Appendix — Shands v. City of Kennett

938-745 00

;

' OCT 25 1993 °

IN THE

SUPREME COURT of the UNITED STATES

OCTOBER TERM, 1993

MITCHELL SHANDS, DON KEY and

FORREST BUSCH,

Petitioners,

VS.

CITY OF KENNETT, and WARREN KARSTEN, JOHN

MALLOTT, JERRY TALLEY, JOHN VARDELL, and

JINGO COLE, Individually and in their official capacities,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

APPENDIX

JIM R. BRUCE II

403 St. Francis St.

Post Office Box 37

Kennett, Missouri 63857

Counsel for Petitioners

October, 1993

TABLE OF CONTENTS

NE OS ORR TS ie NA ok ik NGM A ws Al

(Order denying Petition for

Rehearing and Suggestions

for Rehearing en banc)

“ephecce e SE EA SS nna ao A2

(Opinion of Eighth Circuit

Court of Appeals)

ee eM nk ck ad nn daea dues Al8

(Judgment of U.S. District

Court for the Eastern

District of Missouri)

Al

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 92-1790EMCG

No. 92-1978EMCG

Mitchell Shands, et al.,

Appellants, Order Denying Petition

for Rehearing and

Suggestion for Rehearing

En Banc

¥.

City of Kennett, et al.,

* * * * * * ~ *

Appellees.

The suggestion for rehearing en banc is denied. The

petition for rehearing is also denied.

July 9, 1993

Order Entered at the Direction of the Court:

Michael E. Gans, Clerk

U.S. Court of Appeals, Eighth Circuit

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UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 92-1790

Mitchell Shands, Don Key,

Forrest Busch,

Appellants,

Vi

City of Kennett, Warren

Karsten, John Mallott, Jerry

Talley, John Vardell, Jingo

Cole, individually and in

their official capacities,

Appellees.

No. 92-1978

Mitchell Shands, Don Key,

Forrest Busch,

Appellees,

Ws

City of Kennett, Warren

Karsten, John Mallott, Jerry

Talley, John Vardell, Jingo

Cole, individually and in

their official capacities,

Appellants.

+ + & * + + + & & & &

* *% * * * * + 3

Appeals from the United

States District Court for

the Eastern District of

Missouri.

Submitted: December 16, 1992

. Filed: May 21, 1993

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Before WOLLMAN and MORRIS SHEPPARD ARNOLD,

Circuit Judges, and BATTEY, District Judge.

WOLLMAN, Circuit Judge.

Forrest Busch, Don Key, and Mitchell Shands brought this

action under 42 U.S.C. §1983 against the City of Kennett,

Missouri, and several city officials: Mayor Warren Karsten, Fire

Chief John Mallott, and City Councilman Jerry Talley, John

Vardell, and Jingo Cole. Plaintiffs appeal from a judgment

notwithstanding the verdict entered by the district court in favor

of defendants. Defendants cross-appeal from the district court’s

denial of their motion for a new trial. We affirm the judgment

notwithstanding the verdict and therefore do not address the

cross-appeal.

I.

The City of Kennett, having a population of approximately

12,000, operates a volunteer fire department. At the time of

the events giving rise to this lawsuit, the department was staffed

by seven full-time firemen and twenty-four volunteers. It was

the dismissal of plaintiffs from their positions as part-time

volunteer firemen that triggered this lawsuit.

In 1988, the fire department had three officers, all

volunteers: Fire Chief Bill McMahon, Assistant Fire Chief Don

Key, and Captain Bob Holder. In the fall of 1988, the Kennett

City Council decided to replace McMahon with a full-time fire

chief. On December 6, the council hired John Mallott for the

position. Mallott is a professional fireman who had previously

been living in a neighboring town. The hiring of Mallott stirred

up considerable controversy within the fire department. Many

department members believed that the fire department did not

need a full-time chief. Other members were upset because the

city had hired someone from outside the city rather than

someone from within the fire department.

*“The HONORABLE RICHARD H. BATTEY, United States

District Judge for the District of South Dakota, sitting by designation.

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When Mallott became chief in January 1989, a volunteer

firefighter position was vacant. David Horton, who had served

as a volunteer from 1982 to 1986, applied for the position.

After speaking with Horton, Mallott informed both Key and

Holder that he intended to hire Horton. On March 21, 1989,

Mallott recommended to the city council that Horton be hired

as a firefighter. In accordance with its procedures, the city

council deferred consideration of the recommendation until its

next meeting, scheduled for April 4.

Having learned that Horton had been recommended for the

firefighter position, plaintiff Busch spoke to Councilman Bill

Wilson on March 31, 1989. Busch asked Wilson to make a

motion to table the hiring of Horton for Two weeks. According

to Busch, he told Wilson that the fire department had a safety

problem that would be taken care of in two weeks. According

to Wilson, however, Busch did not mention any safety problem;

rather, Busch said only that there had been some problems with

Horton in the past. Wilson informed Busch that he would move

to table the hiring but would need someone to second the

motion.

