Petition for Writ of Certiorari — Mekss v. Wyoming Girls' School

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‘unroma Court, US

OCT 21 19g

Tetick GF 1tiE GLERK

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No. 91- +}

Aenemmeans

IN THE

Supreme Court of the United States

OCTOBER TERM. 1991

REGINA MEKSS,

Petitioner,

—_—vV.—

WYOMING GIRLS’ SCHOOL,

STATE OF WYOMING,

Respondent.

PETITION FORA WRIT OF CERTIORARI

TO THE SUPREME COURT OF WYOMING

PETITION FOR A WRIT OF CERTIORARI

Stephen L. Pevar

(Counsel of Record)

American Civil Liberties Union

Foundation

6825 East Tennessee Avenue

Building 2, Suite 262

Denver, Colorado 80224

(303) 321-4828

Jane A. Villemez

Graves, Santini & Villemez, P.C.

408 West 23rd Street, Suite One

Cheyenne, Wyoming 82001

(307) 638-8885

QUESTIONS PRESENTED

1. Whether the court below erred in holding, con-

trary to the view of five federal circuits, that a public

employee who reports her agency’s malfeasance to the

proper investigatory authority without first going through

the agency’s own chain of command automatically for-

feits all First Amendment protection and is subject to

dismissal.

2. Whether the court below erred in holding that a

public employee’s criticism of the manner in which pub-

lic officials investigate government malfeasance is enti-

tled to "limited" First Amendment protection.

3. Whether the court below erred in holding that

"secondhand" speech deserves less constitutional protec-

tion than speech based upon firsthand information.

LIST OF PARTIES

The caption of the case contains the names of all

parties.

TABLE OF CONTENTS

Page

PU ME PARP ERTUE TEES 5 ois ec ences ill

Co a re ]

I a a ee |

RELEVANT CONSTITUTIONAL PROVISION .. 2

eeeweeenenwe GPP BRO CAGE .. wn cc ccce seer 2

A. Factual Background ................. 2

i) WUOUOINNS TOOT ww wc ee te ome eo es 7

REASONS FOR GRANTING THE WRIT ...... 9

I. THE DECISION BELOW DIRECTLY

CONFLICTS WITH DECISIONS OF

FIVE UNITED STATES COURTS OF

SPSS er 10

Il. THE DECISION BELOW RAISES

ISSUES OF NATIONAL SIGNIFI-

CANCE CONCERNING THE MEAN-

ING AND SCOPE OF THIS COURTS

DECISIONS REGARDING THE

FIRST AMENDMENT RIGHTS OF

ae es FG g | 16

A. The Decision Below Reflects A

Basic Misunderstanding About

When The Speech Of Public Em-

ployees Relates To A Matter Of

EEE Soy SNe 5 see's wae 5 16

B. By Discounting The Importance Of

"Secondhand" Information, The

Decision Below Undermines

Important First Amendment Values ... 19

2? & 0). : Ser ree ee es ee 21

TABLE OF AUTHORITIES

Page

Cases

Allen v« Scribner,

S12 F206 Gee Gee Cor. T9G7) ccc ect cccvesccess 13

Anderson v. Central Point School

District No. 6,

‘oe We ee ee es Ss ik 5s ee wees eeweves 13

Atcherson v. Siebenmann,

605 F.2d 1058 (8th Cir. 1979) ......... 10, 12, 13, 16

Belco Petroleum Corp. v. State

Board of Equalization,

Set Sue Be Ce 6 ok kee wed chien 8

Bose Corp. v. Consumers Union

of United States, Inc.,

OP ee I yet Pee ye ee ae ea 20

Brockell v. Norton,

pee © Ge 8 ee rer er era 14

Carey v. Brown,

eF-Se OUD s <-4 v0 dp ee Oe KR ee 10

Conaway v. Smith,

SoD Fae Fae cree Ge. SHG) oo cc kes cuwev es 16, 18

Connick v. Myers,

me ee re 10, 17, 18

Considine v. Board of

County Commissioners,

O30 Fae ee Ce GO, FOG) ge vce cvuies 12, 16

Czurlanis v. Albanese,

ae wb 26 ke et) Pee 11, 12, 16

ill

Gertz v. Robert Welch, Inc.,

ey ey

Hustler Magazine v. Falwell,

485 U.S. 46 (1988) ..........---0-e

Knapp v. Whitaker,

Tot ae eer Crem Ct. 1985) .. 22.0 o se

McKinley v. City of Eloy,

705 F.2d 1110 (9th Cir. 1983) ........

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) ...........0e--

Pickering v. Board of Education,

9k Ui ee Gee 6 os eee ee ees

Porter v. Califano,

592 F.2d 770 (Sth Cir. 1979) .........

Roth v. United States,

Jon Wa Es hs eae wd eae ene

Schalk v. Gallemore,

906 F.2d 491 (10th Cir. 1990) ........

Thomas v. Carpenter,

881 F.2d 828 (9th Cir. 1989) .........

Statutes and Regulations

28 USL: SHS 2 ss cc ss ae

Wyoming Statutes (1977)

RE oc ok ca vena evens

een een oe

vo er ae

§25-1-201(b)(i),(c) ..... eee eee

No. 91-

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

REGINA MEKSS,

Petitioner,

WYOMING GIRLS’ SCHOOL,

STATE OF WYOMING,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF WYOMING

OPINIONS BELOW

The opinion of the Wyoming Supreme Court is

reported at 813 P.2d 185 (Wyo.1991), and is reprinted in

the Appendix at la-61a. The opinions of the Wyoming

District Court of Sheridan County, (63a), and the

Wyoming Personnel Review Board, (64a-66a), are not

officially reported.

JURISDICTION

The Supreme Court of the State of Wyoming filed

its opinion on June 12, 1991, (1a-61a), and entered its

Order Denying Petition for Rehearing, (62a), on July 24,

1991. Petitioner invokes the jurisdiction of this Court

pursuant to 28 U.S.C. §1257(a).

RELEVANT CONSTITUTIONAL PROVISION

The First Amendment to the United States Constitu-

tion provides:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the free-

dom of speech, or of the press; or the right

of the people peaceably to assemble, and

petition the government for a redress of

grievances.

STATEMENT OF THE CASE

A. Factual Background

Respondent Wyoming Girls’ School terminated peti-

tioner Regina Mekss’ employment as a bookkeeper on

December 21, 1988, because she reported malfeasance at

the school to its supervising agency, the Wyoming Board

of Charities and Reform, and because she subsequently

criticized the Board’s inadequate investigation into the

reported wrongdoing. Her speech took the form of an

anonymous letter to the Board, in which she reported

physical abuse of adolescent girls by male guards, sex-

based discrimination in employment, mismanagement, fa-

voritism, and other improprieties. Mekss had an excel-

lent performance record, she stood to gain nothing per-

sonally by "blowing the whistle," and her speech activities

did not disrupt the school’s operation. Nevertheless, the

school fired Mekss when she revealed her authorship of

the anonymous letter and challenged the investigation

that it precipitated.

The Wyoming Girls’ School is the state institution

created by statute to provide educational, vocational, and

rehabilitative services to adolescent girls committed by

the state’s district courts. §§25-4-101-103, W.S.1977.

The school is under the supervision of the Wyoming

Board of Charities and Reform, composed of the Gover-

nor, the Secretary of State, the State Treasurer, the State

Auditor, and the State Superintendent of Public Instruc-

tion. §25-1-101, W.S.1977. The Board appoints the

school’s superintendent. §25-1-201(b)(i),(c), W.S.1977.

Regina Mekss was hired by the Girls’ School in 1984

as a night dormitory attendant. Approximately one year

later, at her request, she was transferred to the business

office as a bookkeeper, where she could use her degree

in accounting. Throughout her tenure, Mekss received

exemplary performance evaluations, and Superintendent

Jack Geisler considered her a valued employee. She

held this position until December 21, 1988, when Geisler

fired her for criticizing the Board’s investigation into his

alleged malfeasance.

Throughout the first half of 1988, several employees

of the Girls’ School were so concerned about malfea-

sance at the school that they sent anonymous letters to

the Board of Charities and Reform requesting an investi-

gation by the Board into a series of abuses, including:

excessive use of force against the girls at the school, mis-

management, intimidation of employees, improper hiring

practices, favoritism, and sex-based discrimination.

Regina Mekss was the author of one of these letters,

dated August 12, 1988. Her five page letter, addressed

to the Governor and the other members of the Board,

begins with the following paragraph:’

There are grave problems in administration

here at the Wyoming Girls’ School which

are growing progressively worse and which

are very negatively affecting the morale and

performance ability of the staff and, ulti-

mately, quality of service rendered by this

' The text of petitioner’s letter is reprinted in full in the Appendix at

67a-73a.

agency.

Consistent with this opening theme, the rest of the

letter focused entirely on problems regarding the

school’s operation; nothing in the letter concerned

Mekss’ own position or involved matters personal to her.

For example, other representative portions of her letter

Stated:

Incest and rape victims are permitted to ac-

knowledge the horror of their experience

and cry about it once, maybe twice (when

they have been raped most of their lives?),

and then virtually ordered to "get on with

it{].". [With more than] 60% of the Girls’

School residents being known incest victims

. . . [why is] no proportionally heavy empha-

sis placed on this in their rehabilitation pro-

gram? ... Still further, corporal punishment

(some of us thought it was illegal) is execu-

ted in the presence of at least one male

(Mr. Geisler failed to mention this in his let-

ter); generally two are present. With the

bulk of our residents being incest victims,

this only reinforces the experience of abu-

sive males. Is this appropriate? The as-

sumption for male presence is that it must

be male in order to create a take-charge at-

mosphere and minimize resistance. It is

probably due to this kind of thinking that

the Girls’ School has never hired a female

guard....

oe? 6 & 6 2's

Jack Geisler will listen to the input of only a

select few "fair haired boys" and members of

the “Boys’, Club" without question and he

consistently will not even allow for presenta-

tion of another point of view or the other

side of the story.

[MJany staff members would reinforce [my]

concerns and add many more if they were

not totally intimidated. But precedents al-

ready exist of Girls’ School employees who

have been relentlessly harassed into submis-

sion, some even to the point of (early) re-

tirement. Some of our staff have left simply

because they refused to take the abuse or

because they decided not to deal with the

pervading stress.

Even some of Jack’s favorite and most loyal

female staff members, when expressing con-

cern regarding possibly inadequate therapy

for victims of rape and incest, have been

summarily dismissed and ridiculed . . . with

the final insinuation that they must have

some dark, ugly history in their past to be so

"hung up on it."

The list goes on. It is more than any one

person can tell or any one (long) letter can

carry. But many have indicated that if you

were to offer confidentiality, they would tell

much.

I believe this can be fixed ... . [However,] I

do not know how these problems could [be]

dealt with in any other fashion in the cur-

rent system. The grievance process is not

workable in this situation. What subordi-

nate can ever go to a boss and tell them

they are making a mistake and especially in

this situation where Mr. Geisler has made it

abundantly clear that he does not take sug-

gestions well, even those couched in the

most non-threatening language?

In response, the Board appointed a two person in-

vestigatory team, consisting of the state’s Corrections

Administrator and the warden at the Women’s Correc-

tion Center. At the conclusion of their two day investi-

gation, the Board exonerated Geisler of any wrongdoing

even though six staff members had expressed their "uni-

versal dissatisfaction" with the school’s management

during interviews with the investigatory committee. (7a).

The Board then notified Geisler and the school staff by

letter that the anonymous allegations had not been sub-

Stantiated.

Shortly thereafter, Geisler gave a speech in which he

warned his employees that their complaints should be

made through a chain of command, and that any further

unsubstantiated criticism of his administration would be

dealt with severely:

To those of you who have found working

here so dissatisfying that you sought to

change things through malicious attacks on

people, policy or program anonymously, or

by resistance to policies and guidelines, I

Suggest that you need to search elsewhere

for employment, for your presence here can-

not be tolerated.

Despite this threat, Mekss was concerned that the

Board’s findings ignored the evidence that she and other

employees had presented. She expressed this concern to

Board member and Secretary of State Kathy Karpan,

who advised Mekss to take her misgivings about the in-

vestigation to the Board’s Executive Secretary, Gary

Sherman. Mekss accepted the invitation and telephoned

Sherman. In the course of an hour long conversation,

Mekss reviewed her allegations about the school, criti-

cized the scope and the results of the Board’s investiga-

tion, and revealed for the first time that she had au-

thored one of the anonymous letters. Sherman re-

sponded by telling Mekss to "get on [the] right side or

get out." He warned her that she was violating the chain

of command and that he intended to advise Geisler of

her telephone call. True to his word, Sherman reported

to Geisler that Mekss had contacted him and had admit-

ted to writing one of the anonymous letters.

Geisler immediately confronted Mekss. He told her

that, unless she wrote a public apology for her anony-

mous letter, he was going to fire her if she did not re-

sign. Faced with this choice, Mekss wrote a letter in

which she apologized for any personal suffering her

anonymous letter may have caused Geisler. She refused,

however, to retract the substance of her allegations, and

once again criticized the Board’s findings:

I still do not, to this day, believe that I could

have approached this situation from within

this agency without reprisal, and I challenge

the conclusion of this summer’s investigation

that ro allegations were found to be sub-

stantiated, because it directly contradicts in-

formation which I know I presented.

Geisler rejected this letter of apology and, on December

21, 1988, sent Mekss a written notice terminating her

employment.

B. Proceedings Below

Mekss appealed her termination to the Wyoming

Personnel Review Board, arguing that the school had

punished her in violation of her rights under the First

Amendment to the United States Constitution. Al-

though the Review Board affirmed Geisler’s decision to

terminate petitioner’s employment, (64a-65a), it lacked

the authority under state law to determine the constitu-

tionality of petitioner’s dismissal. See Belco Petroleum

Corp. v. State Board of Equalization, 587 P.2d 204 (Wyo.

1978). The district court affirmed without ever address-

ing petitioner’s constitutional claims, (63a), and petition-

er then appealed to the Wyoming Supreme Court. On

June 12, 1991, the Wyoming Supreme Court held, in a

three-to-two decision, that Mekss’ dismissal did not vio-

late the First Amendment. (1la-61a).

The Wyoming Supreme Court held that, although

Mekss’ anonymous letter was protected speech, her sub-

sequent telephone call to the Board of Charities and Re-

form regarding the scope and adequacy of the Board’s

investigation was unprotected conduct because it wrong-

fully bypassed the school’s chain of command. The court

specifically rejected the Review Board’s finding that "Ms.

Mekss created disharmony in the function of the Wyo-

ming Girls’ School." (13a-14a).’ In addition, the

Wyoming Supreme Court acknowledged that "Mekss’

ability to perform her duties might not have been af-

fected ...." (30a).? Nevertheless, the Wyoming Su-

preme Court concluded that "Mekss violated an obliga-

tion to her employer to exhaust ‘normal personnel sys-

tem options’ before calling Sherman with complaints

about the investigation." (38a-39a). In the court’s view,

Mekss’ failure to obey Geisler’s chain-of-command rule

was the "single, viable finding of basic fact" justifying her

dismissal. (37a).

On June 27, 1991, Regina Mekss petitioned the Wy-

*"We are not persuaded that substantial evidence in the record sup-

ports the actual creation of disharmony by Mekss.” (39a).

>In fact, despite the tentative language of the Wyoming Supreme

Court, there was no evidence in the record that petitioner’s job per-

formance as a bookkeeper was impaired in any way by her expressive

activities.

oming Supreme Court for rehearing on the ground that

the court’s decision imposing a chain-of-command rule

on a low echelon employee in a case of this nature con-

flicts directly with decisions from five federal appellate

courts. The Wyoming Supreme Court denied the peti-

tion without opinion in an order entered on July 24,

1991. (62a).

REASONS FOR GRANTING THE WRIT

As the dissent below correctly recognized, this case

has "profound consequence[s]," (47a), for the free speech

rights of public employees throughout the country. If

those rights can be effectively extinguished by any state

agency that chooses to adopt a chain-of-command rule,

then the careful balancing test articulated by this Court

in Pickering v. Board of Education, 391 U.S. 563 (1968),

will quickly become a dead letter, other agencies will fol-

low the lead of respondent in this case, and the public

will lose an invaluable source of information about the

inner workings of government.

For these reasons, five federal circuits have rejected

the rigid approach adopted by the Wyoming Supreme

Court. Rather than beginning and ending their analysis

with the chain-of-command rule, each of these circuits

has demanded proof that the chain-of-command rule is

necessary to the agency’s legitimate function rather than

a convenient means of suppressing dissent and discourag-

ing public reports of misconduct. In sharp contrast, the

Wyoming Supreme Court assumed that any breach of

the chain of command is tantamount to disloyalty and

justifies dismissal even when, as here, there is no evi-

dence that the employee’s speech caused disharmony or

any disruption in the workplace.

It is difficult to conceive of a rule that is less sensi-

tive to the free speech rights of public employees or

more calculated to have a chilling effect. Only plenary

review by this Court can resolve the conflict that has

developed among the lower courts about the proper

weight to assign to a chain-of-command rule in a First

Amendment case. More importantly, only plenary re-

view by this Court can restore the proper balance be-

tween the government’s legitimate interests a; an em-

ployer and the free speech rights of public employees.

