983 suits. For example, the Second Circuit in its con-

sideration of Monell v. Department of Social Services,

532 F.2d 259 (2nd Cir. 1976), rev’d, 436 U.S. 658, 98

S.Ct. 2018, 56 L.Ed.2d 611 (1978), held that since

municipalities cannot be sued as persons under § 1983

and since suits against city officials in their official ca-

pacity were “mere subterfuge” for suits against the real

party in interest, the city itself, then city officials could

not be sued in their official capacity under § 1983. Id.

at 266. On certiorari, the Supreme Court in Monell v.

Department of Social Services, 436 U.S. 658, 98 S.Ct.

2018, 56 L.Ed.2d 611 (1978), specifically agreed with

the Second Circuit’s conclusion that suits against city

Officials in their official capacity were merely an alterna-

tive form of pleading a suit against the city; however,

the Court concluded that both forms of suit were per-

missible under § 1983. In so doing, the Court expressly

equated suits against officers in their official capacity

with suits against the government:

Since official capacity suits generally represent

only another way of pleading an action against an

entity of which an officer is an agent . . . our hold-

ing today that local governments can be sued under

§ 1983 necessarily decides that local government of-

ficials sued in their official capacities are

under § 1983 in those cases in which, as here, a

local government would be suable in its own name.

Id. at 2036 0.55.

As a practical matter as well, Harris County has been

fairly treated. Since the inception of this lawsuit, Harris

County has been aware, at a minimum, that a former

employee was seeking reinstatement—a remedy which

E-18

-by its nature could have implications only for the County.

Pursuant to statute, Tex. ‘Rev. Civ. Stat. Ann. art. 332c

_ (Vernon.1973), all defendants in this action were repre-

sented by a county attorney. The County had both notice

and opportunity to be heard, sufficient to comport with

. due process. We find, therefore, that the district court’s

assessment of damages against the county treasurer—

in light of Hartsell Gray having acted in his official

capacity when he dismissed Van Ooteghem—did not

constitute a violation of due process.

IV: Attorney's Fees

[10] In its judgment of September 29, 1978, the

district court ordered defendant to pay plaintiff $7,500.00

to cover “taxable costs including reasonable attorney’s

fees.” The court failed to explain how it arrived at this

figure and made no reference to the guidelines for award-

‘ing attorney’s fees set forth by the Fifth Circuit in John-

son v. Georgia Highway Express, Inc.,; 488 F.2d 714

(5th Cir. 1974). At the time this award was entered,

plaintiff had not yet filed his application for attorney’s

fees, nor had any evidence been submitted to the Court

on which such an award could have been based.*

Although its position is not entirely clear, appellant

seems to be arguing that it was improper to award fees

in the absence of any evidence on the matter, and that,

in order for the district court to hear any further evidence,

both sides must be allowed to present evidence on any

issue. Appellant concludes that in order for attorney fees

8. Plaintiff did formally file his application for attorney’s fees on

October 18, 1978. The district court subsequently concluded that its

original award had been reasonable, but it failed once again, to

justify the award based on the consideration enumerated in Johnson.

E-19

to be awarded, defendant Gray must be afforded a new

trial. He supports this position by citing to “common

justice” and to

the tale of a fellow in a tree that was being shaken

by a bear trying to dislodge him. The fellow was

calling on the Lord to help him, with no noticeable

help forthcoming therefrom. At last he ceased his

plea with a final word: “Oh, Lord, if you aren’t

going to help me, then please don’t help that bear.”

[11] Although we neither profess to be the Lord nor do

we support man-eating grizzlies, we do find appellant’s

contention that a new trial must be granted in order for

attorney’s fees to be awarded to be totally without merit.

Attorney’s fees are recovered as part of costs in § 1983

actions; as such, they may be and, in order not to delay

the trial on the merits, often should be proven after a

decision in the principal case has been reached. See Gore

v. Turner, 563 F.2d 159, 163 (5th Cir. 1977). A motion

for fees is not a motion to alter or amend the judgment,

Knighton v. Watkins, 616 F.2d 795 (Sth Cir. 1980),

and therefore, does not require a reconsideration of the

judgment.