The safety problem to which Busch allegedly referred

concerned a new policy of City Light, Gas & Water (City Light),

which had recently instructed the fire department not to

disconnect electric and gas meters at fire scenes because it

wanted only its employees to disconnect meters. Disconnecting

the meters turns off a building’s electricity and gas supply.

Consequently, if a fire department officer wanted the meters

disconnected from a building at a fire scene, he had to call City

Light, which would then send one of its employees to disconnect

them. Normally, the employee would arrive at the fire scene

about fifteen minutes later. This policy created a problem for

the firefighters, for they either had to postpone their firefighting

until the City Light employee arrived or risk being injured by a

live electric wire or a gas explosion.

On April 1, a number of the members of the fire department

had breakfast at the fire station. As they were cleaning up

afterwards, plaintiffs and Holder discussed some surplus

firefighting equipment that Mallott had purchased since taking

ee

AS

command. They thought the equipment was obsolete and

dangerous. The four men also discussed the problem created by

City Light’s new policy. To solve the problem, they believed

that the fire department needed to hire a City Light employee

to disconnect meters. They said that a person who was

currently working for City Light had applied for a firefighter

position and that they believed he should be hired. They told

Cole that Busch had spoken with Councilman Wilson about

making a motion to table the hiring of David Horton and asked

Cole to second the motion.

At the city council meeting on April 4, Wilson moved to

table the hiring of Horton, stating that there had been problems

with him in the past. Cole seconded the motion. Nonetheless,

the motion was defeated, and the council voted to hire Horton.

Over the next few days, Mallott learned that plaintiffs and

Holder had asked Councilman Cole to table the hiring of

Horton. Additionally, Mallott learned from Horton that one

motive behind plaintiffs’ visit to Cole was the desire to

undermine Mallott’s authority. Plaintiff Shands had told Horton

that he had spoken with Cole to show Mallott that he [Mallott]

could not get everything he wanted from the council. After

obtaining the approval of Mayor Karsten and the fire

department committee, Mallott dismissed plaintiffs and Holder

on April 10. Their dismissal letters stated that they had been

discharged for acts of insubordination and misconduct. The next

day seventy-five percent of the Kennett firemen walked out in

protest of the discharges.

The discharges and the walkout received considerable media

coverage in Kennett. Linda Redeffer, a reporter of the Daily

Dunklin Democrat, wrote a series of articles about the fire

department following the discharges. In an April 11 interview,

Mallott told Redeffer that the discharges were the result of "a

personnel matter that was dealt with according to city policy.”

In a subsequent interview, Mallott told Redeffer that the men

had been “insubordinate to a standing order to city policy.”

Mayor Karsten and Councilman Talley, chairman of the fire

department committee, also spoke with Redeffer about the

discharges and the walkout. In addition to speaking with

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Redeffer, Mallott told a television news reporter that the

firemen had been discharged for acts of misconduct and

insubordination.

On April 18, the four discharged firemen appeared at a city

council meeting. Holder, acting as their spokesman, read a

prepared statement, telling the council that they were not guilty

of any wrongdoing. On May 4, the council held a special closed

session to consider the discharges. Witnesses testified

concerning the reasons for the discharges, and the dismissed

fireman, with the aid of counsel, were allowed to question these

witnesses and make their own statements. On May 14, the city

council voted not to reinstate the four men. The council found

that their attempt to interfere with the hiring of David Horton

constituted a sufficient basis for their discharges. On May 17,

the council released a statement to dispel rumors and

misinformation concerning the discharges. The release stated

that the discharged firemen had not been accused of or

dismissed for any financial misdealings, illegal activities, or

activities involving moral turpitude. Rather, the discharges were

the result of fire department personnel matters.

Some two weeks later, plaintiffs filed this section 1983 action.

In Count I, plaintiffs alleged that they had been discharged in

retaliation for exercising their First Amendment right to free

speech. In Count II, they alleged that defendants had deprived

them of a Fourteenth Amendment liberty interest without due

process of law. At the conclusion of a five-day trial, the jury

returned verdicts in favor of all plaintiffs and against all

defendants on both counts. Following the jury verdicts,

defendants made a motion for judgment notwithstanding the

verdict! and for a new trial. The district court denied the

motion for a new trial, but granted judgment notwithstanding

the verdict on both counts in favor of defendants.

1 Now entitled a motion for judgment as a matter of law. See Fed. R. Civ.

P. SO(b) (as amended effective December 1, 1991).

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II.

We first consider whether the district court erred in granting

defendants’ motion for judgment notwithstanding the verdict on

Count I, the First Amendment claim. Before addressing the

specific issues raised by the First Amendment claim in this case,

we Outline the general framework for analyzing claims by public

employees that they have been improperly discharged for

exercising their right to free speech.

Whether a public employee’s speech is protected by the First

Amendment requires a two-step judicial inquiry. The first issue

is whether the employee’s speech can be "fairly characterized as

constituting speech on a matter of public concern." Connick v.

Myers, 461 U.S. 138, 146 (1983); Bausworth v. Hazelwood Sch.