I. THE DECISION BELOW DIRECTLY CON-

FLICTS WITH DECISIONS OF FIVE UNITED

STATES COURTS OF APPEALS

The First Amendment guarantees a free and robust

debate on public issues. "[E]xpression on public issues

‘has always rested the highest rung of the hierarchy of

First Amendment values,” and is entitled to special pro-

tection. NAACP v. Claiborne Hardware Co., 458 U.S.

886, 913 (1982)(quoting Carey v. Brown, 447 U.S. 455,

467 (1980))." Public employees have a constitutional

right to participate in that debate, and their comments

and criticisms are often uniquely valuable. Pickering, 391

US. at 572.

Therefore, every chain-of-command rule exacts a

constitutional price, even though it may serve an agency

function. It will always delay the dissemination of

speech and, in certain situations, it will chill or suppress

it, especially when the object of the employee’s criticism

is someone within the chain.” Although there are times

when a chain-of-command rule must be obeyed, any par-

* See also Connick v. Myers, 461 U.S. 138, 145 (1983)("the First

Amendment ‘was fashioned to assure unfettered interchange of ideas

for the bringing about of political and social changes desired by the

people.’ Roth v. United States, 354 U.S. 476, 484 (1957)").

° Cf. Atcherson v. Siebenmann, 605 F.2d 1058, 1063 n.5 (8th Cir. 1979)

("the enforcement of [a chain-of-command] rule against an employce

seeking to criticize the very superior empowered to review [such com-

plaints] would impermissibly chill First Amendment rights”).

ticular enforcement of such a rule must survive scrutiny

under the Pickering balancing test. Clearly, an employer

must not be permitted to punish an employee who by-

passes the chain of command in order to blow the whis-

tle on agency misconduct solely on the ground that the

employee ignored the chain. This is especially true

where, as here, the employee’s action caused no disrup-

tion in the agency’s legitimate function.

The federal courts have refused to give a chain-of-

command rule the overriding weight it was afforded by

the court below in the absence of proof that such a re-

Striction on speech is actually necessary. In Czurlanis v.

Albanese, 721 F.2d 98 (3d Cir. 1983), the court invalida-

ted on First Amendment grounds a chain-of-command

rule as applied to an employee who, as here, took his

complaints regarding his agency to the agency’s govern-

ing body, bypassing administrative channels. The Third

Circuit found no compelling reason to stifle or delay the

employee’s speech, even if, from the agency’s perspec-

tive, it would have been more efficient for the employee

to have followed the chain:

[W]e hold that such a [chain-of-command]

policy cannot be used to justify the retaliato-

ry action against Czurlanis under the rubric

of the County’s interest in promoting the ef-

ficiency of public service. /t is simply incom-

patible with the principles that underlie the

First Amendment to countenance a policy

that would severely circumscribe in this

manner speech on public issues, which occu-

pies the "highest rung on the hierarchy of

First Amendment values.". NAACP v. Clai-

borne Hardware Co., 458 U.S. 886, 913

(1982). A policy which would compel public

employees to route complaints about poor

departmental practices to the very officials

responsible for those practices would imper-

missibly chill such speech. See Atcherson v.

Siebenmann, 605 F.2d 1058, 1063 n.5 (8th

Cir. 1979). It would deter "whistle blowing"

by public employees on matters of public

concern. It would deprive the public in gen-

eral and its elected officials in particular of

important information about the functioning

of government departments.

Id. at 105-06 (footnote omitted)(emphasis added).

The Tenth Circuit reached a similar conclusion in

Schalk v. Gallemore, 906 F.2d 491 (10th Cir. 1990). In

that case, a patient accounts clerk at a public hospital

was fired for complaining to the hospital board of trus-

tees about hospital management practices. The court

held that the Pickering balance tipped in favor of the em-

ployee, and the court relied on facts identical to those

here: there was no actual! disruption in the workplace,

her own job did not suffer, her complaints involved pub-

lic concerns such as mismanagement and favoritism, and

the low echelon position of this particular employee

"[did] not involve working relationships necessitating an

especially high degree of personal loyalty or confidence."

Id. at 497. See also Considine v. Board of County Com-

missioners, 910 F.2d 695, 700, 701 (10th Cir. 1990)(al-

though employee may have "irritated" employer by taking

his criticisms "outside the normal chain of command,"

dismissal was improper absent showing of sufficient gov-

ernmental necessity).°

° Proving a governmental necessity would be particularly difficult here,

given the Wyoming Supreme Court’s finding that Mekss’ expression

caused no disruption. What is more, the court takes pains to explain

that Mekss was punished, not for complaining to the Board of Chari-

ties and Reform about her agency’s malfeasance, but rather for com-

plaining to the Board about the Board’s malfeasance. (23a). Why,

then, should Mekss have been fired for disobeying her agency’s chain

of command when she was not complaining about her agency?

The decision of the Eighth Circuit in Atcherson v.

Siebenmann, 605 F.2d 1058, is also inconsistent with the

reasoning adopted by the Wyoming Supreme Court in

this case. Atcherson was a probation officer who vio-

lated a general rule of her employer, Judge Siebenmann,

when she sent a critical letter to an outside agency with-

out channeling it through the judge. Concluding that the

office’s efficiency was compromised, Judge Siebenmann

pressured Atcherson into resigning. The Eighth Circuit

ruled that this retaliatory action violated Atcherson’s

First Amendment rights. The court rejected defendant’s

claim that a chain-of-command rule should be enforced

even when an employee caused no disruption in bypass-

ing it. In reaching this conclusion the Eighth Circuit

specifically relied on the employee’s strong interest in

speaking on matters of public concern. The Seventh and

Ninth Circuits have followed a similar approach. See

Anderson v. Central Point School District No. 6, 746°F.2d

505 (9th Cir. 1984); Knapp v. Whitaker, 757 F.2d 827 (7th

Cir. 1985).

This conflict, moreover, does not disappear merely

because the Wyoming Supreme Court likened the Wyo-

ming Girls’ School to a law enforcement agency. (23a,

29a). To the contrary, the federal courts have recog-

nized that "the competency of the police force is surely a

matter of great public concern." McKinley v. City of Eloy,

705 F.2d 1110, 1114 (9th Cir. 1983). Thus, the federal

courts have required even law enforcement employers to

furnish sufficient proof of actual or potential disruption

resulting from this particular expression. See, e.g., Allen

v. Scribner, 812 F.2d 426, 432 (9th Cir. 1987)("yet even in

a police department, the complained-of disruption must

be ‘real, [and] not imagined’")(quoting McKinley, 705

F.2d at 1115). See also Thomas v. Carpenter, 881 F.2d

828, 831 (9th Cir. 1989)(a law enforcement employer

"cannot use the disruption exception as a pretext for

stifling legitimate speech or penalizing unpopular views")

(citation omitted).

The Eighth Circuit’s decision in Brockell v. Norton,

732 F.2d 664 (8th Cir. 1984), is particularly relevant.

First, it involved a chain-of-command rule within a po-

lice department; second, it involved a lower echelon em-

ployee who bypassed that chain so as to avoid dealing

with the very person against whom some of his com-

plaints were based; and third, the employee brought his

complaints to an agency that already was monitoring the

activities at issue. In upholding the employee’s First

Amendment rights, the court refused to enforce the

chain-of-command rule in the absence of proof that its

application to this employee was required. In so holding,

the court recognized and was sensitive to "the plight of a

whistle-blower who wishes to report the misconduct of

her or his immediate supervisor." /d. at 668.

Likewise, the Wyoming Supreme Court’s emphasis

on the importance of loyalty, (23a, 38a), only highlights

the conflict between its approach and the prevailing rule

in the federal courts. As this Court has indicated, and

as lower federal courts have expressly held, it makes no

sense to justify a chain-of-command rule on the basis of

loyalty (even within a police department) when loyalty is

not a qualification for that employee’s position. See

Pickering, 391 U.S. at 570 (noting, as part of the Court’s

balancing test, that Pickering’s loyalty to a supervisor was

not necessary to the proper functioning of his job); Mc-

Kinley, 705 F.2d at 1115 (holding that chain-of-command

rule could not be defended on grounds of loyalty as ap-

plied in that context to a rank and file police officer);

Thomas v. Carpenter, 881 F.2d at 831 (where police

officer is a nonpolicymaker, enforcing loyalty is not criti-

cal); Schalk, 906 F.2d at 497 (chain-of-command rule is

less compulsory as applied to an accounts clerk whose

job does not require a high degree of loyalty for its

proper performance).

Indeed, the only significant difference between the

facts in Pickering and the facts in this case is the pres-

ence here of a chain-of-command rule. Otherwise, the

cases are virtually identical. In both cases, the employ-

ee’s comments did not violate any confidential or inti-

mate working relationship, nor did they interfere with

the employee’s performance of daily duties; the employ-

ee’s comments did not prevent the employer from per-

forming its public function or interfere with the services

performed by fellow employees; the employee was in a

position to obtain information not readily available to

the general public; and, to the extent that the employee’s

comments could or did cause any disruption, this result

should be anticipated whenever there exists "a difference

of opinion that clearly concerns an issue of general pub-

lic interest." Pickering, 391 U.S. at 571. In addition, the

Court noted that Pickering’s comments were made after

the position he advocated had been defeated at the

polls, and thus his expression was unlikely to impede

"the actual operation of the school system, beyond its

tendency to anger the [school] Board." /d. Similarly,

Mekss’ phone call was made after the Board of Charities

and Reform had exonerated her employer and, although

it obviously angered Geisler (who demanded an apolo-

gy), it did not impair the actual operation of the school.

Finally, as with Pickering, all that Mekss seeks is the

same right as any other taxpayer to comment on the op-

eration of a government agency, and her employer re-

mains entirely free to rebut her accusations "either via a

letter to the same [supervisory board] or otherwise.” /d.

at 572.

Given these similarities, only one conclusion is possi-

ble. Under the rationale of the Wyoming Supreme

Court, Pickering itself would have been decided different-

ly if only the employer had adopted a chain-of-command

rule. By contrast, five federal circuits have held that the

constitutionality of any chain-of-command rule must be

judged according to the Pickering standards, and that

those standards require evidence of disruption in the

workplace. Indeed, the federal courts have consistently

recognized that some disruption in the workplace is a

"foreseeable consequence" when an employee blows the

whistle on agency misconduct, and it is only when the

disruption prevents the agency from fulfilling its function

that the whistleblower may constitutionally be punished.

Conaway v. Smith, 853 F.2d 789, 791 (10th Cir. 1988).

See also Atcherson, 605 F.2d at 1063; Considine, 910 F.2d

at 701; Czurlanis, 721 F.2d at 107. As the Fifth Circuit

has succinctly observed: "[I]t would be absurd to hold

that the First Amendment generally authorizes corrupt

officials to punish subordinates who blow the whistle

simply because their speech somewhat disrupted the of-

fice." Porter v. Califano, 592 F.2d 770, 773-74 (Sth Cir.

1979). The conflicting view of the Wyoming Supreme

Court raises issues of basic First Amendment law that

only this Court can finally resolve.

Il. THE DECISION BELOW RAISES ISSUES OF

NATIONAL SIGNIFICANCE CONCERNING

THE MEANING AND SCOPE OF THIS

COURT’S DECISIONS REGARDING THE

FIRST AMENDMENT RIGHTS OF PUBLIC

EMPLOYEES

A. The Decision Below Reflects A Basic

Misunderstanding About When The

Speech Of Public Employees Relates To

A Matter Of Public Concern

As previously explained, Mekss was convinced that

the Board’s investigation inte misconduct at the Girls’

School was seriously deficient, and its report misleading.

She therefore telephoned the Board’s director to com-

plain about the Board’s investigation and described its

report as a "whitewash." (24a). It was this single act for

which she was fired.’ The Wyoming Supreme Court had

difficulty in deciding whether Mekss’ telephone call to

Sherman constituted protected speech, despite the fact

that the call dealt entirely with the adequacy of the

Board’s investigation into malfeasance at the Girls’

School. The court first stated that it was a "close deci-

sion." (27a). It then purportedly "concede[d] for pur-

poses of this case" that the content of her call involved a

matter of public interest. (28a). However, the court

later declared that Mekss had "[a] limited First Amend-

ment interest" in criticizing the Board’s investigation,

(31a), and eventually concluded that her telephone call

to the Board, unlike her initial anonymous letter, was

"not similarly protected [speech]." (38a).

This holding directly conflicts with Pickering and

Connick, which hold that protected speech relates "to

any matter of political, social, or other concern to the

community." Connick, 461 U.S. at 146. Unprotected

speech, on the other hand, concerns "matters only of per-

sonal-interest." Jd. at 147. If Pickering and Connick are

not to be eviscerated, petitioner’s speech, including her

telephone call to the Board, must be entitled to First

Amendment protection. Her speech alleged inefficient

performance of government duties. See Connick, 461

U.S. at 148 (comments related to "an agency’s efficient

performance of its duties" are normally constitutionally

protected). It alleged government malfeasance. See

Schalk v. Gallemore, 906 F.2d at 495 (allegation of public

official’s malfeasance or wrongdoing is a matter of public

concern). It criticized an agency’s handling of a griev-

ance and, in this case, of a "whitewash" investigation.

See Knapp v. Whitaker, 757 F.2d at 842 (speech concern-

ing effectiveness of grievance procedure is protected

speech). Indeed, there was no aspect of her speech that

”*Mekss’ telephone call to Sherman . . . was the specific event that

justified dismissal.” (12a).

concerned Mekss’ personai welfare or her own office

affairs.

In an apparent effort to compare favorably with this

Court’s holding in Connick, the Wyoming Supreme Court

notes that Mekss had a "personal disagreement" with the

Board’s report, (25a), and exhibited a "personal displeas-

ure" with that report during her telephone call to Sher-

man. (27a). However, the content of her expression

remained a matter of public importance. If the Wyo-

ming court’s test is allowed to stand, then only apathetic

complaints (if there are any) could be considered protec-

ted speech, because as soon as a speaker acquires a sin-

cere interest in obtaining a just result, his or her person-

al commitment disqualifies the speech from protected

status. The fallacy in this reasoning was aptly explained

by Chief Justice Urbigkit in his dissent:

This record justifies my conclusion that the

telephone call was made as a public employ-

ee speaking as a citizen and did indeed ad-

dress a matter of public concern. [Citations

omitted.] It was addressed directly to the

sufficiency of the investigation which was a

function and duty of the Board. Mekss had

nothing personal to gain by airing her con-

cerns .... The content of her statements, if

true, suggest that the Board (or the School)

was not properly discharging its duties. This

falls into the category of "[s]peech that seeks

to expose improper operation of the govern-

ment or questions the integrity of govern-

ment Officials" which "clearly concerns vital

public interests." Conaway [v. Smith], 853

F.2d [789], 797 [10th Cir. 1988].

(52a). By failing to recognize those "vital public inter-

ests," the decision below seriously threatens the free

speech rights of all public empioyees.

B. By Discounting The Importance Of "Second-

hand" Information, The Decision Below

Undermines Important First Amendment

Values

According to the Wyoming Supreme Court, its hesi-

tation in placing petitioner’s telephone call under a First

Amendment umbrella was due to the fact that "Mekss

did not have the [] necessary degree of personal knowl-

edge about the investigation . . . to know with any de-

gree of reliable certainty that the reported results were

not correct." (23-24a)(emphasis added). According to

the court below, petitioner’s comments concerning the

investigation were not protected by the First Amendment

because Mekss “had, at the most, only slight personal

knowledge of how the results of the investigation inter-

views were tabulated," (24a), that is, she lacked "first-

hand knowledge." (25a).'

This holding is a dangerous misapplication of basic

First Amendment principles. This Court has never sug-

gested that the First Amendment protects only speakers

who possess personal knowledge of the subject matter.

Few citizens, for example, have more than "slight person-

al knowledge" about the Persian Gulf War, the Tax Re-

form Act, or the Stealth Bomber. Yet many people hold

strong opinions about these public concerns. Public de-

bate would be substantially impoverished if these opin-

ions were not entitled to constitutional protection. As

this Court has stated:

At the heart of the First Amendment is the

* The dissent disputes the finding that Mekss lacked firsthand knowl-

edge that the Board’s report was inadequate, noting that the report

failed to address even her own accusations. (52a). However, this fac-

tual dispute is irrelevant for our purposes here; for the reasons ex-

plained infra, Mekss’ criticism of the report Was constitutionally pro-

tected regardless of whether it was based on firsthand or secondhand

information.

(per Rehnquist, C.J.).

recognition of the fundamental importance

of the free flow of ideas and opinions on

matters of public interest and concern.

{T]he freedom to speak one’s mind is not

only an aspect of individual liberty -- and

thus a good unto itself -- but also is essential

to the common quest for truth and the vital-

ity of society as a whole.” Bose Corp. v.

Consumers Union of United States, Inc., 466

U.S. 485, 503-504 (1984). We have there-

fore been particularly vigilant to ensure that

individual expressions of ideas remain free

from governmentally imposed sanctions.

The First Amendment recognizes no such

thing as a "false" idea. Gertz v. Robert

Welch, Inc., 418 U.S. 323, 339 (1974).

Hustler Magazine v. Falwell, 485 U.S. 46, 50-51 (1988)

In failing to apply those princi-

ples, the decision below did more than deny petitioner’s

First Amendment rights, it jeopardized the First Amend-

ment rights of public employees throughout the realm.

For

CONCLUSION

Stated above, the petition for

certioran’ should be granted.