{12] The appellate court does, however, have the duty

to review the reasonableness of an award of attorney’s

fees for an abuse of discretion. See Johnson, supra, 488

F.2d at 717. Absent specific findings by the district court

following the criteria enunciated in Johnson, appellate

review of the reasonableness of the fee award becomes

a task of pure speculation. Since we ought not to specu-

late with defendant’s money and since an evidentiary

hearing—solely restricted to the issue of fees—may be

warranted, we vacate the award of $7,500 and remand

’*%

E-20

the case for entry of an order fixing a reasonable’ fee

and reflecting the considerations which led to it. See id.

Given our concern for speed in judicial productions, we

note that the remand for the proper determination of

attorney’s fees will not require a five act drama but merely

an epilogue of slight proportions.

VY. Conclusion

Defendant Hartsell Gray, while acting in his official

capacity, dismissed plaintiff John Van Ooteghem in vio-

lation of the latter’s right to free speech. Damages were

properly assessed against Harris County. Finding no error

in the proceedings below on the issues of liability and

damages, we affirm those sections of the lower court’s

opinion.

The district court failed to make adequate findings in

awarding attorney’s fees. We vacate the award of $7,500

in attorney’s fees and remand the case for reconsideration

of this one issue.

AFFIRMED IN PART AND VACATED AND RE-

MANDED IN PART.

9. We do not, however, by virtue of this remand intimate any

view as to the reasonableness of the original award. We note only

that, on remand, plaintiff should present proof of reasonable fees

associated with this appeal and the remand, in addition to the

proof already submitted.

E-21

REAVLEY, Circuit Judge, specially concurring:

I concur with the result and the reasoning of the

majority’s opinion with one exception. I cannot agree with

the majority’s conclusion in part II of the opinion that the

balancing test enunciated by the Supreme Court in Pick-

ering has somehow been transformed or “refined” into a

compelling state interest test by the Court’s subsequent

decisions in Buckley v. Valeo, 424 U.S. 1, 64-65, 96 S.Ct.

612, 656, 46 L.Ed.2d 659 (1976); Elrod v. Burns, 427

U.S. 347, 362-63, 96 S.Ct. 2673, 2684, 49 L.Ed.2d 547

(1976); and Branti v. Finkel, ___US. . , 100

S.Ct. 1287, 1293, 63 L.Ed.2d 574 (1980). I find no

justification for the conclusion that cases subsequent to

Pickering have “clearly established that the analysis [for

determining whether a governmental employer may in-

hibit its employees’ right of free speech] is more properly

phrased as to whether the government’s regulation of

constitutionally-protected speech is justified by a compel-

ling state interest” (slip opinion p. 511, p..__., n.4, em-

phasis added).

Branti v. Finkel and Elrod v. Burns involved discharges

of governmental employees for patronage reasons. In each

case, the Court clearly indicated that when political

patronage is practiced the First Amendment rights of

belief and association are restricted. Branti, ___U.S. at

—___., 100 S.Ct. at 1289 (“question presented is whether

the First and Fourteenth Amendments .. . protect [a

governmental employee] who is satisfactorily performing

his job from discharge solely because of his political

beliefs”); Elrod, 427 U.S. at 355, 96 S.Ct. at 2680-81

(“cost of the practice of patronage is the restraint it

E-22

places on freedoms of belief and association”). In these

cases, the Court held that in order for government to

impose a restriction on public employment based on party

identification, the restriction must survive “exacting scru-

tiny,” which is synonymous with the “compelling state

interest” test, Sherbert v. Verner, 374 U.S. 398, 406-07,

83 S.Ct. 1790, 1795, 10 L.Ed.2d 965 (1963); Bates

v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412,

417, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, 357

U.S. 449, 463, 78 S.Ct. 1163, 1172, 2 L.Ed.2d 1488

(1958).