Dist., 986 F.2d 1197, 1198 (8th Cir. 1993). If the speech

addresses a matter of public concern, the court must balance the

‘interests of the [employee], as a citizen, in commenting upon

matters of public concern and the interests of the State, as an

employer, in promoting the efficiency of the public services it

performs through its employees." Pickering v. Board of Educ.,

391 U.S. 563, 568 (1969). Both of these questions are questions

of law for the court. Connick, 461 U.S. at 148 n.7, 150 n.10.

Any underlying factual disputes concerning whether the

plaintiffs speech is protected, however, should be submitted to

the jury through special interrogatories or special verdict forms.

Robert v. Van Buren Pub. Schs., 773 F.2d 949, 954-55 (8th Cir.

1985); Bennis v. Gable, 823 F.2d 723, 729 & n.6 (3d Cir. 1987).

For example, the jury should decide factual questions such as

the nature and substance of the plaintiff's speech activity,

Bennis, 823 F.2d at 729, and whether the speech created

disharmony in the work place, McGee v. South Pemiscot School

District R-V, 712 F.2d 339, 342 (8th Cir. 1983). The trial court

should then combine the jury’s factual findings with its legal

conclusions in determining whether the plaintiff's speech is

protected. Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 315

(8th Cir. 1986), cert. denied, 482 U.S. 905 (1987); Roberts, 773

F.2d at 955.

If any speech is found protected under the above analysis,

the plaintiff must show that the protected spcech was a

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substantial, or motivating, factor in the defendant’s decision to

discharge him. Mount Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977). If the plaintiff meets this

burden, the burden then shifts to the defendant to show by a

preponderance of the evidence that the plaintiff would have

been discharged regardless of the protected speech activity. Jd.

These two causation questions are questions of fact for the jury.

Cox v. Dardanelle Pub. Sch. Dist., 790 F.2d 668, 675 (8th Cir.

1986); Roberts, 773 F.2d at 954.

In this case, the district court failed to follow this framework.

The court did not determine as a matter of law whether any of

plaintiffs’ speech was protected by the First Amendment,

refusing plaintiffs’ request that it instruct the jury that it had

determined that plaintiffs’ speech addressed matters of public

concern. Rejecting plaintiffs’ proffered special interrogatories

and verdict forms, the court instructed the jury to determine

whether any of plaintiffs’ alleged speech activity was protected

by the First Amendment. We, of course, must address this issue

as a question of law. Because it is a question of law, we may

address this issue for the first time on appeal. Roberts, 773 F.2d

at 955. As this issue comes before us in a motion for judgment

notwithstanding the verdict by defendants, we consider the

evidence in the light most favorable to plaintiffs. See, e.g., K &

S Partnership v. Continental Bank, N.A., 952 F.2d 971, 976-77

(8th Cir. 1991), cert. denied, 112 S. Ct. 2993 (1992); McGee, 712

F.2d at 343.

A. Connick Analysis

As outlined above, the initial question in determining

whether an employee's speech is protected is whether the

speech addressed a matter of public concern, that is, a matter of

political, social, or other concern to the community. Connick.

461 U.S. at 146. In making this determination, we examine the

content, form, and context of the speech, as revealed by the

whole record. Jd. at 147-48.

Plaintiffs spoke to Councilman Cole about three issues: (1)

Mallott’s purchase of firefighting equipment, (2) the fire

department’s need to hire someone to disconnect meters, and

AY

(3) the hiring of David Horton. The purchase of firefighting

equipment and the department’s need to hire someone to

disconnect meters addressed matter of public concern; both

topics implicated the quality and safety of the fire department.

The purchase of firefighting equipment also implicated the

manner in which the city was spending public funds.

The decision to hire David Horton, however, is not so easily

characterized as a matter of public concern. Defendants argue

that the decision to hire Horton was a personnel matter and

therefore not a matter of public concern. Plaintiffs contend,

however, that the decision to hire Horton was not purely a

personnel matter because it was directly linked to and

inseparable from the issue of hiring a firefighter to disconnect

meters. According to plaintiffs, they wanted to postpone the

hiring of Horton so that the city-would hire someone authorized

to disconnect meters.

Although the two issues are undoubtedly related, they are

nonetheless separable. The four firemen could have informed

Councilman Cole about the need to hire someone to disconnect

meters without requesting that the question of hiring Horton be

tabled. When they asked Cole to second the motion, they

entered the realm of interfering with a government personnel

decision, which is normally not a matter of public concern.

Connick, 461 U.S. at 147. Their request to Cole, then, touched

upon a matter of public concern only in a tangential, attenuated

manner.