Dated:

Respectfully submitted,

Stephen L. Pevar

(Counsel of Record)

American Civil Liberties Union

Foundation

6825 East Tennessee Avenue

Building 2, Suite 262

Denver, Colorado 80224

(303) 321-4828

Jane A. Villemez

Graves, Santini & Villemez, P.C.

408 West 23rd Street, Suite One

Cheyenne, Wyoming 82001

(307) 638-8885

October 17, 1991

APPENDIX

IN THE SUPREME COURT, STATE OF WYOMING

REGINA MEKSS, Appellant (Petitioner),

WYOMING GIRLS’ SCHOOL, STATE of WYOMING,

Appellee (Respondent).

No. 89-235.

June 12, 1991

Rehearing Denied July 24, 1991.

Jane A. Villemez, Graves, Santini & Villemez, P.C.,

Cheyenne, and Stephen L. Pevar, American Civil Lib-

erties Union, Denver, Colo., for appellant.

Joseph B. Meyer, Atty. Gen., John W. Renneisen, Depu-

ty Atty. Gen., Karen A. Byrne, Sr. Asst. Atty. Gen., for

appellee.

Before URBIGKIT, CJ, and THOMAS, CARDINE,

MACY and GOLDEN, JJ.

THOMAS, Justice.

This appeal involves the delicate balance between a

governmental employee’s right of free speech and the

authority of government officials to manage their offices.

The court must decide whether the appellant, Regina

Mekss (Mekss), was discharged unlawfully from her posi-

tion as a bookkeeper at the Wyoming Girls’ School

(School) because of the exercise of her right of free

speech, or whether she was discharged lawfully for con-

duct that was not protected. After she was discharged by

the School, Mekss appealed to the Personnel Review

Board. The Personnel Review Board approved the dis-

charge as lawful, but it ordered that Mekss be paid her

Salary and benefits for five months, a period that coin-

cides with the time during which the review was pending.

Mekss then appealed to the district court, and the

School filed a cross-appeal. The district court affirmed

the action of the Personnel Review Board with respect

to the discharge, but reversed the award of five months

pay and benefit. In her appeal to this court, Mekss seeks

reversal so that she will be reinstated and also will re-

ceive the back pay. We affirm the order of the district

court with respect to the affirmance of the action of the

Personnel Review Board in approving the discharge. We

reverse that portion of the order of the district court that

reversed the award of back pay on the ground that the

district court had no jurisdiction because the School had

no right to take its cross-appeal from the decision of the

Personnel Review Board.

In her Brief of Appellant, Mekss states these issues:

"1. Whether a public employee has the right to

speak, without reprisal upon a matter of public con-

cern to the government agency empowered to inves-

tigate and resolve the subject of that concern.

"2. Whether Wyoming Girls’ School violated Wy-

oming Personnel Rules in terminating Regina Mekss’

employment when it did not follow the successive

steps of discipline required by the Rules.

"3. Whether the Wyoming Girls’ School lacked

standing under the Wyoming Administrative Proce-

dures Act to appeal the decision of the Personnel

Review Board, which awarded Regina Mekss five

months back pay."

The School, in its Brief of Appellee, sets forth the issues

in this way:

"I. Whether a state employee can be dismissed from

employment for circumventing established lines of

authority and refusing to accept the disciplinary

measures imposed?

"II. Whether the Wyoming Girls’ School followed

the procedures of the Wyoming Personnel Rules in

terminating appellant?

"III. Whether the Wyoming Girls’ School had stand-

ing aS a party to cross-petition the decision of the

personnel review board?"

The Wyoming Girls’ School is the state institution

created by statute to provide educational, vocational, and

rehabilitative services to adolescent girls committed by

the state’s district courts. Sections 25-4-101 to -103, W.S.

1977. It is one of the state charitable, reformatory, and

penal institutions described in Wyo. Const. art. 7, §18,

which establishes the general supervision of the Board of

Charities and Reform over such institutions. The gover-

nor, the secretary of state, the state treasurer, the state

auditor, and the state superintendent of public instruc-

tion compose the Board of Charities and Reform

(Board). Section 25-1-101, W.S.1977. The Board then

appoints an executive secretary who is responsible for

evaluating and reporting the condition of all institutions

under the Board’s control. Section 25-1-103(a) and (b)

(ii), W.S.1977. The executive secretary coordinates the

activities of the Board and assists in the general supervi-

sion of operation of the state’s correctional, mental

health, nursing home and children’s institutions. The

direct supervision of the day to day operations of the

School are the responsibility of a superintendent who

also is appointed by the Board. Section 25-1-201(b)(i)

and (c), W.S.1977. The superintendent, Jack Geisler

(Geisler), was charged with primary authority to employ

and assign all personnel necessary to manage and carry

out the mission of the school. Section 25-1-201(c), W.S.

1977.

Mekss initially was employed at the school in 1984

as a night dormitory attendant. In 1985, she was trans-

ferred to the business office where she worked as a

bookkeeper. This assignment permitted Mekss to utilize

her training and her degree in accounting. Her employ-

ment evaluations indicate that her job performance in

that position was in the competent to outstanding range.

Mekss held this bookkeeping position until her dismissal

in December of 1988. Because of the significance of this

case and the very fine balance to be drawn, a detailed

chronology of the events leading to her discharge is ap-

propriate.

Beginning in 1987, the School experienced some

problems with a few employees, particularly those who

worked on the night shift. Those problems included em-

ployee dissatisfaction, intimidation of newer employees,

and disregard for school policies. In March of 1988,

Geisler became aware that a group of employees had

held a meeting off campus to discuss concerns about

conditions at the School. Geisler then issued a memoran-

dum that invited members of the staff to come and dis-

cuss their concerns with him or with Assistant Superin-

tendent Gary Kopsa (Kopsa).

Through the spring and summer of 1988, the prob-

lems continued and, on June 25, 1988, two employees

sent an anonymous letter to K. Gary Sherman (Sher-

man), Executive Secretary of the Board of Charities and

Reform. That letter set forth in detail concerns about

staff morale, discriminatory promotion practices, the use

of corporal punishment, and criticism of management at

the school. Sherman advised Geisler about this letter

and requested Geisler to submit a response. On July 26,

Geisler sent his response to the Board, and copies were

circulated among all employees at the School. Sherman

found Geisler’s response to be a satisfactory explanation

of conditions at the School and an exoneration of any

wrongdoing on the part of management.

After that, the Board received several more anony-

mous letters that included one written by Mekss on

_ August 12, 1988. Statements in the anonymous letter

authored by Mekss that are relevant to this proceeding

include the following:

"There are grave problems in administration here at

the Wyoming Girls’ School which are growing pro-

gressively worse and which are very negatively affec-

ting the morale and performance ability of the staff

and, ultimately, quality of service rendered by this

agency.

*- e*+ e@ @

"There is a vast difference between executive prerog-

ative in favoring those who one perceives as hard-

working (as Mr. Geisler states in his letter) and out-

right harassment of those who question, express a

difference of perception, or offer suggestions (which

is what Mr. Geisler actually does). I reiterate that

many staff members would reinforce stated concerns

and add many more if they were not totally intimi-

dated. But precedents already exist of Girls’ School

employees who have been relentlessly harassed into

submission, some even to the point of (early) retire-

ment.

ses e@ @

"None of us cares for the unpleasantness of the sit-

uation nor for dealing with the problems via anon-

ymous letters. I, myself, have had moments of delu-

sion almost\ yearning to go to Jack Geisler offering a

proposal of what the problem might be and possible

suggestions so that this entire mess could be cleared

up simply, quickly, finally, but one has only to sit

through one or two uncensored staff meetings (a

Stinted event in the words of one teacher), attempt

to resolve a problem in a supervisors’ meeting (and

we are talking very non-threatening language here),

or be involved in some crisis before it becomes un-

deniably crystal clear that Jack Geisler will listen to

the input of only a select few ‘fair haired boys’ and

members of the ‘Boys’ Club’ without question and

‘Nn

that he consistently will not even allow for presenta-

tion of another point of view or the other side of the

story. * * * It seems that Mr. Geisler thinks there is

no need for correction or room for improvement in

this position ever! (Emphasis in original.)

x**x © *

"It is not appropriate to have an administrator inca-

pable of offering feedback to or correcting staff in a

dignified manner.

see &

"Even favored members of the “Boys’ Club" have

questioned Jack’s judgment in several instances. |

think most staff members would agree that the man

has lost his objectivity, that perhaps he has grown

tired or lazy after all these years, that he looks for

the easy way out, that we are working with tools

from the Dark Ages.

xs * * & *

"I do not know how these problems could have been

dealt with in any other fashion in the current system.

The grievance process is not workable in this situa-

tion. What subordinate can ever go to a boss and

tell them they are making a mistake and especially

in this situation where Mr. Geisler has made it

abundantly clear that he does not take suggestions

well, even those couched in the most non-threaten-

ing language?"

Sherman and the Board then concluded that it

would be necessary to have an investigation at the

School to verify the existence of any of the alleged im-

proprieties. The corrections administrator for the state,

who was Geisler’s immediate supervisor, and the warden

at the Women’s Center were assigned to conduct a two-

day investigation. That investigation was conducted on

August 24 and 25, 1988, and each employee at the

School was allocated fifteen minutes to meet individually

with the investigators and present any concerns.

The results of the confidential investigation were

summarized in a letter from Sherman to Geisler dated

August 26, 1988. In part, that letter advised Geisler:

"As you know you have been the target of several

anonymous letters sent to the five elected officials

and myself.

"To settle the issues raised by the allegations in

those letters, I asked * * * [the] corrections adminis-

trator, and * * * [the] Warden of the Wyoming

Women’s Center to conduct a confidential interview

with each employee at the Wyoming Girls’ School.

"The results of this investigation indicate the follow-

ing:

You have the overwhelming support of your

staff.

Your staff to a person believe that this program

is beneficial to the girls it serves.

No one admitted writing the anonymous letters.

(Emphasis in original.)

No one demonstrated any proof of the anony-

mous allegations. There were six (6) employees who

expressed universal dissatisfaction."

Sherman’s conclusion was that "the allegations were

spurious, mean spirited and without substance.” As a

product of the investigation, however, several changes

were made in schedules for the night shift staff. Sherman

did request that Geisler post copies of his letter so that

the staff of the School would be aware of the results of

the investigation.

On September 9, 1988, a scheduled staff meeting

was held for all of the employees at the School, and

Mekss attended that meeting. At the meeting, Geisler

presented a speech that he had prepared emphasizing

the mission of the School, the importance of honesty,

harmony, trust, and mutual respect among employees,

and he reminded everyone of his memorandum dated in

March that invited the staff to discuss their ideas and

concerns with him.

In the month of November, the Board met at the

School, pursuant to the statutory duty of the Board to

make personal inspections of all state institutions at least

once every year. Section 25-1-104(b), W.S.1977. During

the course of this visit, Secretary of State Kathy Karpan

met with Mekss and several other disgruntled employees.

At that meeting, the employees expressed concern that

the investigation had not been fair and complete and

that the results were inaccurate. Karpan’s response to

their concerns was the suggestion that the employees

contact Sherman about their complaints. On November

23, 1988, Mekss, apparently following up that suggestion,

attempted to call Sherman to discuss the investigation.

Sherman was not able to talk with Mekss when she

called, but he asked the corrections administrator to

return her call. When he called, Mekss refused to discuss

her concerns with the corrections administrator since he

had conducted the investigation that she was calling to

complain about. After their conversation, the corrections

administrator called Geisler to inform him of Mekss’ call

to Sherman and the return of that call to Mekss.

On November 30, 1988, Mekss, Geisler, Kopsa, and

Mekss’ immediate supervisor in the business office met

to discuss the Mekss telephone conversation with the

corrections administrator. Mekss was asked if she had

tried to call Sherman about a school matter, and her

reply was that her call did not concern school matters.

After the meeting, Mekss and the other participants

signed a memorandum, prepared by Geisler’s secretary

that memorialized the essence of the meeting. The con-

cluding statement was:

"Jack Geisler stated that if there were concerns

about the Girls’ School, that they should FIRST be

expressed to * * * [Mekss’ immediate supervisor],

Gary Kopsa or himself. Regina stated that she had,

in fact, stated her concerns through the proper chan-

nels." (Emphasis in original.)

After that meeting, but also on November 30, 1988,

Mekss did succeed in contacting Sherman to discuss her

concerns about the investigation.’ In the course of that

telephone conversation, Mekss, for the first time, dis-

closed to Sherman that she had written one of the anon-

ymous letters. At some point in that conversation, Sher-

man told Mekss that she was at risk for violating the

chain of command and that he intended to inform Geis-

ler of her call. The next day, Sherman did telephone

Geisler to inform him of the conversation with Mekss.

On December 5, 1988, Geisler and Mekss met to

discuss the most recent telephone call from Mekss to

Sherman. Geisler again asked Mekss about her concerns

with respect to the School. There is a discrepancy as to

Geisler’s and Mekss’ several perceptions of her response.

Geisler said that Mekss told him only that she wished to

' There is a discrepancy in the record as to whether Mekss called

Sherman the same day, November 30, or the following day, December

1. Hearing Exhibit A-13, consisting of Geisler’s notes of a December

1, 1988 phone call from Sherman indicate that Mekss called Sherman

on the evening of November 30. Mekss testified that she called Sher-

man the following day, December 1. Regardless of whether the call

was made on November 30 or December 1, the fact that the call oc-

curred shortly after Mekss’ November 30 meeting with Geisler is sig-

nificant.

* Sherman insisted in his hearing testimony that he informed Mekss of

her "risk" in violating the chain-of-command at the very outset of their

conversation. Mckss testified that the warning came much later in the

hour-long conversation.

make things better and that her call to Sherman had to

do with the investigation. In her testimony, Mekss stated

that she told Geisler about her concerns with staff mo-

rale and that he was receptive to this information. In any

event, Geisler advised Mekss that she would be disci-

plined for insubordination. He presented Mekss with

three options: (1) she would resign from her position; (2)

she would accept a two-week suspension and write a let-

ter of apology addressed to those people who had re-

ceived and who had been affected by her anonymous let-

ter; or (3) she would be dismissed. Mekss elected to pur-

sue the second option, and she wrote a letter of apology

that she submitted to Geisler the same day. The letter of

apology drafted by Mekss was addressed to the governor,

Sherman, the other members of the Board of Charities

and Reform, and the School staff, and it said:

"I am the writer of one of five anonymous letters by

as many different authors written to the Board about

the Girls’ School last summer. My intention in writ-

ing was to convey problems which I had experienced

personally, been witness to, and about which many

Girls’ School staff had shared common concern or

frustration.

"Tam sorry:

"1). that things came to such a sorry state of affairs

that I felt I could not in good conscience let go un-

challenged, 2). that I thought I could do anything to

help fix it, 3). for any personal suffering Jack Geisler

might have experienced in this, 4). that Girls’ School

staff members as a whole might have experienced in-

tensified upheaval;

"but,

"1). I saw no other avenues, and 2). I know that the

upheaval had already been affecting us for at least

several years and that it still appears to be with us.

10a

"It was never my hope to see Jack’s ‘head roil’ or

that he be publicly smeared. My only hope was that

the Board, being in a position to do so, would seek

comprehensive information and make quiet improve-

ment or correction through objective adjustment. |

think that it would be safe to say the same about the

other writers as well.

"I still do not, to this day, believe that I could have

approached this situation from within this agency

without reprisal and I challenge the conclusion of

this summer’s investigation that no allegations were

found to be substantiated because it directly contra-

dicts information which I know I presented.

"I acknowledge that the tone of my letter was nasty

in a few places -- and for this I apologize -- but still

assert that its substance was true."

The following day, Geisler returned the letter advising

Mekss that it was not an acceptable apology.

On December 7, 1988, Geisler and Mekss met one

more time to discuss her letter of apology and the status

of her disciplinary options. They were unable to resolve

their differences, and Mekss indicated that dismissal

seemed to be the only alternative. Geisler then wrote

Mekss a letter of notification of dismissal and suspended

her with pay for ten working days. On December 21,

1988, Geisler advised Mekss’ attorney of her dismissal

effective upon that date.

The notice of termination that was furnished to

Mekss listed two reasons for her dismissal. They were

(1) attempts to endanger the peace and safety of others

by writing unsubstantiated accusations that are disruptive

to the good of the service; and (2) insubordination by

circumventing established lines of authority while refus-

ing attempts to counsel and refusal to accept disciplinary

measures imposed. The misconduct set forth as the

grounds for Mekss’ dismissal in Geisler’s December 7,

lla

1988 notice of intention for dismissal were "circumvent-

ing established lines of authority and refusing to accept

disciplinary measures imposed." In responding to Mekss’

petition for review before the Personnel Review Board,

the School gave these two reasons for dismissal:

"(a) circumventing established lines of authority.

"(b) refusing to accept disciplinary measures im-

posed."

In testifying about the first reason for dismissal in

the December 21 notice of termination, Geisler said that

"attempts to endanger the peace and safety of others by

writing unsubstantiated accusations that are disruptive to

the good of the service" was inserted at the suggestion of

the Wyoming Attorney General’s office. That ground was

not something Geisler was concerned with when he

wrote the December 7 letter of notification of dismissal.

Geisler also testified that Mekss’ telephone call to Sher-

man shortly after the November 30, 1988 meeting be-

tween himself and Mekss circumvented established lines

of authority and was the specific event that justified dis-

missal. Geisler further stated that, in his view, Mekss’

failure to provide an acceptable letter of apology consti-

tuted refusal to accept "disciplinary measures imposed."