In this case, however, we deal not with a governmental

employee’s rights of belief and association, but with his

right of free speech. The Supreme Court has chosen to

employ different levels of judicial scrutiny with respect

to a government’s restrictions on its employees’ First

Amendment rights: the constitutionality of an impairment

on a public employee’s rights of belief and association

is determined by applying the compelling state interest

test. Elrod v. Burns, 427 U.S. at 362-63, 96 S.Ct. at

2684, while the constitutionality of an impairment on his

right of speech is determined by application of a balanc-

ing test, Givhan v. Western Line Consolidated School

Dist., 439 U.S. 410, 414, 99 S.Ct. 693, 696, 58 L.Ed.2d

619 (1979); Mt. Healthy City School Dist. v. Doyle,

429 U.S. 274, 284, 97 S.Ct. 568, 574, 50 L.Ed.2d 471

(1977); Pickering v. Board of Education, 391 U.S. 563,

568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968). In

Givhan and Doyle, which were both decided subsequent

to Elrod v. Burns, I fail to find any mention, either ex-

press or implied, of a refinement or metamorphosis of the

Pickering balancing test into a compelling state interest

E-23

analysis; instead, in both cases the Court restates the

Pickering test without modification.’

I am further convinced that a compelling state interest

standard applies to restraints on public employees’ rights

of belief and association, while a balancing test applies

to restraints on their rights to free speech, by reading

the cases cited in Elrod v. Burns. Specifically, as author-

ity for the proposition that “[i]t is firmly established that

a significant impairment of First Amendment rights must

survive exacting scrutiny,” the Court in Elrod cites Buck-

ley v. Valeo, 427 U.S. at 362, 96 S.Ct. at 2684. The

portion of Buckley v. Valeo referred to dealt with the

compelled disclosure requirements of the Federal Election

Campaign Act of 1971.” The Court in Buckley noted that

1. It is significant to note the following language from Givhan,

439 US. at 415 n.4, 99 S.Ct. at 696 n.4:

“Although the First Amendment’s protection of government

employees extends to private as well as public expression, strik-

ing the Pickering balance in each context may involve different

considerations. When a teacher speaks publicly, it is generally

the content of his statements that must be assessed to determine

whether they ‘in any way either impeded the teacher’s proper

performance of his daily duties in the classroom or . . . inter-

fered with the regular operation of the schools generally.’

Pickering v. Board of Education, supra, 391 U.S., at 572-73,

88 S.Ct., at 1737. Private expression, however, may ‘in some

situations bring additional factors to the Pickering calculus.

When a government employee personally confronts his immediate

superior, the employing agency’s institutional efficiency may be

threatened not only by the content of the employee’s

but also by the manner, time, and place in which it is delivered. ”

2. The law requires all political committees to keep detailed rec-

ords of contributions. These records must include the name and

address of every person contributing in excess of $10 and also his

or her occupation and principal place of business if the aggregate

contribution exceeds $100. Quarterly reports containing the full

name, mailing address, occupation and principal place of business of

every person contributing over $100 a year must be filed with the

Federal Election Commission.

E-24

it had “repeatedly found that compelled disclosure, in

itself, can seriously infringe on privacy of association and

belief guaranteed by the First Amendment.” 424 U.S. at

64, 96 S.Ct. at 656 (emphasis added). The Court further

recognized “that significant encroachments on First

Amendment rights of the sort that compelled disclosure

imposes [encroachments on privacy of association and

belief] cannot be justified by a mere showing of some

legitimate governmental interest”; instead since NAACP

v. Alabama, 357 U.S. 449, 463, 78 S.Ct. 1163, 1172,

2 L.Ed.2d 1488 (1958), the Court has “required that

the subordinating interests of the State must survive

exacting scrutiny.”* /d.