B. Pickering Balance

Having found that two components of plaintiffs’ speech

directly addressed matters of public concern and that one

component tangentially did, we must apply the Pickering test to

plaintiffs’ speech. As stated earlier, we balance the "interests of

the [employee], as a citizen, in commenting upon matters of

public concern and the interests of the State, as an employer, in

promoting the efficiency of the public services it performs

through its employees." Pickering, 391 U.S. at 568. The

Pickering “balance requires full consideration of the

government's interest in effective and efficient fulfillment of its

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responsibilities to the public." Connick, 461 U.S. at 150. The

government has a legitimate purpose in "promot|[ing] efficiency

and integrity in the discharge of official duties, and to

mainta[in][ing] proper discipline in the public service.” Jd. at

150-51 (quoting Ex parte Curtis, 106 U.S. 371, 373 (1882)). As

Justice Powell observed,

To this end, the Government, as an employer,

must have wide discretion and control over the

management of its personnel and internal affairs.

This includes the prerogative to remove

employees whose conduct hinders efficient

operation and to do so with dispatch. Prolonged

retention of a disruptive or otherwise

unsatisfactory employee can adversely affect

discipline and morale in the work place, foster

disharmony, and ultimately impair the efficiency

of an office or agency.

Id. at 151 (quoting Arnett v. Kennedy, 416 U.S. 134, 168 (1974)

(Powell, J., concurring)).

In balancing an employee’s and an employer’s competing

interests, we weigh six interrelated factors:

(1) the need for harmony in the office or work

place; (2) whether the government’s

responsibilities require a close working

relationship to exist between the plaintiff and

co-workers when the speech in question has

caused or could cause the relationship to

deteriorate; (3) the time, manner, and place of

the speech; (4) the context in which the dispute

arose; (5) the degree of public interest in the

speech; and (6) whether the speech impeded the

employee’s ability to perform his or her duties.

Bowman v. Pulaski County Special Sch. Dist., 723 F.2d 640, 644

(Sth Cir. 1983) (citing Connick, 461 U.S. at 151-54). The

Pickering balance is flexible, and the weight to be given to any

one factor depends upon the specific circumstances of each case.

Germann v. City of Kansas City, 776 F.2d 761, 764 (8th Cir.

1985) (citing Egger v. Phillips, 710 F.2d 292, 319 (7th Cir.), cert.

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denied, 464 U.S. 918 (1983)), cert. denied, 479 U.S. 813 (1986).

Applying the six Pickering factors to this case, we find that

the balance tips in favor of defendants.

1. The Need for Harmony in the Work Place

Plaintiffs argue that their speech is protected under the

Pickering balance because defendants failed to show that the

speech caused actual disruption within the fire department.

Evidence of actual disruption, however, is not required in all

cases. Germann, 776 F.2d at 765. Rather, the amount of

disruption that a government employer must tolerate depends

on several factors in the Pickering calculus: the extent to which

the speech addresses a matter of public concern, Connick, 461

U.S. at 152, the type of service the employer provides, cf.

Hughes v. Whitmer, 714 F.2d 1407, 1419 (8th Cir. 1983),

cert.denied, 465, U.S. 1023 (1984), and the context of the

speech, see Germann, 776 F.2d at 765.

As a public safety organization, a fire department, like a

police department, has a more significant interest than the

typical government employer in regulating the speech activities

of its employees in order "to promote efficiency, foster loyalty

and obedience to superior officers, maintain morale, and instill

public confidence” in its ability, Hughes, 714 F.2d at 1419

(quoting Gasparinetti v. Kerr, 568 F.2d 311, 315-16 (3d Cir.

1977), cert. denied, 436 U.S. 903 (1978)). Cf. Germann, 776

F.2d at 765 (holding that a fire captain's speech was not

protected). "When lives may be at stake in a fire, an esprit de

corps is essential to the success of the joint endeavor."

Janusaitis v. Middlebury Volunteer Fire Dept., 607 F.2d 17, 26 (2d

Cir. 1979). Whether in a large professional department or in a

small volunteer one like Kennett’s, firemen must follow their

superiors’ orders and work together harmoniously to ensure

their own and the public’s safety. Accordingly, Mallott’s

decision to discharge plaintiffs is entitled to judicial deference

on two levels. Cf. Hughes, 714 F.2d at 1419 (stating that police

departments are entitled to judicial deference). First, his

determination that the four firemen’s speech had caused or

would cause dissension and disruption is entitled to considerable

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judicial deference. Second, his response to the actual or

perceived disruption--the discharge of the men--is likewise

entitled to deference. Id.

Giving his decision due deference, we conclude that Mallott

reasonable believed that the discharged firemen’s speech was an

attempt to undermine his authority and had led or would lead

to disruption in the department. Of all the members of the fire

department, plaintiffs and Holder possessed the greatest

potential to undermine the chief's authority. As assistant fire

chief and fire captain, respectively, Key and Holder were the

only other officers in the department: Holder had been a

fireman for twenty years; Busch for twenty-two years; Key for

twenty-four years; and Shands for thirty years. Before going to

Councilman Cole, the men never met directly with Mallott to

discuss their concerns about the equipment or the need to hire

someone to disconnect meters--even though Mallott had

indicated to Key and Holder that he intended to hire Horton.

Instead of discussing their concerns with Mallott, they

circumvented the chain of command. Although plaintiffs deny

that they intended to undermine him, Mallott had reason to

believe otherwise. Shands told Horton that he had gone to

Councilman Cole because he had wanted to show Mallott "that

he [Mallott] could not have his way about every little thing."