Mekss then requested a hearing before a "personnel

review board," pursuant to the Wyoming Admunistrative

Procedure Act, §16-3-101 to -115, W.S.1977. Such per-

sonnel appeal hearings for state employees are con-

ducted by a three-member personne! review board panel

pursuant to §9-2-1019(a), W.S. 1977. The personnel re-

view board, by definition, is an "agency" within the De-

partment of Administration and Fiscal Control (§9-2-

1002(a)(i), W.S.1977), and, consequently, such proceed-

ings must be conducted in accordance with the Wyoming

Administrative Procedure Act. The request for a hearing

before a personnel review board was granted by the

School, and the two-day hearing was held in May, 1989.

12a

After the hearing, the Personnel Review Board filed its

decision with the personnel division of the Department

of Administration and Fiscal Control.

The findings of fact and conclusions of law made by

the Personnel Review Board are:

"Findings of fact:

"1. Ms. Mekss had a good to excellent work record

as a Fiscal Control Technician. She appeared to

have good rapport with and be liked by her fellow

workers.

"2. Ms. Mekss was apparently self-appointed to call

attention to the issues set forth in the anonymous

letters, one of which she authored.

"3. Ms. Mekss failed to exhaust the normal personnel

system options by taking issues directly to Mr. Geis-

ler prior to proceeding in the manner in which she

did.

"4. Ms. Mekss should have immediately ended the

11/30/88 telephone conversation with Mr. K. Gary

Sherman once she was advised she was at risk in

pursuing the issues as she was, even though that

avenue had initially been invited by Ms. Kathy Kar-

pan.

"5. Mr. Geisler applied some sort of discipline in

some manner to Ms. Mekss between March and

December, 1988.

"6. Both Ms. Mekss and Mr. Geisler failed to allow

the issues to be aired directly and failed to weigh

the full consequence of their actions. Boih parties at

times acted hastily and improperly and directly con-

tributed to the dismissal.

"Conclusions:

"1. Ms. Mekss created disharmony in the function of

13a

the Wyoming Girls’ School and circumvented estab-

lished lines of authority.

"2. Mr. Geisler did not fully comply with the DAFC

Personnel Rules and Regulations in his application

by consistent, well-defined, and progressive discipli-

nary measures prior to his dismissal of Ms. Mekss.

"3. Ms. Mekss’ request for reinstatement as Fiscal

Control Technician is denied as not being in the best

interests of either party or the overall functioning of

the Wyoming Girls’ School.

"4. The Wyoming Girls’ School should remunerate

Ms. Mekss five (5) months salary (and associated

benefits). The remuneration should be based upon

Ms. Mekss’ salary at the time of her dismissal. This

compensation should constitute full and complete

settlement. |

"5S. Mr. Geisler and Ms. Mekss should accept the

above Conclusions, refrain from further actions re-

lated to these Conclusions and allow the dedicated

and competent staff of the Wyoming Girls’ School to

concentrate on activities which are of direct service

to the School’s residents and which are in direct ful-

fiillment of the mission of the Wyoming Girls’

School."

Even though the Personnel Review Board ruled against

Mekss’ request for reinstatement, the Board did decide

that Mekss was entitled to receive five months back pay

and associated benefits.

Mekss petitioned the district court for review of the

Board’s decision pursuant to §16-3-114, W.S.1977. In

addition to asserting the erroneous nature of the Board’s

decision, Mekss also asserted that the decision failed to

set forth specifically detailed findings of fact to support

the ultimate facts and the Board’s conclusions of law.

The School in turn sought review of the award of the

l4a

five months back pay asserting that the award was arbi-

trary, capricious, an abuse of discretion, in excess of the

Board’s statutory authority, and unsupported by substan-

tial evidence. The district court heard arguments, re-

viewed the record, and entered an order affirming

Mekss’s termination, but reversed the decision of the

Personnel Review Board to remunerate Mekss’ with five

months back pay and benefits. Mekss then appealed to

this court.

The primary focus of Mekss’ appeal is whether her

dismissal constituted an infringement of her "constitu-

tionally protected interest in freedom of expression."

Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684,

1687, 75 L.Ed.2d 708 (1983). The First Amendment to

the Constitution of the United States guarantees free-

dom of speech to all citizens as a fundamental right.

This constitutional limit upon restricting free speech is

applied to state agencies and state officials by virtue of

the "privileges or immunities" clause of the Fourteenth

Amendment to the Constitution of the United States.’

Article 1, Section 20, of the Constitution of the State of

Wyoming also guarantees to every person the right of

* The First Amendment to the Constitution of the United States pro-

vides, in pertinent part:

“Congress shall make no law * * * abridging the freedom of

speecn. ** * .”

* The Fourteenth Amendment to the Constitution of the United States

provides:

"All persons born or naturalized in the United States and subject

to the jurisdiction thereof, are citizens of the United States and

of the State wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State deprive any person

of life, liberty, or property, without due process of law; nor deny

to any person within its jurisdiction the equal protection of the

laws.”

1Sa

freedom of speech.’ In Cheyenne Airport Board v. Rogers,

707 P.2d 717, 726 (Wyo.1985), appeal dismissed 476 U.S.

1110, 106 S.Ct. 1961, 90 L.Ed.2d 647 (1986), this court,

citing PruneYard Shopping Center v. Robins, 447 U.S. 74,

100 S.Ct. 2035, 64 L.Ed.2d 741 (1980), recognized the

principle that:

"State constitutions may add to [United States consti-

tutional] limitations and may be more protective of

individual liberties. They may not, however, under

the dictates of supremacy, be less protective."

The constitutional right of free speech, however, is not

an absolute right. Arnett v. Kennedy, 416 U.S. 134, 94 S.

Ct. 1633, 40 L.Ed.2d 15, reh. denied 417 U.S. 977, 94 S.

Ct. 3187, 41 L.Ed.2d 1148 (1974); Allen v. Safeway Stores,

Inc., 699 P.2d 277, 283 (Wyo.1985).

[1] We turn first to the constitutional claims as-

serted by Mekss. It is our duty to review the action of

the Board and, if it is found to be contrary to a constitu-

tional right, we must set aside the Board’s decision. Sec-

tion 16-3-114(c)(ii)(B), W.S.1977. The Personnel Review

Board heard testimony, received evidence, and was

briefed by counsel from both sides on the constitutional

issues present in the case.° The Board, of course, was

* Article 1, §20, of the Constitution of the State of Wyoming reads:

"Every person may freely speak, write and publish on all subjects,

being responsible for the abuse of that right-, and in all trials for

libel, both civil and criminal, the truth, when published with good

intent and jfor] justifiable ends, shall be a sufficient defense, the

jury having the right to determine the facts and the law, under

direction of the court.”

* In opening statements to the Personnel Review Board, both counsel

framed the basis for Mckss’ dismissal in terms of protected or unpro-

tected speech. Counsel indicated that the Board would be instructed

on the constitutional issues and law during closing arguments after it

had heard the evidence. At the end of the hearing, however, both

(continued...)

l6a

foreclosed from a determination as to the constitutionali-

ty of the dismissal by the School. See Belco Petroleum

Corp. v. State Board of Equalization, 587 P.2d 204 (Wyo.

1978). Essentially, its review was limited to a determina-

tion as to the sufficiency of the evidence to justify the

discharge by the School. The circumstances of this case

demonstrate the wisdom of the rule because this Board

consisted of non-attorneys who were acting without the

benefit of legal counsel. It, indeed, would be hazardous

to afford to such a body the authority to decide sensitive

questions of constitutional law, which this question in-

deed is.

The Supreme Court of the United States has dis-

cussed the role of an appellate court in reviewing a

determination of first amendment issues by a trial court

and said:

"“* * * (W]e are compelled to examine for ourselves

the statements in issue and the circumstances under

which they are made to see whether or not they

* * * are of a character which the principles of the

First Amendment, as adopted by the Due Process

Clause of the Fourteenth Amendment, protect.’

Connick, 461 U.S. 138, 150, n., 103 S.Ct. 1684, 1691,

n., quoting Pennekamp v. Florida, 328 U.S. 331, 335,

66 S.Ct. 1029, 1031, 90 L.Ed. 1295 (1946).

The following year, the Supreme Court of the United

States supplemented this concept in this way:

"* * * (I]n cases raising First Amendment issues we

have repeatedly held that an appellate court has an

obligation to ‘make an independent examination of

the whole record’ in order to make sure ‘that the

judgment does not constitute a forbidden intrusion

° (...continued)

sides waived their opportunity to make closing arguments to the

Board.

17a

on the field of free expression.’ New York Times Co.

v. Sullivan, 376 U.S. [254], at 284-286, 84 S.Ct. [710],

at 728-729 [11 L.Ed.2d 686 (1964)]." Bose Corp. v.

Consumers Union of United States, Inc., 466 U.S. 485,

499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984).

We accept these principles as applicable to our review of

the action of the Personnel Review Board.

[2] Mekss relies upon a series of cases from the

Supreme Court of the United States that address a pub-

lic employee’s right of free speech. In the course of these

cases, a sequential test has been developed and refined

to assist in the determination as to whether a public em-

ployer has impermissibly infringed upon the constitution-

al right to free expression enjoyed by an employee. Re-

cently, that test was summarized in Schalk v. Gallemore,

906 F.2d 491, 494-95 (10th Cir. 1990):

"First, the court must decide whether the speech at

issue touches on a matter of public concern. Con-

nick, 461 U.S. at 146, 103 S.Ct. at 1689; Melton [v.

City of Oklahoma City], 879 F.2d [706] at 713 [(10th

Cir. 1989)]. If it does, the court must balance the

interest of the employee in making the statement

against the emiployer’s interest ‘in promoting the ef-

ficiency of the public services it performs through its

employees.’ Pickering v. Board of Educ., 391 USS.

563, 568, 88 S.Ct. 1731, 1735, 20 L.Ed.2d 811 (1968).

Third, if the preceding prerequisites are met, the

speech is protected, and plaintiff must show her ex-

pression was a motivating factor in the detrimental

employment decision. Mount Healthy City School

Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576,

50 L.Ed.2d 471 (1977). Finally, if the plaintiff sus-

tains this burden, the employer can still prevail if it

shows by a preponderance of the evidence that it

would have made the same decision regardless of

the protected speech."

18a

We are Satisfied that this sequential test is useful to us

in deciding whether Mekss’ constitutionally protected

right of free speech was infringed by her dismissal from

employment at the school.

Before applying the sequential test, we differentiate

between two s2parate, but related instances of expression

by Mekss. The first is found in the anonymous letter

written to the Governor and other members of the

Board. That letter set forth Mekss’ perception of condi-

tions at the School with regard to alleged mismanage-

ment, poor morale, discriminatory employment practices,

and improper use of corporal punishment. That letter

was instrumental in convincing the Board to conduct an

investigation at the School. After that investigation was

completed and the results released, a second communi-

cation was initiated by Mekss. She contacted the execu-

tive secretary of the Board and expressed her dissatisfac-

tion with the results of the investigation. It was following

her complaints to Sherman that Mekss was dismissed for

insubordination. The charge of insubordination was

based upon Mekss’ circumvention of established lines of

authority and her failure to comply with disciplinary

measures imposed by Geisler.

Mekss has argued that both the letter and the tele-

phone calls constituted protected free speech. She con-

tends that, as a "whistle blower,” she is entitled to the

highest level of constitutional protection. We have re-

viewed this record in detail as well as the cases relating -

to the constitutional principles, and we conclude that

these two instances of expression are different and justify

separate analysis.

[3] We agree with, and accept, Mekss’ contention

that she was "blowing the whistle" when she directed her

anonymous letter to the Board of Charities and Reform.

"When balancing the rights of the employee against

those of the employer, an employee’s First Amend-

19a

ment interest is entitled to greater weight where he

is acting as a whistle blower in exposing government

corruption. See Foster v. Ripley, 645 F.2d 1142, 1149

(D.C. Cir. 1981). Speech that seeks to expose im-

proper operations of the government or questions

the integrity of governmental officials clearly con-

cerns vital public interests." Conaway v. Smith, 853

F.2d 789, 797 (10th Cir. 1988).

It would overstate the matter to suggest that Mekss was

"exposing government corruption" per se, but she was at-

tempting to draw attention to "improper operations” at

the School. We conclude that the anonymous letter

should be afforded the highest level of constitutional

protection in accordance with the applicable principles

of law.

[4] Continuing to address the-anonymous letter, we,

for purposes of this opinion, assume, without deciding

and only for the purpose of this opinion, that Mekss’ let-

ter deals with a matter of public concern and that her

interest in making the statement outweighs the interest

of the School in preventing the statement. This brings us

to the third step in the constitutional analysis. At this

juncture, Mekss must accept the burden of establishing

that her letter was a "substantial or motivating factor” in

her dismissal. Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.

2d 471 (1977). Geisler testified, on cross-examination,

that he dismissed Mekss not for writing the anonymous

letter, but rather for her telephone calls to Sherman and

for her subsequent refusal to comply with disciplinary

proceedings. We quote from the cross-examination of

Geisler by Mekss’ attorney at the hearing:

"Q. Excuse me. Let me clear that up. Would you tell

us the precise reason why Regina Mekss was dis-

missed?

"A. For circumventing lines of authority, for ignoring

20a

agency guidelines, for refusing to accept counsel and

discipline.

"Q. And, sir, the circumventing established lines of

authority, that would be the telephone call to Gary

Sherman, correct? That’s the specific act?

"A. Yes.

"Q. The phone cail around December Ist, to give it

a date?

"A. After we had had our first talk.

« * « & *

"Q. * * * And the refusal to accept disciplinary

measures imposed, * * * that’s her failure to give

you the correct letter of apology, to put it in a nut-

Shell; isn’t it?

"A. Yes.

"Q. And you have nothing else to add to those two

points; do you?

"A. No.

"Q. And, sir, the charge of circumventing established

lines of authority is based upon your perception that

she should have brought .concerns that she had

through proper channels; is that correct?

"A. Yes, yes.

"Q. And because, in your perception, she did not,

she was fired? Is that correct?

"A. Yes.

"(Counsel]: That’s all the questions I have of Mr.

Geisler."

There is no evidence in the record to refute Geisler’s

testimony.

The reason stated in the notice of dismissal and an

analysis of the findings and conclusions of the Personnel

Review Board persuade us that Mekss was not dismissed

for writing an anonymous letter. Mekss vigorously argues

for a contrary inference, but that contrary inference was

not adopted by the finder of fact, the Personnel Review

Board. Since no other evidence was presented that re-

futes Geisler’s testimony, Mekss failed to satisfy her

burden under Mt. Healthy.

If we assume, for the sake of argument, that the

anonymous letter was one of several factors contributing

to Mekss’ dismissal, the factually similar case of Warner

v. Town of Ocean City, 81 Md.App. 176, 567 A.2d 160

(1989), becomes pertinent. Warner, an Ocean City police

officer, wrote an anonymous letter to the mayor and city

council urging an investigation of the newly appointed

police captain’s alleged unethical and illegal activities.

After Warner’s identity was disclosed, an administrative

hearing board made findings of fact and determined that

Warner was "guilty" of insubordination. Upon review of

the administrative proceeding, the lower court reversed

all but two of the five "charges" against the officer, but it

did affirm the board’s determination that the officer had

been insubordinate. The issues on appeal to the appel-

late court were substantially similar to those in this case.

In Warner, the appellate court addressed the consti-

tutional question under the four-step test set forth above.

The court noted that the issue had not been litigated be-

fore the administrative board and, like this case, that is-

sue was decided for the first time on appeal. The court

recognized the considerable importance of discipline,

harmony, and loyalty in a law enforcement organization,

and it concluded that Warner’s right to free speech had

not been violated. The language of the Maryland court is

especially instructive:

"(W]e think it significant that Lieutenant Warner

*** had access to legitimate procedural mecha-

22a

nisms for airing his grievances. Had he utilized the

appropriate channels, of which he admits he was

aware, he could have brought Major Crone’s alleged

misconduct to light without exposing himself to the

risk of disciplinary action. In this regard, we agree

with Judge Eshenburg, the trial judge, who stated, in

a well reasoned discussion on the constitutional

aspects of this case: ‘It was not the contents of the

letter that resulted in [Warner’s] demotion, rather [it

was] the means employed * * * in the letter’s publi-

cation and his admitted violation of Rules and Regu-

lations.” Warner’s punishment resulted from ‘the

place, means and unusual manner in which he chose

to speak.” Warner, 567 A.2d at 168.

The School here is much like the police department in

Warner, and the same degree of discipline, harmony, and

loyalty on the part of its employees is a justified expecta-

tion in order for the School to accomplish its mission.

[5] Turning to Mekss’ claim that the telephone calls

to Sherman deserve "whistle blower" status, we first con-

sider the level of constitutional protection afforded at

that juncture. Mekss’ contentions are premised upon her

perception that the anonymous letter and the telephone

calls were indistinguishable ways of expressing essentially

the same information. Thus, she concludes they should

be entitled to the same constitutional consideration. We

do not accept that contention.