The Court, by employing different standards to test

governmental action that interferes with public employees’

First Amendment rights, apparently differentiates between

the primacy of the values protected by the rights of belief

and association on one hand and the right of speech on

the other. Freedom of “political belief and association

constitute the core of those activities protected by the

First Amendment.” Elrod v. Burns, 427 U.S. at 356,

96 S.Ct. at 2681. They are the keystone rights of the

First Amendment—the most preferred of the preferred

rights. A public employee’s belief and association rights

rarely would result in a material and substantial inter-

ference with the interest of government “in promoting

the efficiency of the public services it performs through

its employees.” Pickering v. Board of Education, 391

3. In NAACP v. Alabama, the Court held that a compelling

state interest must be demonstrated before government could impair

an individual’s First Amendment right of association by requiring

an organization of which he is a member to disclose its membership

rolls. 357 U.S. at 463, 78 S.Ct. at 1172.

E-25

U.S. at 568, 88 S.Ct. at 1735. However, the possibility

for such interference is greater when the public employee

transmits his beliefs in the form of speech.* Therefore,

it is appropriate that a more lenient—from the govern-

mental employer’s perspective—balancing test is applied

to restraints on public employees’ speech, while a more

stringent compelling state interest test is applied to re-

straints on their rights of belief and association.

The imposition of the compelling state interest test

to the area of public employee free speech would work

too onerous a burden on the governmental employer.

Under the compelling state interest test, the burden is

on the government to show the existence of a paramount,

vital or compelling interest in conditioning a public

employee’s continued employment on a restraint of his

First Amendment rights, which will further “some vital

government end by a means that is least restrictive of

freedom of belief and association in achieving that end,

and the benefit gained must outweigh the loss of con-

stitutionally protected rights.” Elrod v. Burns, 427 US.

at 362-63, 96 S.Ct. at 2685. A compelling state interest

is most often present when the regulated conduct, normal-

ly protected by the First Amendment, poses “some sub-

stantial threat to public safety, peace or order.” Sherbert

v. Verner, 374 U.S. at 403, 83 S.Ct. at 1793. Rarely

does government meet this burden when the compelling

state interest test is applied. I am aware of only two

4. I recognize that association is to some extent the outward

indicia of belief, as is speech. Association, however, involves subjec-

tive elements as well, unlike speech which is purely objective. I also

recognize that the line between association and speech is fine and

often difficult to discern. Nonetheless, the Supreme Court has decided

to test restraints on these rights with different standards. It is not

our prerogative to disregard the Court’s decision.

E-26

instances in which the Supreme Court has upheld gov-

ernmental action when strict scrutiny or the compelling

state interest test has been applied. See Buckley v. Valeo,

424 US. 1, 96 S.Ct. 12, 46 L.Ed.2d 659 (1976)

(holding that contribution and compelled disclosure pro-

visions of the Federal Election Campaign Act do not

violate the First Amendment); Korematsu v. United

States, 323 US. 214, 65 S.Ct. 193, 89 L.Ed. 194

(1944) (holding that legal restrictions on persons of

Japanese descent during World War II were not un-

constitutional).

I conclude that Van Ooteghem’s speech was constitu-

tionally protected under the balancing test of Pickering.

In balancing the interests of Van Ooteghem in comment-

ing on matters of public concern against the interest of

Harris County as an employer in promoting the efficiency

of public services performed by the county treasurer’s

office, I look to the values of the First Amendment in

“having free and unhindered debate on matters of public

importance,” Pickering, 391 U.S. at 573, 88 S.Ct. at

1737, and whether addressing the commissioners court

would “substantially and materially interfere” with the

discharge of the duties and responsibilities inherent in

Van Ooteghem’s employment, Smith v. United States,

502 F.2d 512, 517 (Sth Cir. 1974). See Porter v.

Califano, 592 F.2d 770, 773 (Sth Cir. 1979). The

district court found that Van Ooteghem’s “temporary

absence to address the Commissioners Court could not

have substantially impeded the functioning of the Trea-

sury.” I agree with the majority that this finding is not

“clearly erroneous.” On this basis I concur in the judg-

ment of the court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.