Upon receiving this information trom Horton, Mallott became

firmly convinced that he had a serious personnel problem and

that he should discharge the four men.

2. Whether the Government’s Responsibilities Require a

Close Working Relationship

Plaintiffs argue that there was less potential for disruption in

the fire department because they were not required to work

closely with Mallott. They observe that, for the most part, they

saw Mallott only at fires and department meetings. Although a

close working relationship is an important factor in some cases,

such as Connick, we have stated that a “blind insistence upon

the presence of an intimate working relationship gives to

Pickering precisely that rigidity and formalistic structure that the

Court . . . denied in Connick." Germann, 776 F.2d at 765

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(quoting Gonzales v. Benavides, 712 F.2d 142, 148 (Sth Cir.

1983)). In fact, in some cases, such as this one, the absence of

a close working relationship requires that an employer be given

more latitude in regulating the speech of an employee. Id. That

is, in a volunteer fire department like Kennett’s, where the fire

chief does not closely supervise those under his command,

personal loyalty to the chief is critical to the management

structure of the fire department. See id. Mallott had to depend

especially on Key and Holder, as his only officers, to support

and implement his policies and orders.

3. Time, Manner, and Place of the Speech

Plaintiffs argue that their speech is entitled to a heightened

level of protection because they spoke privately with Cole on

their own tine. In Connick, the Supreme Court recognized that

private expression by an employee on his own time and outside

the work place may bring differed factors into the Pickering

calculus. Id. at 152-53 & n.13 (quoting Givhan v. Western Line

Consolidated Sch. Dist., 439 U.S. 410, 415 & n.4 (1979)). In

Rankin v. McPherson, the Court stated further that a purely

private conversation will rarely justify a discharge of a public

employee. 483 U.S. 378, 388 n.13 (1987).

Although plaintiffs’ conversation with Cole was private and

on their own time, it was not like the conversation in Rankin,

where an employee spoke privately to a co-worker. As Justice

Powell recognized, the risk that a single private comment like

the one in Rankin will disrupt the work place or lower morale

is low. Id. at 393 (Powell, J., concurring). In Rankin, there was

no suggestion that the employee’s speech or ideas were going to

reach the general public. /d. at 388. conversely, in the case at

hand, plaintiffs asked Cole to take public action. They had to

expect that a request to table the hiring of Horton would raise

questions and could potentially disrupt the fire department.

4. The Context of the Dispute

As the Supreme Court recognized in Connick, the context of

an employee’s speech is significant. 461 U.S. at 153. The same

employee speech may be protected in one context but not in

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another; an employee’s speech that arises from a_ purely

academic interest is entitled to more protection than speech that

arises from a personal dispute with a government employer. /d.

When employee speech arises from a dispute with a supervisor,

"additional weight must be given to the supervisor's view that

the employee has threatened the authority of the employer to

run" the department. I/d.

Mallott had been fire chief for only three months when

plaintiffs spoke to Councilman Cole. Shortly after Mallott had

been hired, the members of the fire department held a special

meeting at which the firemen seriously discussed walking out.

Many of the men were disgruntled because they believed a full-

time chief was not needed and that McMahon should have

continued as a volunteer chief. They were also upset because

the council had hired someone from out of town rather than

someone from within the fire department. Indeed, at Mallott’s

first meeting with the department, many members indicated that

they were upset because the council had not consulted them

about the hiring of a full-time chief. With all the public debate

and controversy surrounding his hiring, Mallott "felt like a

political basketball."

We find that in these circumstances Mallott’s decision to

discharge the four firemen should be given considerable

deference. Mallott knew that his authority as head of the fire

department was not firmly established, and he acted to prevent

his authority from being eroded further. He need not have

waited until he had lost complete command of the fire

department before reacting to the plaintiffs’ and Holder's

disruption and dissension. Connick, 461 U.S. at 151.

5. The Degree of Public Interest in the Speech

As already discussed under the Connick analysis, the fire

department’s purchase of equipment and its need for a

firefighter to disconnect meters were matters of public interest.

These issues, however, were not at the center of public debate;

they had been discussed only within the fire department.

Accordingly, we believe that the degree of public interest in

plaintiffs’ speech is outweighed by other factors in this case.

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6. Whether the Speech Impeded the Plaintiffs’ Ability to

Perform Their Duties

There was no evidence that the speech hindered plaintiffs’

ability to perform their duties as firemen. Nevertheless, this

factor is not determinative. In Connick, the Court found that

the employee’s speech was not protected under the Pickering

balance even though the employer had failed to demonstrate

that the employee's speech had impeded her ability to perform

her job responsibilities. Connick, 461 U.S. at 151.

Finding that the Pickering balance favors defendants, we hold

that plaintiffs’ speech, under the facts of this case, was not

protected by the First Amendment. Accordingly, we affirm the

judgment notwithstanding the verdict for the defendants on the

First Amendment claim.

Ill.