In marked contrast to the assertions set forth in her

anonymous letter, Mekss did not have the same neces-

sary degree of personal knowledge about the investiga-

tion to justify her claimed "whistle blower" status in

making her phone calls. See Hughes v. Whitmer, 714 F.2d

1407, 1423 (8th Cir. 1983), cert. denied sub nom. Hughes

v. Hoffman, 465 U.S. 1023, 104 S.Ct. 1275, 79 L.Ed.2d

680 (1984). She presented no evidence that the results of

the investigation were incomplete or inaccurate. While

Mekss had personal knowledge of those things she ad-

23a

dressed in her anonymous letter, she had, at the most,

only slight personal knowledge of how the results of the

investigation interviews were tabulated. She argues that

as many as eighteen of her fellow employees agreed the

investigation was a "whitewash," but the fact that the in-

vestigation was flawed is simply speculation on her part.

The results indicated that six employees were “universal-

ly dissatisfied" with conditions at the School. Regardless

of what her fellow employees told her about their com-

ments to the investigators, Mekss simply was not in a

position to know with any degree of reliable certainty

that the reported results were not correct. In the absence

of other evidence, her speculation is not adequate to

overcome the presumption that the investigation was

properly conducted and reported.

We conclude that Mekss’ telephone calls to Sherman

did not acquire automatic "whistle blower" protection

and, in that light, we apply the sequential test summa-

rized in Schalk, 906 F.2d 491. In determining the extent

of the constitutional protection afforded Mekss, we first

consider whether the speech touches on a matter of pub-

lic concern. Our evaluation of that question demands

analysis of the "content, form, and context" of the state-

ment as revealed by the whole record. Connick, 461 U.S.

138, 146, 103 S.Ct. 1684, 1689. If the content of the

speech focuses on disclosing public officials’ wrongdoing,

it is more likely to be considered a matter of public con-

cern. Wulf v. City of Wichita, 883 F.2d 842 (10th Cir.

1989). Conversely, speech is not entitled to protection as

a general matter if the point is simply to air grievances

of a purely personal nature. The pertinent inquiry in this

regard becomes whether the employee is speaking as a

citizen about a matter of public concern or as an em-

ployee addressing a matter of personal interest. Connick.

In relation to the telephone calls, the United States

Supreme Court recognized in Connick, 461 U.S. 138 at

146, 103 S.Ct. 1684 at 1690 that:

24a

"* * * When employee expression cannot be fairly

considered as relating to any matter of political,

social, or other concern to the community, govern-

ment officials should enjoy wide latitude in manag-

ing their offices, without intrusive oversight by the

judiciary in the name of the First Amendment."

It is arguable here as to whether these telephone calls

touched upon matters of public concern. Mekss’ position

is that the product of any investigation of a state institu-

tion is a matter of public concern since the entire state

has an interest in an institution like the School. The

School argues, to the contrary, that Mekss’ telephone

calls to Sherman did not involve a legitimate matter of

public concern. The record demonstrates that, before

these telephone calls were made, the issues that had

been raised in Mekss’ anonymous letter had been exam- ©

ined in what the record discloses to have been a thor-

ough and comprehensive investigation. The summarized

results of the investigation by the Board of Charities and

Reform had been publicized. The telephone calls that

Mekss made as a follow up reflect her personal disagree-

ment with the way the investigation was pursued and

with its results.

The record also demonstrates that the interview

process by which the investigation was pursued was stan-

dardized, and the same questions were asked of each

School employee. All of the School employees were in-

volved; the interview process was not a sample of the

employees. The reliability and validity of such a process

generally is quite high, and it should be given substantial

weight. The results of that investigation do not indicate

that everything was perfect at the School; in fact, the

report noted six “universally dissatisfied" employees.

Mekss, however, did not have firsthand knowledge of

what other employees told the investigators. Certainly,

the possibility exists that they reported something entire-

ly different to Mekss than what they actually told the in-

25a

vestigators.’ Examined in the light of these factors, there

is little in the record to indicate that the information

Mekss wanted to convey to Sherman in the telephone

calls actually touched upon a matter of public concern.

Connick, 461 U.S. 138, 103 S.Ct. 1684. Other than

Mekss’ contention, which is not objectively supported,

there is no substantive evidence in the record that the

results of the investigation were inaccurate or that the

investigative process was flawed.”

” An example of how different communications may be made in dif-

ferent contexts is shown by Mekss’ own performance evaluations. One

of her complaints about the School was the lack of communication

and the unresponsiveness of management to employee concerns. This

issue was raised numerous times in the course of the hearing. Yet, the

two formal performance evaluations admitted into evidence at her

hearing contain these comments from Mekss under the heading "Em-

ployee Comments”:

“An atmosphere of open communication and high degree of ac-

cessibility to my superiors has greatly enhanced my ability to per-

form and is greatly appreciated.” Mekss’ Performance Appraisal

dated January 29, 1987.

"This evaluation is very generous. I do not believe that I could do

my job as well if not for the openness, honesty, direct communi-

cation, expertise, understanding & encouragement of my super-

visor.” Mekss’ Performance Review Report dated August 23,

1988. [This was written by Mekss eleven days after she wrote her

anonymous letter to the Board of Charities and Reform and dur-

ing the same period of time that the Wyoming Girls’ School in-

vestigation was going on!]

These comments which were part of the record before the Personnel

Review Board, even though they were not discussed at that hearing,

do not manifest complaints from someone who, in another context,

claimed harassment, intimidation, and total lack of managerial open-

ness. Mekss herself was sending mixed signals with respect to her job

satisfaction and the conditions at the School.

* The Personnel Review Board established a rather strict and quite

narrow forum for the parties to argue the merits of Mekss’ dismissal.

The Board clearly stated that it was not inclined to hear testimony or

examine evidence that did not tie directly to whether there was due

(continued...)

26a

Whether speech involves a matter of public concern

ultimately is a question of law. Rankin v. McPherson, 483

U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315, reh’g denied

483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 819 (1987). One

interpretation of this record is that Mekss’ phone calls

were not based on public-spirited concern but, instead,

were motivated by her personal displeasure with the re-

sults of the investigation or even some other motive. See

Leiphart v. North Carolina School of the Arts, 80 N.C.

App. 339, 342 S.E.2d 914 (1986), cert. denied 318 N.C.

507, 349 S.Ed.2d 862 (1986). It is equally unclear wheth-

er the point of Mekss’ telephone calls was to bring

wrongdoing to light or to further a purely private inter-

est. Hesse v. Board of Education of Township High School

District No. 211, Cook County, Illinois, 848 F.2d 748 (7th

Cir. 1988), cert. denied 489 U.S. 1015, 109 S.Ct. 1128, 103

L.Ed.2d 190; reh’g denied 490 U.S. 1059, 109 S.Ct. 1973,

104 L.Ed.2d 442 (1989). It is a close decision as to

whether the telephone calls pass the first constitutional

hurdle.

[6] On this score, also, we will assume, without

deciding, that Mekss did satisfy her burden and that the

calls do meet the requirements of the first step in the

constitutional analysis that a matter of public concern be

involved. In part, this benefit of the doubt is afforded

because Mekss was constrained by the requirements of

the Personnel Review Board from presenting evidence

concerning inaccuracies in the investigation. We also

note that there is no record of whether this issue was

* (...continued)

- cause for dismissal and whether proper dismissal procedures were fol-

lowed. Thus, Mekss’ counsel may have been dissuaded from present-

ing whatever evidence Mekss had regarding inaccuracies or umpropri-

etics in the product of the investigation. Sull, counsel had the ob-

ligation to the client to attempt to present such evidence if it was per-

ceived as relevant, and to make a timely objection should the Board

have refused its admission.

2/a

argued and decided by the district court. Having con-

ceded for purposes of this case that the telephone calls

involved a matter of public concern, we then pursue the

second step in the analysis, the Pickering balance.

The balance described in Pickering requires that the

interests of an employee as a citizen commenting upon

matters of public concern be weighed with the interests

of the State as an employer in promoting the efficiency

of the public service it performs to its employees. Picker-

ing v. Board of Education of Township High School Dis-

trict 205, Will County, Illinois, 391 U.S. 563, 88 S.Ct.

1731, 20 L.Ed.2d 811 (1968). The United States Supreme

Court discussed this balancing test in Rankin, 483 U.S. at

384, in this way:

"The determination whether a public employer has

properly discharged an employee for engaging in

speech requires ‘a balance between the interests of

the [employee], as a citizen, in commenting 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 employ-

ees.’ Pickering v. Board of Education, 391 U.S. 563,

568, 88 S.Ct. 1731 [1734-35] 20 L.Ed.2d 811 (1968);

Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684

[1686], 75 L.Ed.2d 708 (1983). This balancing is nec-

essary in order to accommodate the dual role of the

public employer as a provider of public services and

as a government entity operating under the con-

Straints of the First Amendment. On the one hand,

public employers are employers, concerned with the

efficient function of their operations; review of every

personnel decision made by a public employer could,

in the long run, hamper the performance of public

functions. On the other hand, ‘the threat of dismissal

from public employment is * * * a potent means of

inhibiting speech.’ Pickering, 391 U.S., at 574, 88 S.

Ct., at 1737. Vigilance is necessary to ensure that

28a

public employers do not use authority over employ-

ees to silence discourse, not because it hampers

public functions but simply because superiors dis-

agree with the content of employees’ speech.” (Em-

phasis in original.)

The United States Court of Appeals for the Tenth Cir-

cuit has described other pertinent balancing considera-

tions including:

"* * * ‘Whether the statement impairs discipline by

superiors or harmony among coworkers, has a detri-

mental impact on close working relationships for

which personal loyalty and confidence are necessary,

or impedes the performance of the speaker’s duties

or interferes with the regular operation of the enter-

prise.’ Rankin v. McPherson, 483 U.S. 378, 388, 107

S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987). The Rankin

court also considered the manner, time, and place of

the employee’s expression, as well as the context in

which the dispute arose.” Schalk, 906 F.2d at 496.

It is our conclusion that the balancing of the inter-

ests in connection with Mekss’ telephone calls to Sher-

man, in the light of Pickering, tips in favor of the School.

The School is a publicly-funded state institution, and it is

charged with providing educational, vocational, and reha-

bilitative services to troubled adolescent girls. In some

respects, it may resemble a penal institution, but the

School places a much stronger emphasis on the positive

aspects of rehabilitation and education. That emphasis is

reflected in the institutional atmosphere which the

School administration endeavored to maintain. One goal

of the School has been to teach its residents that the

best way to solve a problem is to meet the situation and

deal with it in a direct and honest way; not to endeavor

to circumvent authority and evade responsibility. A trust-

ing staff, able to impose confidence in coworkers and

their intentions, and working toward a common purpose,

is an essential prerequisite to the attainment of the goal

29a

and ultimate institutional success. The adolescent resi-

dents at the School create an inherent potential of physi-

cal danger to School staff, and the need of the staff to

rely with confidence upon coworkers is vital. The School

has a valid and important interest in maintaining disci-

pline and espnt de corps. Crain v. Board of Police Com’rs

of Metropolitan Police Dept. of City of St. Louis, 920 F.2d

1402 (8th Cir. 1990); Hughes, 714 F.2d 1407. The chain-

of-command rule applied by the Schoo! in this case is

designed and intended to protect that very interest. Perry

v. City of Kinloch, 680 F.Supp. 1339 (E.D.Mo. 1988). If

suspicion of coworkers or uncertainty as to trustworthi-

ness is present, those factors are disruptive and counter-

productive. The goal of the School is to establish a

wholesome environment with individual role models for

the residents; not to demonstrate distrust or hypocrisy.

In light of these factors, we hold that Mekss’ tele-

phone calls to Sherman directly impaired Geisler’s au-

thority and ability to discipline the staff. When Mekss

told him that her first call to Sherman had nothing to do

with the School, and then promptly called Sherman

again to complain about the investigation, there was de-

ception that was deliberate, if not an intentional untruth.

Those calls did have a direct and detrimental impact on

Geisler’s confidence in Mekss’ loyalty to the School and

to him. It is true that Mekss’ ability to perform her du-

ties might not have been affected, but the potential of

her calls interfering with regular School operations is ob-

vious. See generally Melton v. City of Oklahoma City, 879

F.2d 706 (10th Cir. 1989), on reh’g vacated and remanded

on other grounds 928 F.2d 920 (10th Cir. 1991). The

School’s interest in maintaining good working relation-

ships within the staff and a stable public image weighs

more heavily in the light of Pickering than Mekss’ inter-

est in repeatedly attempting to tell Sherman her views

about the results of the investigation. Rankin, 483 U.S.

378.

30a

This case is like that envisioned by the United States

Supreme Court in Ammett, 416 U.S. 134, 94 S.Ct. 1633.

The discipline administered to Mekss was not directed

"at speech as such, but at employee behavior, including

speech, which [was] detrimental to the efficiency of the

employing agency." Amett, 416 U.S. at 162, 94 S.Ct. at

1648. See Battiste v. Department of Social Services, 154

Mich.App. 486, 398 N.W.2d 447 (1986). We hold that

the School’s dismissal of Mekss is permitted because her

actions undermined Geisler’s managerial authority.

Length-of-serviee- and an unblemished work record do

not suffice to justify open insubordination. A limited

First Amendment interest involved in connection with

the telephone calls to Sherman does not require that the

School tolerate this action which reasonably could be ex-

pected to disrupt operations, undermine authority, and

destroy close working relationships. Because Mekss’ ac-

tions already have undermined, and indeed enhanced the

potential for undermining, Geisler’s authority, she does

not survive the balancing test required by Pickering.

Huber v. Leis, 704 F.Supp. 131 (S.D.Ohio 1989). There is

no reason to set aside the Personnel Review Board’s

decision because of a violation of Mekss’ First Amend-

ment rights.

[7] While the parties do not debate the sufficiency

of the decision of the Personnel Review Board and the

record, we recognize a duty to be satisfied in that regard.

That duty flows from Rule 12.09, W.R.A.P., and §16-3-

114(c), W.S.1977 (July 1990 Repl.).” Under our cases, the

* Rule 12.09, W.R.A.P., provides, in pertinent part:

"The review [of an administrative action] shall be conducted by

the court without a jury and shall be confined to the record as

supplemented pursuant to Rule 12.08, W.R.A.P., and to the is-

sues raised before the agency. The court’s review shall be limited

to a determination of the matters specified in § 16-3-114(c).”

(continued...)

3la

duty to review the record is a tandem process. First, we

review the record as a whole to determine whether the

agency’s findings of fact are supported by substantial

evidence. Holding’s Little America v. Board of County

Commissioners of Laramie County, 670 P.2d 699 (Wyo.

1983), appeal after remand 712 P.2d 331 (1985); Toavs v.

State By & through Real Estate Commission, 635 P.2d

1172 (Wyo.1981). Substantial evidence in this context

means "such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." State

ex rel. Workers’ Compensation v. Ohnstad, 802 P.2d 865

(Wyo.1991); Shenefield v. Sheridan County School District

No. 1, 544 P.2d 870, 874 (Wyo.1976), quoting from How-

ard v. Lindmier, 67 Wyo. 78, 214 P.2d 737, 740 (1950).

* (...continued)

Section 16-3-114(c), W.S.1977 (July 1990 Repl.), provides, in pertinent

part:

"(c) To the extent necessary to make a decision and when pre-

sented, there reviewing court shall decide all relevant questions

of law, interpret constitutional and statutory provisions, and

determine the meaning or applicability of the terms of an agency

action. In making the following determinations, the court shall

review the whole record or those parts of it cited by a party and

due account shal) be taken of the rule of prejudicial error. The

reviewing court shall:

= * *# .

"(u) Hold unlawful and set aside agency action, findings and con-

clusions found to be:

"(A) Arbitrary, capricious, an abuse of discretion or otherwise

not in accordance with law;

"(B) Contrary to constitutional right, power, privilege or immu-

nity;

"(C) In excess of statutory jurisdiction, authority or limitations or

lacking statutory right;

"(D) Without observance of procedure required by law; or

"(E) Unsupported by substantial evidence in a case reviewed on

the record of an agency hearing provided by statute.”

32a

Findings of fact are supported by substantial evidence if,

from the evidence preserved in the record, we can dis-

cern a rational premise for those findings. ANR Produc-

tion Co. v. Wyoming Oil & Gas, 800 P.2d 492 (Wyo.

1990); Employment Secunty Commission of Wyoming v.

Western Gas Processors, Ltd., 786 P.2d 866 (Wyo.1990).

The second step is a determination as to whether the

conclusions of law made by the agency are in accordance

with law. Belle Fourche Pipeline Co. v. State, 766 P.2d

537 (Wyo.1988). Conclusions of law are affirmed if they

are in accord with the law. Department of Revenue and

Taxation of State of Wyoming v. Casper Legion Baseball

Club, Inc., 767 P.2d 608 (Wyo.1989). If conclusions of

law are not in accord with applicable rules, they are

corrected. Employment Security Commission.

[8] In accomplishing our review, we are not bound

to accept any of the determinations of the district court

and are not required to afford those determinations def-

erence but, instead, we are obligated to review the ap-

peal as if it came directly to this court from the agency.

Sellers v. Wyoming Board of Psychologist Examiners, 739

P.2d 125 (Wyo.1987). Deference is afforded to the deter-

minations of fact made by the agency and not to the de-

cisions of the district court. Zezas Ranch, Inc. v. Board of

Control, 714 P.2d 759 (Wyo.1986). See Palmer v. Board of

Trustees of Crook County School Dist. No. 1, 785 P.2d

1160 (Wyo.1990). We are entitled to rely upon and af-

ford deference to any agency expertise in weighing the

evidence, and we do not disturb the determination by

the agency unless it is "clearly contrary to the over-

whelming weight of the evidence on record." State ex rel.