We next consider whether the district court erred in granting

judgment notwithstanding the verdict on Count II, the

procedural due process claim. Plaintiffs alleged in Count II that

Mayor Karsten, Councilman Talley, and Mallott had made false

and stigmatizing statements about them to the news media in

connection with their discharge and thus implicated their

Fourteenth Amendment liberty interests. They further alleged

that defendants had deprived them of procedural due process by

failing to provide a fair and meaningful hearing for them to

publicly clear their names.

In their motion for judgment notwithstanding the verdict,

defendants argued that plaintiffs had failed to show that any

stigmatizing charges were made against them in connection with

their discharges. Defendants also alleged that assuming,

arguendo, that such charges had been made and had thereby

implicated plaintiffs’ liberty interests, defendants had

nonetheless afforded plaintiffs procedural due process. The

district court agreed with these arguments and granted

defendants’ motion.

A government employee is entitled to procedural due process

in connection with being discharged from employment only

when he has been deprived of a constitutionally protected

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property or liberty interest. See e.g., Board of Regents of State

Colleges v. Roth, 408 U.S. 564, 570-71 (1972). Plaintiffs alleged

that they were deprived of liberty interests. To establish

protected liberty interests, plaintiffs were required to establish

that a city official, in connection with discharging plaintiffs,

publicly made allegedly untrue charges against them that would

stigmatize them so as to seriously damage their standings and

associations in their community, or foreclose their freedom to

take advantage of other employment opportunities. Roth, 408

U.S. at 573-74; Paul v. Davis, 424 U.S. 693, 769-10 (1976);

Bishop v. Wood, 426 U.S. 341, 348 (1976); Codd v. Vegler, 429

U.S. 624, 626-28 (1977); Hogue v. Clinton, 791 F.2d 1318, 1321-

23 (8th Cir.), cert. denied, 479 U.S. 1008 (1986); Fowler v. United

States, 633 F.2d 1258, 1262 (8th Cir. 1980); Buhr v. Buffalo Pub.

Sch. Dist. No. 38, 509 F.2d 1196, 1199 (8th Cir. 1974).

As with defendants’ motion on Count I, we examine the

evidence in the light most favorable to the non-moving party.

According to the record, Mallott was the only city official to

make public statements directly concerning plaintiffs. In an

interview with Linda Redeffer on April 11, 1989, Mallott said

that the reason for the dismissals "was a personnel matter that

was dealt with according to city policy." Also on April 11,

Mallott told a television news reporter that plaintiffs had been

discharged for acts of insubordination and misconduct. In a

subsequent interview with Redeffer, Mallott said that plaintiffs

had been dismissed because they "were insubordinate to a

standing order to city policy." He explained, however, that they

"were not insubordinate to a direct order from me."

We hold that these statements did not create the level of

stigma required to implicate a constitutionally protected liberty

interest. An employee’s liberty interest is implicated where the

employer levels accusations at the employee that are so

damaging as to make it difficult to impossible for the employee

to escape the stigma of those charges. Kyles v. Eastern Neb.

Human Servs., 632 F.2d 57, 61 (8th Cir. 1980). The requisite

stigma has generally been found in cases in which the employer

has accused the employee of dishonesty, immorality, criminality,

racism, or the like. Green v. St. Louis Housing Authority, 911

Al7

F.2d 65, 69 (8th Cir. 1990) (quoting Harison v. Bowen, 815 F.2d

1505, 1518 (D. C. Cir. 1987)); Robinson v. City of Montgomery

City, 809 F.2d 1355, 1356 (8th Cir. 1987); Nathanson v. United

State, 630 F.2d 1260, 1264-65 (8th Cir. 1980) (per curiam). A

charge of insubordination alone is normally insufficient to

implicate a liberty interest. See Kyles, 632 F.2d at 61;

Nathanson, 630 F.2d at 1264 (citing Ventetuolo v. Burke, 596

F.2d 476, 483 (1st Cir. 1979)). Although misconduct could

conceivably include accusations serious enough to implicate a

liberty interest, the general allegation of misconduct in this case

does not by itself rise to the level of constitutional stigma.

Plaintiffs argue, however, that Karsten, Talley, and Mallott

made additional statements to Redeffer that did not specifically

mention plaintiffs by name but nevertheless implied that

plaintiffs had engaged in serious misconduct. Plaintiffs argue

that these statements, when combined with Mallott’s statement

that plaintiffs had been discharged for misconduct, were

sufficient to implicate by innuendo plaintiffs’ liberty interests in

their good names and reputations.

In analyzing plaintiffs’ claim that they were stigmatized by

innuendo, we focus primarily on the evidence concerning what

the city officials actually told Redeffer, not on what Redeffer

wrote. What appeared in print is relevant only in that it

provides some evidence as to what the city officials said to

Redeffer. After carefully examining the evidence concerning

the content and context of each of these additional statements

made to Redeffer, we find that plaintiffs’ claim fails. Plaintiffs

have failed to establish that any of the statements were made in

connection with their discharges or seriously stigmatized them.

Accordingly, the district court did not err in granting judgment

notwithstanding the verdict on the procedural due process claim.

Our holding that the district court correctly granted judgment

notwithstanding the verdict on both counts makes it unnecessary

for us to discuss the other issues raised by the parties.

The judgment notwithstanding the verdict is affirmed.

Al8

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

SOUTHEASTERN DIVISION

MITCHELL SHANDS,

DON KEY, and FORREST

BUSCH,

Plaintiffs,

VS. No. S 89-0088 C

CITY OF KENNETT,

WARREN KARSTEN,

JOHN MALLOTT, JERRY

TALLEY, JOHN

and JINGO COLE,

Defendants.

Ne ee ee eee ee ee ee”

JUDGMENT

On April 10, 1989 plaintiffs were terminated as volunteer fire

fighters for the City of Kennett, Dunklin County Missouri. On

June 1, 1989, plaintiffs filed suit against all defendants

requesting damages arising from the termination and for a

variety of other kinds of relief. Various allegations of liability

were set Out in the complaint.

The case was tried to a jury and after verdicts, judgment on

November 30, 1991 was entered in favor of plaintiff Mitchell

Shands against defendants for actual damages in the sum of

Four Thousand Five Hundred and no/100 Dollars ($4,500.00)

together with punitive damages in the sum of Fifty Thousand

and no/100 Dollars ($50,000.00).

Judgment was also entered in favor of plaintiff Don Key

against defendants for actual damages in the sum of Seven

Thousand Three Hundred and no/100 Dollars ($7,300.00) and

punitive damages in the sum of Seventy-Five Thousand and

no/100 Dollars ($75,000.00).

Judgment awarding actual damages in favor of Forrest Busch

aaa

Al9

against all defendants was also entered in the sum of Five

Thousand and no/100 Dollars ($5,000.00) together with an

additional sum of Fifty Thousand and no/100 Dollars

($50,000.00) as punitive damages.

Several matters are before the Court. The first is the request

of all plaintiffs for reinstatement as fire fighters for the City of

Kennett on a volunteer basis.

The second is for attorney fees, costs and other relief to

which the plaintiffs may be entitled.

Defendants have requested a new trial or in the alternative

for judgment notwithstanding the verdict.

After reviewing the file and the motion for a new trial, and

response thereto by plaintiffs, the Court determines that there

was no prejudicial error committed in the trial of the case, and

accordingly, the request for a new trial should be denied.

The Court next considers the motion of all defendants for

judgment notwithstanding the verdict. In considering the

defendants’ motion for JNOV, the Court must give great

credence to the jury verdict, giving it the benefit of all

reasonable inferences and taking all the evidence tending to

support the verdict. In order to sustain a motion for JNOV for

the defendants, all the evidence must point one way, in their

favor, and it must not be susceptible to any reasonable

inferences supporting the jury’s verdict. Rellergert v. Cape

Girardeau County, Missouri, 924 F.2d 794, 797 (8th Cir. 1991),

aff. 724 F. Supp. 662 (E.D. Mo. 1989). Nonetheless, in order to

sustain the verdict, it must be supported by substantial evidence

and a mere scintilla is not enough. Singer Co. v. E.1. du Pont, de

Nemours and Co., 579 F.2d 433, 440 (8th Cir. 1978).

With this standard in mind, we review the evidence. The

City of Kennett is the county seat of Dunklin County, Missouri,

located in the Southern portion of the Bootheel. Although a

few full-time fire fighters formed a nucleus for fire protection,

most of the Kennett fire department was composed of

volunteers. During the time in issue, there were seven full-time

fire fighters and 24 volunteers for a total of 31. Even though

the 24 volunteers were called volunteer fire fighters, they

received $10.00 pay per fire call, irrespective of the seriousness

A20

of the fire. They also received $10.00 for every training session

which they attended. The volunteer fire fighters ranged from

attending 60% to 95% of the fires.

There are generally 140 to 160 fire calls annually and 24

training sessions; thus, if a fire fighter answered 130 calls per

year and attended 20 meetings, he would receive annually the

sum of $1,500.00 remuneration from the City.

Bill McMahan was the fire chief from 1980 to the end of

1988. In 1986, in addition io the fire chicf, there were two

captains and in 1988, rather than two captains, there was one

captain and an assistant chief.

Kennett operates under Missouri law with a mayor/council

style of government, and the members of the council are elected

and assigned to oversee certain committees. There was a fire

committee which was in existence in 1988 and 1989. The

committee was composed of three members of the council with

defendant Jerry Talley being the chairman, and defendants John

Vardell and Jerry Repstock being the other members. Although

Repstock was originally named as a defendant, he died May 14,

1990, purportedly from causes not related to this case, and his

name was removed as a party-defendant.

The fire committee generally handled all of the affairs of the

fire department and their actions and recommendations usually

were approved by the City Council. Some of the witnesses

testified that there was an internal power struggle going on over

the years between the fire fighters and the fire committee, and

the City Council. Other witnesses denied this type of power

struggle.