Workers’ Compensation v. Brown, 805 P.2d 830, 833

(Wyo.1991); Employment Security Commission, 786 P.2d

at 871, quoting from Southwest Wyoming Rehabilitation

Center v. Employment Security Commission of Wyoming,

781 P.2d 918, 921 (Wyo.1989).

[9] On review, the burden is assigned to the appel-

33a

lant to demonstrate that the agency’s findings and con-

clusions are not supported by substantial evidence.

Westates Construction Co. v. Sheridan County School Dis-

trict No. 2, Board of Trustees, 719 P.2d 1366 (Wyo.1986).

If substantial evidence is found, the fact that two differ-

ent conclusions may be drawn from the evidence does

not inhibit a holding that the conclusion drawn by an ad-

ministrative agency was supported by substantial evid-

ence. Vandehei Developers v. Public Service Commission

of Wyoming, 790 P.2d 1282 (Wyo.1990).

[10] Our law requires a degree of detail in the find-

ings of fact and conclusions of law made by an adminis-

trative agency. One of the fundamental purposes of the

Wyoming Administrative Procedure Act is to assure that

controverted issues involved in any contested case will be

fully developed before the agency as a finder of fact. "A

record of material and substantial evidence must be cre-

ated so that a reviewing court can determine whether

such factual development occurred or whether, instead,

the agency’s actions were based on unwarranted or unde-

clared assumptions." Jackson v. State ex rel. Wyoming

Workers’ Compensation Division, 786 P.2d 874, 877 (Wyo.

1990). Section 16-3-110, W.S. 1977 (July 1990 Repl.),

supports this proposition by requiring that:

"* * * Findings of fact if set forth in statutory lan-

guage, shall be accompanied by a concise and explic-

it statement of the underlying facts supporting the

findings."

Our rule is that this statutory provision demands findings

of basic facts upon all material issues in the proceeding

and upon which the ultimate findings of fact or conclu-

sions are based. FMC v. Lane, 773 P.2d 163 (Wyo.1989).

In Cook v. Zoning Board of Adjustment for the City of

Laramie, 776 P.2d 181, 185 (Wyo.1989), we stated:

"It is insufficient for an administrative agency to

State only an ultimate fact or conclusion, but each

34a

ultimate fact or conclusion must be thoroughly ex-

plained in order for a court to determine upon what

basis each ultimate fact or conclusion was reached.

The court must know the why." Geraud v. Schrader,

531 P.2d 872, 879 (Wyo.), cert. denied sub nom. Wind

River Indian Education Association, Inc. v. Ward, 423

U.S. 904, 96 S.Ct. 205, 46 L.Ed.2d 134 (1975)).

In Jackson, 786 P.2d 874, 878, we set forth this statement

of the rule:

"We have held it essential to surviving judicial re-

view that the record of a contested agency action

contain such factual findings as would permit a court

to follow the agency’s reasoning from the evidentiary

facts on record to its eventual legal conclusions. Lar-

sen v. Oil and Gas Conservation Comm’n, 569 P.2d

87, 90-91 (Wyo.1977); Powell v. Board of Trustees,

Crook County School District, No. 1, 550 P.2d 1112,

1120 (Wyo.1976). Similarly, we have held that a con-

tested case hearing must provide, and the record of

that proceeding must document, information suffi-

cient to the making of a reasonable decision. Absent

such information, the agency decision must be set

aside as arbitrary. Western Radio Communications,

Inc. v. Two-Way Radio Service, Inc., 718 P.2d 15, 20

(Wyo.1986); Monahan v. Board of Trustees, Elemen-

tary School District No. 9, 486 P.2d 235, 237 (Wyo.

1971). The need for such strict compliance with stat-

utory provisions relating to the content of the agency

record derives largely from a need to ascertain

whether contested case hearings actually provide

Statutorily mandated procedural protections. To as-

Sure the due process protections inherent in the

{Wyoming Administrative Procedure Act’s] statutory

scheme will be given effect, this court requires strict

compliance with those procedural provisions."

{11} In the process of judicial review, no presump-

tion attaches to a general finding because of the specific

35a

requirements of §16-3-110, W.S.1977, quoted above. If

any agency action is premised upon a decision entered

without observance of the procedure required by law,

that decision must be held unlawful and set aside. FMC,

773 P.2d 163. If the findings do not adequately reflect

the justification for the agency position that is adopted,

then the case must be remanded to the agency so that

requisite supplemental findings can be made. A decision

that does not comply with these requirements is subject

to attack as being arbitrary, capricious, and contrary to

law. Mountain Fuel Supply Co. v. Public Service Commis-

sion of Wyoming, 662 P.2d 878 (Wyo.1983).

In the course of her argument, Mekss asserts that

the decision of the Personnel Review Board that af-

firmed her dismissal failed to meet the foregoing stand-

ards by incorporating specifically detailed findings to

support the ultimate facts and conclusions. In consider-

ing this contention, we will scrutinize the findings and

conclusions of the Personnel Review Board and arrive at

the determination as to whether they are sufficiently sup-

ported to justify an affirmance. The Board incorporated

five conclusions, but we think that its first conclusion:

"1. Ms. Mekss created disharmony in the function of

the Wyoming Girls’ School and circumvented estab-

lished lines of authority."

is the significant basis for the Board’s decision. One of

the reasons stated in the notice of termination furnished

to Mekss involved insubordination based upon circum-

venting established lines of authority. The first conclu-

sion of the Board addresses this matter. Insubordination

is cause for dismissal according to the personnel rules,

and a factual finding by the Board that Mekss was insub-

ordinate would justify the dismissal in accordance with

this conclusion.”

'° We take judicial notice of the State of Wyoming Personnel Rules in

(continued...)

36a

We then examine only that finding of fact that re-

lates to this particular conclusion. Finding No. 3 states:

"3. Ms. Mekss failed to exhaust the normal personnel

system options by taking issues directly to Mr. Geis-

ler prior to proceeding in the manner in which she

did."

This finding relates specifically to insubordination by

Mekss and her circumvention of established lines of au-

thority. Our examination of this finding requires a deter-

mination as to whether it sufficiently articulates the rea-

sons for the Board’s affirmation of Mekss’ dismissal pur-

suant to §16-3-110, W.S.1977, and, secondly, whether it is

stpported by substantial evidence. It is our conclusion

that Finding No. 3 is sufficient to meet the statutory re-

quirement set forth in the statute. In Westates, 719 P.2d

1366, 1371, we said:

"While perhaps not a model of perfection, the find-

ings of fact by the Board in this case are sufficiently

definite to permit judicial review of the Board’s ac-

tion, and they satisfy the test of our earlier cases."

It follows that this single, viable finding of basic fact,

sufficient to support one valid and legally correct conclu-

sion, justifies affirming Mekss’ dismissal.

We then turn to the requirement of substantial evi-

dence to support the finding that Mekss was guilty of in-

subordination in the context of the personnel rules. The

record adequately discloses that Mekss failed to exhaust

'° (...continued)

effect at the time of Mekss’ dismissal. Chapter XII, Discipline, Section

1, Reasons for Discipline, states:

"(a) An agency head may discipline an employee for cause in-

cluding, but not limited to, the following reasons:

**s © *

"(vi) Insubordination; * * * "

37a

available administrative procedures prior to sending the

anonymous letter and prior to making the telephone

calls to Sherman. We are not completely certain what is

connoted by the Board’s reference to "normal personnel

system options," but we would understand this phrase to

relate to face-to-face communication with supervisory

personnel and the use of traditional internal grievance

procedures. There is no question that all employees

repeatedly were encouraged to bring problems and con-

cerns to Geisler and other members of the School ad-

ministration staff. Mekss did not follow this recourse,

and she also told Geisler, during their meetings on No-

vember 30 and December 5, that her attempts to contact

Sherman did not involve School matters. Effective opera-

tion of a governmental function permits the employer to

require honesty and loyalty from employees. In a state

institutional setting that is designed to fulfil rehabilitative

and educational purposes, honesty, loyalty, harmony, and

efficiency become even more critical. The desirable ef-

fect of positive role modeling on impressionable resi-

dents at the School becomes a vital and necessary attri-

bute for all employees. We understand that Mekss’ at-

tempts to draw a distinction between matters involving

the School and the underlying investigation of the

School, but this is simply a semantic affect in Mekss’ ar-

gument. What is easy to see is that Geisler could inter-

pret these actions by Mekss as dishonest and disloyal.

[12] As we have held earlier, the anonymous letter

qualifies as protected speech in the context and manner

in which it was used. Mekss’ telephone calls, as we also

have held earlier, are not similarly protected. Finding

No. 2 of the Personnel Review Board does mention

anonymous letters, but we find no support in the record

for the contention that the reason the Personnel Review

Board affirmed Mekss’ dismissal was because she had

written an anonymous letter. We do find substantial evi-

dence in the record to demonstrate that Mekss violated

an obligation to her employer to exhaust "normal person-

38a

nel system options" before calling Sherman with com-

plaints about the investigation. There is no question that

substantial evidence does support Finding No. 3, and this

finding identifies the behavior relied on by the Personnel

Review Board to justify dismissal based on insubordina-

tion.

We do modify Conclusion No. 1 so that it should

read:

"Ms. Mekss was insubordinate in circumventing

established lines of authority."

As drafted by the Board, Conclusion No. 1 also had in-

corporated that Ms. Mekss created disharmony in the

function of the Wyoming Girls’ School. There is no find-

ing of fact by the Personnel Review Board that justifies

this conclusion, and we are not persuaded that substan-

tial evidence in the record supports the actual creation

of disharmony by Mekss. See Schalk, 906 F.2d 491. We,

therefore, correct the conclusion of law in accordance

with our rule found in Employment Security Commission,

786 P.2d 866.

As modified and corrected, this conclusion of the

Personnel Review Board is supported by an appropriate

finding of fact that is supported by substantial evidence.

It justifies Mekss’ dismissal. She had access to internal

grievance procedures avaiiable under the _ personnel

rules, and she chose not to use them. Her own testimony

discloses knowledge of Geisler’s repeated verbal and

written efforts to invite employee input, but she did not

comply with those efforis. On the basis of our conclusion

that substantial evidence supports Finding No. 3 which is

the justification for Conclusion No. 1, as modified, we

hold that it is unnecessary to remand the case to the dis-

trict court for further remand to the Personnel Review

Board for additional findings and conclusions. The rule

adopted in FMC, 773 P.2d 163, is satisfied.

As the second issue raised in this case, Mekss urges

39a

that the Schoo! violated the state personnel rules by

failing to pursue successive levels of discipline prior to

her dismissal. Mekss finds support for this argument in

Conclusion No. 2 of the decision of the Personnel Re-

view Board, which states:

"2. Mr. Geisler did not fully comply with the DAFC

Personnel Rules and Regulations in his application

by consistent, well-defined, and progressive discipli-

nary measures prior to his dismissal of Ms. Mekss."

This record demonstrates that Mekss knew of Geis-

ler’s emphasis and insistence upon bringing concerns

about School operations to his attention or to that of

other administrators. Geisler sent memoranda to the

staff and addressed specific remarks to them relating to

the importance of internal communication. On Novem-

ber 30, 1988, Geisler met with Mekss after her first tele-

phone call to Sherman. He then asked whether she had

concerns about the School, and she advised that she did

not. Geisler then reminded Mekss of her responsibility

to come to him with complaints or concerns, but he did

not initiate other formal disciplinary action.

After Mekss’ second telephone call to Sherman,

Geisler met with her on December 5, 1988 to impose

discipline for her behavior. That meeting and the fact

that Geisler issued a ten-day suspension and required

Mekss to write a letter of apology reasonably could be

perceived as a disciplinary "step" prior to dismissal. We

conclude that we need not decide whether such disci-

pline satisfies the "successive step" requirement under

the personnel rules because a plain reading of those

rules allows for immediate dismissal of a permanent em-

ployee for flagrant concuct. The pertinent portion is

found in Chapter XII, Discipline, State of Wyoming

Personnel Rules, in effect at the time of Mekss’ dismis-

Sal, and it states:

"Section 2. Determination of Appropriate Discipline.

40a

"(a) Agency heads should, except in cases of flagrant

employee behavior, attempt to administer employee

discipline in progressive stages so as to seek correc-

tive results. * * * " (Emphasis added.)

z = x * *

"Section 3. Types of Discipline.

x * * - *

"(c) Dismissal.

"(i) Dismissal of Permanent Employees. If previ-

ous disciplinary action has not served to achieve

corrective results, or if the nature and -extent of

the just cause is such that other disciplinary action

is not appropriate, the agency head may dismiss a

permanent employee for the good of the ser-

vice." (Emphasis added.)

[13] We affirm the reversal by the district court of

Conclusion No. 2 of the Personnel Review Board which

reads as follows:

"2. Mr. Geisler did not fully comply with the DAFC

Personne! Rules and Regulations in his application

by consistent, well-defined, and progressive discipli-

nary measures prior to his dismissal of Ms. Mekss."

The Personnel Review Board did not provide findings of

fact to support Conclusion No. 2. Our examination of

the record did not develop substantial evidence to sup-

port a conclusion that Geisler did not fully comply with

the personnel rules because those rules explicitly grant

authority to dismiss a permanent employee for flagrant

behavior without going through successive steps of disci-

pline. For this reason, Geisler was not obligated to im-

pose progressive discipline prior to dismissing Mekss,

particularly in view of her refusal to write an appropriate

apology. The circumstances in this case were sufficient to

justify summary dismissal when Mekss, after repeated at-

4la

tempts to contact Sherman, failed to accept discipline

that would have involved a reasonable letter of apology.

Her letter was only a continuation of the crusade re-

lating to the School that could not be constitutionally

protected once the investigation Jhad been accomplished.

[14] The last issue in Mekss’ brief is whether the

School was without standing to appeal the decision of

the Personnel Review Board that awarded her the five

months back pay and benefits. As we have noted, the

School took a cross-appeal to the district court from the

decision of the Personnel Review Board, claiming that

the award of the back pay was arbitrary, capricious, an

abuse of discretion, in excess of the Board’s statutory au-

thority, and unsupported by substantial evidence. In our

judgment, this issue is controlled by statute and by our

holding in Pritchard v. State, Division of Vocational Reha-

bilitation, Department of Health and Social Services, 540

P.2d 523 (Wyo.1975). In Pritchard, we analyzed the statu-

tory terms "person" and "agency" in light of the defini-

tions in the Wyoming Administrative Procedure Act. We

held that an agency is without the right to appeal an ad-

verse administrative decision to the district court, saying:

"The conclusion we reach here is bottomed in the

plain English language reading of the rules and stat-

utes and represents the overwhelming weight of au-

thority under statutes and rules identical with or

similar to our Administrative Procedure Act and

Rule 72.1, W.R.C.P.

"* * * (I}f an ‘agency’ is given a specific right to ap-

peal to the courts, such a grant is within the power

of the legislature and must be honored. But there

must be an applicable appeal procedure spelled out

in the statute. It cannot be inferred and, as here,

where the statute specifically excludes an agency’s

right of appeal, there cannot be any question but

42a

that the agency enjoys no such appellate privileges."

(Emphasis in original.) Pritchard, 540 P.2d at 527,

529. .

This rule was reiterated in Hupp v. Employment Security

Commission of Wyoming, 715 P.2d 223, 224 n.1 (Wyo.

1986), when we stated:

"The agency itself cannot bring an appeal to the dis-

trict court because it is not a ‘person aggrieved or

adversely affected in fact by a final decision of an

agency in a contested case.’ Section 116-3-114(a), W.

S.1977; Pritchard v. State, Division of Vocational Re-

habilitation, Department of Health and Social Services,

Wyo., 540 P.2d 523, 526 (1975)."

The School argues that Pritchard is not applicable in

this case. It contends that Mekss raised the question of

standing for the first time before this court. This argu-

ment can be resolved expeditiously because standing in

this context essentially is a jurisdictional issue concerning

the power of the court to hear and decide a case. In that

context, standing can be raised at any time in a judicial

proceeding.

The School then argues that once Mekss petitioned

for review, the School became a proper and aggrieved

party. The State endeavors to avoid the definitional bar-

rier in light of Pritchard and the Wyoming Administra-

tive Procedure Act by arguing that Pritchard should be

modified to allow an agency to cross-appeal. Although

the State presents a concise and forceful argument in

this regard, it still must be recognized that it is within

the province of the legislature to consider and, if neces-

sary, redefine whether an administrative agency may ap-

peal or cross-appeal to the district court. We note in

passing that there is no inhibition upon the right of an

agency to appeal an adverse decision from the district

court to the Supreme Court. See Safety Medical Services,

Inc. v. Employment Security Commission of Wyoming, 724

43a

P.2d 468 (Wyo.1986). In our view, Pritchard and the Wy-

oming Administrative Procedure Act should be con-

strued to inhibit cross-appeals brought by an agency at

the district court level like a direct appeal is inhibited.

Ultimately, the School argues that the Personnel

Review Board was without authority and jurisdiction to

order the payment of public funds from the state treasu-

ry. The State argues that the remuneration "ordered" by

the Board violates state personnel rules and the Wy-

oming constitution.” As a matter of logic, the State pre-

sents the proposition that, if the Personnel Review

Board found substantial evidence to justify Mekss’ ter-

mination, then the award of remuneration is antithetical

to its affirmation of her discharge. Certainly, this conten-

tion may have a good deal of merit. 7

'' Appellees rely on Chapter XIII, Grievances and Appeals, State of

Wyoming Personnel Rules:

"Section 6. Dismissal Appeals.

see @ 8

"(e) Hearing Authority Purpose and Authority.

"(i) The purpose of the hearing is to determine whether there ex-

ists good cause for the dismissal. The Hearing Authority shall

decide, based upon all of the evidence produced at the hearing

and upon no other basis, whether the allegations made in sup-

port of the dismissal are true and, if true, whether they fairly and

reasonable [sic] constitute grounds for dismissal under the Per-

sonnel Rules.

"(ii) The Hearing Authority shall affirm or reverse the dismissal

and/or recommend other personnel actions so long as the deci-

sions and recommendations are not in conflict with Personnel

Rules and State Statutes.” (Emphasis added.)

Appellees also find support in Article 3, §35, of the Wyoming

Constitution which states in part:

"* * * [M]oney shall be paid out of the treasury only on appro-

priations made by the legislature, and in no case otherwise than

upon warrant drawn by the proper officer in pursuance of law.”

44a

We do not need to decide that question in this case,

however. The application of the rule in Pritchard leads to

a conclusion that the School did not have standing to

cross-appeal to the district court. For that reason, the

district court was without jurisdiction to adjudicate the

issues presented by the cross-appeal.

The School is not without recourse. A conclusion

that the Personnel Review Board’s award of five months

back pay and benefits cannot be addressed in this pro-

ceeding does not require the State to make the payment.

If the State refuses to pay, Mekss could sue for the mon-

ey or, alternatively, the School could seek a declaratory

judgment with respect to the authority of the Personnel

Review Board to "order" remuneration. Since we con-

clude that the district court did not have jurisdiction over

this issue, we reverse that portion of the district court

order that reverses the award of back pay.

In summation, we hold that Mekss’ constitutional

right of free speech was not infringed with respect to any

matter of public concern when she was dismissed from

her position as a bookkeeper at the School. We have

recognized her constitutionally protected right of free

speech to the extent that it was exercised appropriately

but, with respect to those actions which do not manifest

a constitutionally protected right, we have approved their

use aS a premise for a valid discharge. We hold that

there was no violation of the state personnel rules by the

School, and we affirm the order of the district court that

affirmed the decision of the Personnel Review Board in

turn approving the dismissal of Mekss by the School. We

reverse that portion of the order of the district court that

reversed the award of remuneration on the ground thai

the district court was without jurisdiction over the cross-

appeal by the School.

Affirmed in part and reversed in part.

45a

CARDINE, Justice, files a specially concurring

opinion.

URBIGKIT, C.J., files a dissenting opinion in which

GOLDEN, J., joins.

CARDINE, Justice, specially concurring.

I concur in the opinion of the court affirming the

dismissal of appellant. I concur also in the reversal of

the district court order denying appellant five months’

pay awarded by the personnel review board because of

the precedent established by Pritchard v. State, Div. of

Vocational Rehabilitation, Dep’t of Health and Social

Serv., 540 P.2d 523 (Wyo.1975). I must, however, express

my opinion that there is no logical or sound reason for

denying the State of Wyoming a right of appeal. The

present state of law makes final a board decision against

the State no matter how absurd or wrong it may be. It is

possible that in the future the State may be the victim of

an unwarranted multimillion dollar award and powerless

to do other than pay. When that case comes before us,

we will be hard pressed to continue the rule of Pritchard.

Perhaps the legislature will look at this state of the law

before the hard case comes along. At a minimum, |

would hold that when the "person" aggrieved by the

board’s decision initiates an appeal, the State is then in

court and may respond to the appeal by cross-claim or

otherwise.

URBIGKIT, Chief Justice, dissenting, with whom

GOLDEN, Justice, joins.

INTRODUCTION

This is a public employee termination case. Regina

Mekss was discharged from her employment with the

Wyoming Girls’ School (a juvenile confinement facility)

because she went outside the School’s chain of command

by a telephone call to the Executive Secretary of the

Board of Charities and Reform to challenge the suffi-

46a

ciency of the Board’s investigation into reports of man-

agement problems at the institution. Violating the chain

of command was characterized as insubordination and

justification for her dismissal by the School.

This court holds that her dismissal does not violate

the First Amendment of the United States Constitution

because the School’s "interest in maintaining discipline

and esprit de corps" outweighs her right to freedom of

speech. Because her efforts and the telephone call ad-

dressed a matter of public concern and did not adversely

affect the operation of either the School or the Board, I

dissent.

By demonstrating that it is again the messenger who

is at risk, this whistleblower case does not suit my sense

of either justice or justification to approve Mekss’ ter-

mination from public employment. As Justice Thurgood

Marshall observed in dissent, denial of, or discharge

from, public employment is "a serious blow to any citizen

* * * [w]hen something as valuable as the opportunity to

work is at stake, the government may not reward some

citizens and not others without demonstrating that its ac-

tions are fair and equitable." Board of Regents of State

Colleges v. Roth, 408 U.S. 564, 589, 92 S.Ct. 2701, 33 L.

Ed.2d 548 (1972).

Although whistleblowers are recognized as a "vital

element of our democratic process" serving as "an early-

warning system against fraud and deception within the

government," reprisals against whistleblowers are often

"swift and harsh." E. Slavin and T. Devine, The Govern-

ment’s Secret War on Whistleblowers, 18 ABA Barrister

12, 15, 36 (Spring 1991). Public employees who speak

out should now fear that they will lose their jobs, forfeit

Salary increases, or be denied promotions. When faced

with such consequences, self-imposed censorship is often

the most prudent choice. This self-imposed censorship is

47a

of profound consequence not only to the millions' who

work for the government, but also to the public who may

have an interest in hearing their unexpressed views. See

Massaro, Significant Silences: Freedom of Speech in the

Public Sector Workplace, 61 S.Cal.L.Rev. 3 (1987). Pro-

fessor Chafee has observed:

"The number of federal, state, and municipal emp-

loyees is a substantial part of the working popula-

tion. Add workmen in factories with government

contracts and professors teaching in universities with

a R.O.T.C. or a government grant for scientific re-

search or an assigned unit from the Army or the

Navy, and hardly anybody is left out. If millions of

Americans lose freedom of speech and assembly by

the mere act of earning a living, the First Amend-

ment becomes a mockery."

Massaro, supra, 61 S.Cal.L.Rev. at 6 n.15 (quoting Z.

Chafee, The Blessings of Liberty 94 (2d ed. 1956)).

CONSTITUTIONAL RIGHT TO FREE SPEECH

For more than twenty years, the law has been firmly

established that a governmental entity cannot condition

employment on any limitation that infringes the employ-

ee’s constitutionally protected interest in freedom of ex-

pression. See Connick v. Myers, 461 U.S. 138, 146, 103 S.

Ct. 1684, 1687, 75 L.Ed.2d 708 (1983) and Schalk v. Gal-

lemore, 906 F.2d 491 (10th Cir. 1990). The School imper-

missibly violated Mekss’ constitutional right to speak on

matters of public concern when it fired her for expres-

sing her views and opinions to the Board and its Execu-

tive Secretary. Schalk, 906 F.2d 491.

' See, for statistics, D. Westman, Whistleblowing: The Law of Retali-

atory Discharge 45 (1991).

48a

THE SEQUENTIAL TEST

This majority correctly adopts a sequential test to

determine whether the School’s action of dismissal im-

permissibly infringed upon Mekss’ constitutionally pro-

tected right of free speech, as recently summarized in

Schalk. In its analysis and application of the sequential

test, the majority distinguishes two separate instances of

communication initiated by Mekss: the first being the

anonymous letter written to the Governor and the other

members of the Board, and the second being a tele-

phone call to the Executive Secretary of the Board re-

garding the investigation.’ For purposes of applying the

test, the majority assumes, without deciding, that each in-

stance of communication addressed a matter of public

concern.

THE ANONYMOUS LETTER

The majority accepts Mekss’ contention that the

anonymous letter constituted whistleblowing speech and

that it should be given the highest level of constitutional

protection. It further agrees with Mekss that her interest

in making the statement outweighed the interest of the

School in stifling the speech. However, the majority then

* The record clearly shows that the telephone call by Mekss to K.

Gary Sherman, Executive Secretary of the Board, was the result of a

suggestion from Ms. Kathy Karpan, Secretary of State, who was a

member of the Board by whom Sherman was employed. Mekss

followed that suggestion and was then terminated. The factual superfi-

ciality and obviousness of this case is hardly subject to question. Notes

of the facility director, Superintendent Jack Geisler, reveal an appar-

ent warning by Sherman to Mekss that "she should get on [the] right

side or get out.”

Subsequent to the occurrence of these events, the superintendent of

the facility retired and, at a later date, the institution itself was trans-

ferred from the Board (confinement) to the Department of Family

Services (social welfare and family support). No one will ever know

how much contribution to public benefit this one strong-willed em-

ployee may have actually made.

49a

a ee ee

concludes that she failed to meet her burden of proving

that the letter was a substantial or motivating factor in

her dismissal. Mt. Healthy City School Dist. Bd. of Ed. v.

Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471

(1977).

Although I disagree with the majority and suspect

that the anonymous letter was a substantial or motivating

factor in Mekss’ dismissal, the record shows that the

supervisor at the School testified that he did not dismiss

Mekss for writing the anonymous letter, but for "circum-

venting established lines of authority" by making the one

telephone call to the Executive Secretary of the Board.

The majority modified the Personnel Review Board’s

Conclusion No. 1 to state that "Ms. Mekss was insubordi-

nate in circumventing established lines of authority’,

thereby accepting the supervisor’s testimony that Mekss

was not dismissed for writing the anonymous letter but

rather for making the telephone call. I will apply the se-

quential test to the telephone call to demonstrate that

the School impermissibly infringed upon Mekss’ right to

free speech by dismissing her for making that telephone

call. Pickering v. Board of Ed. of Township High School

Dist. 205, Will County, Illinois, 391 U.S. 563, 88 S.Ct.

1731, 20 L.Ed.2d 811 (1968). See also Perry v. Sinder-

mann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570

(1972), which held that a college professor’s public criti-

cism of the Board of Regent’s opposition to a proposal

that the college be elevated to four-year status was con-

Stitutionally protected speech about a matter of public

concern. Therefore, I find it unnecessary to further ad-

dress the matter of the anonymous letter.

PUBLIC CONCERN ANALYSIS

The United States Supreme Court in Connick, 461

U.S. 138 held that a public employee’s work-related

speech is not covered by the First Amendment unless it

addresses a matter of public concern and will not disrupt

the workplace. Thus, the threshold inquiry in deter-

S0a

mining whether a governmental employer’s employment

decision violates the First Amendment rights of an ad-

versely affected employee is whether the speech at issue

"may be ‘fairly characterized as constituting speech on a

matter of public concern.” Rankin v. McPherson, 483

U.S. 378, 384, 107 S.Ct. 2891, 97 L.Ed.2d 315, reh’g de-

nied 483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 819 (1987)

(quoting Connick, 461 U.S. at 146, 103 S.Ct. at 1690).

Speech on a matter of public concern is generally de-

fined as speech "fairly considered as relating to any

matter of political, social, or other concern to the com-

munity * * *," Connick, 461 U.S. at 146, 103 S.Ct. at

1690, in contrast to speech "as an employee upon mat-

ters only of personal interest * * *." Jd. at 147. Thus, the

purpose of the inquiry is to weed out a narrow range of

employee speech which addresses purely personal dis-

putes and is not entitled to First Amendment protection.

Berger v. Battaglia, 779 F.2d 992, 998 (4th Cir. 1985), cert.

denied 476 U.S. 1159, 106 S.Ct. 2278, 90 L.Ed.2d 720

(1986).

"Whether an employee’s speech addresses a matter

of public concerfi must be determined by the content,

form and context of a given statement, as revealed by

the whole record." Connick, 461 U.S. at 147-48, 103 S.Ct.

at 1690. This inquiry focuses on "the extent to which the

content of the employee speech was calculated to dis-

close wrongdoing or inefficiency or other malfeasance on

the part of governmental officials in the conduct of their

official duties." Koch v. City of Hutchinson, 847 F.2d

1436, 1445 (10th Cir.), cert. denied 488 U.S. 909, 109 S.

Ct. 262, 102 L.Ed.2d 250 (1988). "“The focus is on the

role the employee has in advancing the particular expres-

sions: that of a concerned public citizen, informing the

public that the state institution is not properly dis-

charging its duties * * *; or merely as an employee, con-

cerned only with internal policies or practices which are

of relevance only to the employees of that institution.”

Id. at 1445 (quoting Cox v. Dardanelle Public School

Sla

Dist., 790 F.2d 668, 672 (8th Cir. 1986)). See also Wulf v.

City of Wichita, 883 F.2d 842, 857 (10th Cir. 1989) and

Conaway v. Smith, 853 F.2d 789, 796-97 (10th Cir. 1988).

This record justifies my conclusion that the tele-

phone call was made as-a public employee speaking as a

citizen and did indeed address a matter of public con-

cern. Rankin, 483 U.S. 378, 107 S.Ct. 2891; Connick, 461

U.S. 138, 103 S.Ct. 1684. It was addressed directly to the

sufficiency of the investigation which was a function and

duty of the Board. Mekss had nothing personal to gain

by airing her concerns. Her motive was to improve the

education and treatment of the institutional clientele and

to improve the working conditions of the employees.

From her perspective, Mekss had sufficient reasons to

view the investigation as superficial and inadequate be-

cause what she had reported and what she believed

others had reported had not been sufficiently docu-

mented or considered in the official report.

The content of her statements, if true, suggest that

the Board (or the School) was not properly discharging

its duties_ This falls into the category of "[s]peech that

seeks to expose improper operation of the government

Or questions the integrity of governmental officials"

which "clearly concerns vital public interests." Conaway,

853 F.2d at 797. -

The majority erroneously concludes that because her

telephone call addressed issues that had been discussed

in the anonymous letter and the subsequent investiga-

tion, any further discussion on her part was in the nature

of a personal grievance or complaint. Connick, 461 U.S.

138, 103 S.Ct. 1684. The majority fails to recognize that

her speech at this juncture did not address the operation

of the School per se, but rather the Board and the man-

ner in which they conducted their investigation into mat-

ters concerning the Schuvl. To substantiate Mekss’ view

that the investigation was inadequate necessarily re-

quired that she reiterate specific statements she had

S2a

made to the investigators, which of course reflected her

concerns about the operation of the institution. Her con-

cerns and resulting statements cannot be fairly or accu-

rately characterized as merely personal complaints con-

cerning internal policies and practices of relevance only

to Mekss as an employee. Connick, 461 U.S. at 148, 103

S.Ct. at 1690; Cox, 790 F.2d at 673.

For the sake of argument, assuming that the tele-

phone call was purely critical of the School and not criti-

cal of the Board’s investigation, it would still touch on a

matter of public concern for essentially the same reasons

the majority concludes that the anonymous letter

touched on a matter of public concern.’ Conaway, 853 F.

* The judiciary, in requirement to confine female juveniles, has a high

interest in the performance of this institution with no other facility ex-

cept the women’s prison in Lusk, Wyoming available when something

must be done with the individual. This controversy consequently in-

volved the one available state institution for judicial commitment of

the uncontrolled or criminally inclined juvenile females. Wulf, 883 F.2d

842. Nothing in this record shows that the judiciary was asked about

agency performance when the Personnel Review Board rendered the

decision adverse to the employee. The issue of institutional per-

formance within its assigned mission of unquestionable importance to

the state got lost in managerial ego and the "I am right, shut up” syn-

drome. The record realistically provides no compelling evidence to

demonstrate that this employee was either right or wrong about the

substance of employee concerns for the facility's basic operation.

Directly presented in the first sequence of these events was conten-

tion of mismanagement. The second sequence invoked the question of

whitewash of that mismanagement. Nothing provided in this record

permits or justifies determination whether either or both were the re-

sult of an unjustified, unprincipled, factually untrue malicious activity

of the employee, or just a cover-up where the whistleblower is termi-

nated so that problems will not be uncovered or publicly considered.

Attachments to Mekss’ brief, which consisted of contemporary news

stories from a statewide newspaper, were attacked by a motion to

strike by the Attorney General’s office. The motion was sustained by

order of this court determining that "various news articles from the

(continued...)

S3a

2d 789; Wren v. Spurlock, 798 F.2d 1313 (10th Cir. 1986),

cert. denied 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d

145 (1987).

As the majority points out, the record does not sup-

port the veracity of Mekss’ concerns as she was not per-

mitted to present evidence concerning inaccuracies in

the investigation to the Personnel Review Board. Wheth-

er her concerns were well founded is not significant

since the strong interest in protecting this type of speech

determines that the whistleblower need not be absolutely

accurate to be protected by the courts. This court, in

Board of Trustees, Laramie County School Dist. No. 1 v.

Spiegel, 549 P.2d 1161 (Wyo.1976), held that the school

district erred in discharging its tenured teacher for

making and publishing statements critical of the school’s

administrator and of schools generally. This cou.t con-

cluded that absent proof that the employee knowingly or

recklessly made false statements, his criticism could not

furnish a lawful basis for dismissal. Jd. at 1176. See also

Pickering, 391 U.S. 56, 88 S.Ct. 1731.

The majority also determines that the speech did not

touch on a matter of public concern in part because

Mekss did not have sufficient personal knowledge about

the investigation. It is true she did not know how the re-

sults were tabulated. However, it is not necessary that

she have intimate knowledge of how the investigation

was conducted before her speech is protected by the

courts. The courts have provided protection even though

the speaker had no firsthand/“knowledge of the reported

incidents. Hughes v. Whitmer, 714 F.2d 1407, 1423 (8th

Cir. 1983), cert. denied 465 U.S. 1023, 104 S.Ct. 1275, 79

L.Ed.2d 680 (1984). ;

* (..continued)

Casper Star-Tribune be stricken and shall be disregarded by the

cour\.”

S4a

The next inquiry is whether the communication dis-

rupted the workplace. The United States Supreme Court

in Givhan v. Western Line Consol. School Dist., 439 U.S.

410, 99 S.Ct. 693, 5& L.Ed.2d 619 (1979) held that a

teacher’s series of private communications to her super-

visor regarding racial discrimination at the school was

protected speech. The court noted that when an employ-

ee expresses a grievance in a private meeting, courts can

consider the time, place, and manner of the confronta-

tion in evaluating whether it impeded institutional effi-

ciency. /d. at 415 n.4. It would follow that speech that

occurs away from the workplace, such as Mekss’ tele-

phone call to the Executive Secretary, poses an even less

significant threat to the authority and efficiency of the

institution than a private personal confrontation with a

supervisor. Likewise, the majority concedes that there is

insufficient evidence in the record to support a disrup-

tion in the workplace.

THE PICKERING BALANCING TEST

The function of the Pickering test is to "balance be-

tween the interests of the [employee], as a citizen, in

commenting upon matters of public concern and the in-

terest of the State, as an employer, in promoting the effi-

ciency of the public services it performs through its em-

ployees.” Pickering, 391 U.S. at 568, 88 S.Ct. at 1734-35.

Balancing the competing interests of the employee and

the employer requires consideration of "‘whether the

Statement impairs discipline by superiors or harmony

among coworkers, has a detrimental impact on close

working relationships for which personal loyalty and con-

fidence are necessary, or impedes the performance of

the speaker’s duties or interferes with the regular opera-

tion of the enterprise.” Wulf, 883 F.2d at 861 (quoting

Rankin, 483 U.S. at 388, 107 S.Ct. at 2899). See also

Pickering, 391 U.S. at 570-73, 88 S.Ct. at 1735-37.

In determining that the scales of justice tip in favor

of the public institution for this case, the majority relied

SSa

upon the educational, vocational and rehabilitative na-

ture of the services provided to the troubled adolescent

girls combined with its "valid and important interest in

maintaining discipline and esprit de corps." The majority

concludes the chain of command rule was adopted to

protect this interest and that by violating the chain of

command, the School had just cause to dismiss Mekss

from employment on grounds of insubordination. How-

ever, "[p]hrases like ‘esprit de corps’ or ‘insubordination’

should not lull judges into uncritical deference to public

employers’ decisions." Massaro, supra, 61 S.Cal.L.Rev. at

68.

The majority analogizes the School to a police force

and stressed the importance of discipline, harmony, and

loyalty in a law enforcement organization and holds that

Mekss’ telephone calls to the Executive Secretary of the

Board "directly impaired Geisler’s authority and ability

to discipline the staff" and had a "direcf and detrimental

impact on Geisler’s confidence in Mekss’ loyalty to the

School and to him." However, it then modifies the Per-

sonnel Review Board’s conclusions by eliminating the

conclusion that Mekss created disharmony in the func-

tion of the school by Stating, "we are not persuaded that

‘substantial evidence in the record mes the actual

creation of disharmony by Mekss."

The Tenth Circuit Court of Appeals addresses the

issue of disruption of the working environment in Cona-

way, 853 F.2d at 797-98:

Disruptions in the working relationship between

Conaway and his supervisors, and general dishar-

mony in the office, are foreseeable consequences

when an employee reports improper activities of

coworkers or supervisors. We recognize, as did Jus-

tice Powell in his concurring opinion in Rankin, "that

a public employer must have authority to maintain

the efficiency as well as the integrity of his office."

Rankin, 107 S.Ct. at 2899 n.*. We also recognize,

S6a

however, the vital interest the public has in the in-

tegrity of those who administrate their government.

Brockwell v. Norton, 732 F.2d at 668. It would be

anomalous to hold that because the employee’s

whistle blowing might jeopardize the harmony of the

office or tarnish the integrity of the department, the

law will not allow him to speak out on his percep-

tion of potential improprieties or department corrup-

tion. See Porter v. Califano, 592 F.2d 770, 773 (Sth

Cir. 1979).

Another consideration under Pickering is whether

Mekss’ speech interfered with the performance of her

daily job responsibilities. Conaway, 853 F.2d at 798. It is

uncontested that Mekss was a valued employee up to the

time of her discharge and her job performance was con-

sistently evaluated as good to excellent. Furthermore,

under Pickering, the danger to an agency’s successful

function due to an employee’s speech is minimal where

the employee serves no confidential, policy making or

public contact role. Rankin, 483 U.S. 378, 107 S.Ct. 2891.

Mekss worked as a fiscal control officer and served in no

confidential, policy making or public contact role and

therefore posed a minimal threat to the smooth function

of the School. Her remarks did not interfere with the

performance of her duties nor the ability of her co-work-

ers to perform their duties.

Mekss was dismissed for the content of her speech.

"Vigilance is necessary to ensure that public employers

do not use authority over employees to silence discourse,

not because it hampers public functions but simply be-

cause superiors disagree with the content of employees’

speech." Rankin, 483 U.S. at 384, 107 S.Ct. at 2897 (em-

phasis added). She would not have been dismissed for

circumventing the lines of authority had she contacted

the Board with praise for their investigation or to com-

mend the School’s operation.

The majority has determined that the manner of

S7a

Mekss’ communication violated the School’s chain of

command. The majority, in upholding Mekss’ dismissal,

places undue emphasis on this issue. Once again, the

majority fails to recognize tha* her speech at this junc-

ture did not address the operation of the School per se,

but rather the Board and the manner in which they con-

ducted their investigation into matters concerning the

School. Therefore, it would have been wholly inappropri-

ate for Mekss or any citizen to address concerns about

the investigation through the established lines of author-

ity at the School. She had a criticism of the Board and

went directly to that Board. Further, she went directly to

the Executive Secretary upon the recommendation of the

Secretary of State, Kathy Karpan.

The Eighth Circuit Court of Appeals, in upholding

the right of a police department dispatcher to anony-

mously report, outside the department’s chain-of-com-

mand, the perceived misconduct of a police officer, held

that "[t]he enforcement of [a chain-of-command] rule

against an employee seeking to criticize the very superior

empowered to review [the employees’ complaints] would

impermissibly chill first amendment rights. Atcherson v.

Siebenmann, 605 F.2d 1058, 1063 n.S (8th Cir. 1979)."

Brockell v. Norton, 732 F.2d 664, 668 (8th Cir. 1984). See

also nnapp v. Whitaker, 757 F.2d 827 (7th Cir.), cert.

denied 474 U.S. 803, 106 S. Ct. 36, 88 L.Ed.2d 29 (1985)

and Anderson v. Central Point School Dist. No. 6, 746

F.2d S505 (9th Cir. 1984), upholding the lower court’s

injunction barring enforcement of any policy which pro-

hibits direct communication by teachers on matters of

public concern with members of the school board.

In a case where an employee was disciplined for vio-

lation of a government department’s "chain-of-command"

policy by speaking at a public meeting of the county’s

government board about deficiencies in the department,

the Third Circuit Court of Appeals said in Czurlanis v.

Albanese, 721 F.2d 98, 106 (3d Cir. 1983):

58a

A policy which would compel public employees to

route complaints about poor departmental practices

to the very officials responsible for those practices

would impermissibly chill such speech. * * * It would

deter "whistle blowing" by public employees on mat-

ters of public concern. It would deprive the public in

general and its elected officials in particular of im-

portant information about the functioning of govern-

ment departments. We do not read the "efficiency of

public services" factor referred to in Pickering to ex-

tend to a chain-of-command policy as interpreted

and appliea by the defendants.

See also the post-Connick case of Jurgensen v. Fairfax

County, Va., 74S F.2d 868 (4th Cir. 1984), Butzner, J.,

dissenting.

Finally, Mekss has the burden of showing that her

speech was a substantial or motivating factor in her dis-

missal by the School to establish a prima facie case.

Doyle, 429 U.S. at 287, 97 S.Ct. at 576; Conaway, 853 F.

2d at 795. Once her prima facie case is established, the

burden then shifts to the School to show it was not a

motivating factor in the dismissal, that it would have ter-

minated her employment anyway. Wulf, 883 F.2d at 857;

Koch, 847 F.2d at 1440 n.11. Because both the School

and the Personnel Review Board cite the employee’s

protected conduct as one of the specific acts of insubor-

dination causing her dismissal, it is not necessary to ana-

lyze whether either party carried their burden of proof.

Perhaps another motivating factor in Mekss’ dismis-

sal was the affect her "insubordination" had on Geisler’s

ego as illustrated by the incident invoiving the "letter of

apology." In order to resolve their dispute and as an at-

tempt to impose discipline, Geisler presented Mekss with

three options: resignation, dismissal, or writing a letter of

apology. Responsively, she opted to draft the letter of

apology. However, Geisler promptly deemed it unaccept-

able because, although she apologized, she did not re-

59a

cant her earlier criticisms.

Mekss spoke on a matter of public concern. Her

First Amendment interests, as a citizen, outweighed any

slight impairment in the efficient and harmonious opera-

tion of the School. Pickering, 391 U.S. 563, 88 S.Ct. 1731.

A public employee should have the right to speak on

matters of public concern without fear of being dis-

charged. Connick, 461 U.S. 138, 103 S.Ct. 1684; Schalk,

906 F.2d 491. She was a good employee and the state

has an interest in retaining such employees. Competent

management should have been able to address her con-

cerns and control any insubordinate behavior without

(almost summarily) dismissing her. Under the circum-

stances of this case, termination was neither fair nor the

least restrictive alternative available to the School. The

government’s violent reaction to employee dissent is

clearly not justified in this case.

There is an even more oppressive message of danger

for the public employee who is concerned about the ser-

vices which are being provided by his or her public agen-

cy. The concurrence in part and dissent in part in

Leonard v. Converse County School Dist. No. 2, 788 P.2d

1119 (Wyo.1990) was emphatically motivated by the

same concern for employment if management has an un-

principled right to attack non-conforming performance,

Wulf, 883 F.2d 842, as "insubordination" or "disloyalty."

History leaves no doubt that a singular cause of the

destruction of empires and national governments has fol-

lowed the "three blind mice" syndrome with disregard of

the message and execution of the messenger. Equally ap-

parent from this decision, we retell state government em-

ployees: "Ignore agency problems or management mis-

conduct since the only one to be fired will probably be

you." Compare, however, the current Tenth Circuit Court

of Appeals decision in Considine v. Board of County

Com’rs of County of Adams, State of Colo., 910 F.2d 695

(10th Cir. 1990).

60a

Attacking whistleblowers where a sincere purpose to

improve government is the goal by the subterfuge of

claimed disharmony or insubordination will inevitably re-

sult in bad government and irresponsible management.

Like Leonard, 788 P.2d 1119 and Doidge v. State, Bd. of

Charities and Reform, 789 P.2d 880 (Wyo.1990), Urbigkit,

J., dissenting, we separate state employees from due

process and their constitutional rights, Schalk, 906 F.2d

491, since, in the exercise of those rights, we then justify

employment termination.

This case again demonstrates the use of the dual

foot soldiers of disharmony and non-conformity who then

become prison wardens to guard against bothersome

conduct or troubling criticism by denying the employee

his or her constitutional right to speak out about govern-

ment and its operation.

Accordingly, I dissent.

6la

IN THE SUPREME COURT, STATE OF WYOMING

APRIL TERM, A.D, 1991

REGINA MEKSS,

Appellant

(Petitioner),

v. No. 89-235

WYOMING GIRLS’ SCHOOL,

STATE OF WYOMING,

Appellee

(Respondent.).

ll i i i i he ee

ORDER DENYING PETITION FOR REHEARING

This case came on before the court upon the Peti-

tion for Rehearing and Brief in Support of Appellant’s

Petition for Rehearing filed herein on June 27, 1991 on

behalf of Appellant, and the court, having reviewed the

file, the record, the opinion of the court, the Petition for

Rehearing and the Brief in Support of Appellant’s Peti-

tion for Rehearing, and having carefully considered the

matters presented therein, finds that the Petition for Re-

hearing should be denied, and it, therefore, is

ORDERED that the Petition for Rehearing be, and

the same hereby is, denied.

July 23rd, 1991.

BY THE COURT:

s/s

WALTER URBIGKIT

Chief Justice

URBIGKIT, C.J., and GOLDEN, J., would grant the

Petition for Rehearing.

62a

IN THE DISTRICT COURT

OF THE STATE OF WYOMING

WITHIN AND FOR THE FOURTH JUDICIAL

DISTRICT, SHERIDAN COUNTY

REGINA MEKSS, )

Petitioner, )

)

VS. ) Civil Action No.

) C€192-5-89

WYOMING GIRLS’ SCHOOL, )

STATE OF WYOMING, )

)

Respondent. )

ORDER

The Petition For Review of the above-entitled

matter having come on for hearing before this Court,

and the Court having reviewed the file herein and having

heard the arguments of counsel finds generally in favor

of the Respondent and against the Petitioner.

IT IS, THEREFORE, HEREBY ORDERED, AD-

JUDGED AND DECREED that the Order of the Per-

sonnel Review Board dated May 15, 1989, filed May 17,

1989, be affirmed except for paragraphs 2 and 4 of their

conclussions [sic], which conclusions are hereby specifi-

cally reversed.

IT IS FURTHER ORDERED that each party bear

their own costs-and attorney fees.

DATED this 11 day of September, 1989.

s/s

James N. Wolfe,

District Judge

63a

May 15, 1989

Mr. Dan Romero

DAFC, Personnel Division

Emerson Building

Cheyenne, WY 82002-0060

RE:

Personnel Review Board Decision for the Peti-

tion from Regina Mekss (Docket No. 89-1)

Dear Mr. Romero:

We, the Personnel Review Board, make the following

Findings of Fact:

Ms. Mekss had a good to excellent work record

as a Fiscal Control Technician. She appeared to

have good rapport with and be liked by her

fellow workers.

Ms. Mekss was apparently self-appointed to call

attention to the issues set forth in the

anonymous letters, one of which she authored.

Ms. Mekss failed to exhaust the normal person-

nel system options by taking issues directly to

Mr. Geisler prior to proceeding in the manner

in which she did.

Ms. Mekss should have immediately ended the

11/30/88 telephone conversation with Mr. K.

Gary Sherman once she was advised she was at

risk in pursuing the issues as she was, even

though that avenue had initially been invited by

Ms. Kathy Karpen.

Mr. Geisler applied some sort of discipline in

64a

some manner to Ms. Mekss between March and

December, 1988.

Both Ms. Mekss and Mr. Geisler failed to allow

the issues to be aired directly and failed to

weigh the full consequence of their actions. Both

parties at times acted hastily and improperly and

directly contributed to the dismissal.

We, the Personnel Review Board, make the following

Conclusions:

Ms. Mekss created disharmony in the function of

the Wyoming Girls’ School and circumvented

established lines of authority.

Mr. Geisler did not fully comply with the DAFC

Personnel Rules and Regulations in his applica-

tion by consistent, well-defined, and progressive

disciplinary measures prior to his dismissal of

Ms. Mekss.

Ms. Mekss’ request for reinstatement as Fiscal

Control Technician is denied as not being in the

best interests of either party or the overall func-

tioning of the Wyoming Girls’ School.

The Wyoming Girls’ School should remunerate

Ms. Mekss five (5S) months salary (and associ-

ated benefits). The remuneration should be

based upon Ms. Mekss’ salary at the time of her

dismissal. This compensation should constitute

full and complete settlement.

Mr. Geisler and Ms. Mekss should accept the

above Conclusions, refrain from further actions

related to these Conclusions and allow the dedi-

cated and competent staff of the Wyoming Girls’

School to concentrate on activities which are of

direct service to the School’s residents and which

are in direct fulfillment of the mission of the

6Sa

Wyoming Girls’ School.

Respectfully submitted,

s/s 5/15/89

James W. Stresky dated

Fred W. Heryford dated

s/s 5/15/89

John R. Giurgevich dated

BG:kn

66a

August 12, 1988

Governor Mike Sullivan

Wyoming Board of Charities and Reform

Herschler Building

Cheyenne, Wyoming 82002

Dear Governor Sullivan and Members of the Board:

There are grave problems in administration here at the

Wyoming Girls’ School which are growing progressively

worse and which are very negatively affecting the morale

and performance ability of the staff and, ultimately,

quality of service rendered by this agency.

It is important that you know that the writers of the

anonymous letter to you dated June 25, 1988 are not

alone. They are not speaking for only a select few

malcontents. There are many staff members who would

reinforce the concerns mentioned and add many more.

This became alarmingly obvious in the aftermath of Jack

Geisler’s receipt of said letter and his response. Mr.

Geisler had photocopies of the anonymous letter and his

response circulated to all staff. The accompanying

instructions mentioned nothing about feedback; one can

only speculate as to his purpose in circulating the

information. The surprising result, however, is how many

staff members are privately sharing with each other their

agreement with parts, if not all, of the anonym

This text is long and has been trimmed here. Open the source document for the complete record.

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.