In late 1988, the fire committee, on its own, determined that

the fire department needed upgrading and in order to do this,

the committee felt that the department should have a

professional, full-time fire chief. In October of 1988,

advertisements for a chief were published and defendant John

Mallott, a non-Kennett resident, was -hired by the fire

committee. Mallott had substantial experience as a professional

firefighter and before January 1, 1989 was a full-time fire fighter

for the City of Sikeston, Scott County, Missouri.

Five persons on the existing fire fighting staff had applied for

A21

the job, as did others, and following the hiring of defendant

Mallott there was substantial concern expressed among the fire

fighters. The fire fighters were irritated because they were not

consulted by the fire committee concerning the new organization

and the method of selection of a new fire chief. There were

several meetings and plaintiffs and others threatened to resign.

At one time, a substantial walkout was considered but on

reflection and reevaluation by plaintiffs and others, the walkout

was averted.

Defendant Mallott took over his duties January 2, 1989, and

reorganized the force to some extent. He appointed an assistant

chief, two captains and five lieutenants, all from the existing

staff. Some of the five persons on the staff who had applied for

Mallott’s job filled the position of captain or lieutenant.

During January, February and March of 1989, Mallott began

to acquire fire-fighting equipment from surplus commodities.

Apparently, the items were acquired for a reasonable sum or by

gift, and some may have been used equipment. There was

apparently little or no communication between Chief Mallott

and the fire fighters with respect to these acquisitions. At

various meetings, the fire fighters expressed concern over the

Chief's practice as they felt that some of the equipment the

Chief had acquired was not safe or was outmoded.

In addition, the fire fighters were concerned about the lack

of an expert on the force who could be available during a fire

to disconnect electric meters. Many of the men felt that an

electrician or a fire fighter, trained in this type of work, should

be employed, so that if electricity was ever a problem during a

fire, it could be resolved by having the expert available.

Apparently, there was not a great deal of conversation, if any,

concerning all of these matters between the Chief and the men.

David Horton had been a volunteer fire fighter for the City

of Kennett between the years 1982 and 1986. He resigned in

1986 because he was somewhat disenchanted with the

department operation. After Chief Mallott: was employed,

Horton changed his mind and felt that he would like to be

reinstated as a volunteer fire fighter. He submitted an

application to Chief Mallott who indicated an interest. in

A22

reinstating Horton. Sometime in March 1989, Chief Mallott

issued a formal request to the council to reinstate Horton as a

volunteer fire fighter. The plaintiffs and other fire fighters

became aware of Horton’s application and submission to the

council and discussed it at various times. -

Following these discussions, plaintiff Busch met for breakfast

with one of the councilmen, Bil! Wilson, as they were friends.

The meeting occurred at McCormick's Steak House on March

31, 1989. There is some question as to whether anyone else was

present other than Busch and Wilson.

At the breakfast, Busch discussed with Wilson the application

of David Horton for reinstatement. Busch testified that he told

Wilson that the employment of Horton should be postponed

because additional time was needed to consider various safety

features such as the recent equipment purchases by the Chief

and the need to have someone disconnect meters at all fires.

Accordingly, Busch requested that at the council meeting Wilson

move to table the application of David Horton for a limited

period of time. Wilson testified that at the meeting, Busch

asked him to table because they had been having problems with

David Horton.

In any event. Wilson agreed to move to table Horton’s

application, but suggested to Busch that he should contact

another councilman for the purpose of having a "second" to the

motion. The next day, Saturday, April 1, 1989, many of the fire

fighters met at the fire station for breakfast which they did

occasionally. Perhaps 21 or 22 fire fighters were present

including all plaintiffs and Bob Holder, another volunteer fire

fighter. At the mecting, there was a general discussion about

the acquisition of the surplus equipment and the need to have

someone available to disconnect meters at fires and also the

application of David Horton for reinstatement. Busch indicated

that he had discussed the matter with councilman Wilson who

had agreed to move to table the application of Horton when it

was to be presented at the next council meeting. Considerable

discussion was had as to obtaining another councilman to

"second" the motion to table.

Plaintiff Key suggested that councilman Cole was his friend

A23

and that they should contact him about "seconding" Wilson’s

potential motion. Busch also indicated that he was a friend of

Cole and several persons decide to visit Cole to discuss the

matter with him.

After breakfast on April 1, 1989, all of the plaintiffs and Bob

Holder went to see Cole at his Kennett place of business. They

talked with him about fire department affairs, and reiterated

their concern about safety, the acquisition of the surplus

equipment, the need to have someone on the force available to

disconnect electric meters at a fire, and the pending application

of David Horton.

Plaintiff Key told Cole that councilman Wilson had agreed to

move to table the Horton application for two weeks, and

indicated that they needed a "second" and asked Cole if he

would "second" Wilson’s anticipated motion. After some

discussion, Cole refused to "second" the motion, although when

the meeting was actually held, he changed his mind and did

"second" the motion.

Cole testified that the plaintiffs and Holder told him that

they had no complaint about David Horton and his abilities as

a fire fighter, but they simply wanted Chief Mallott to know he

could not always get his way. They felt that tabling the motion

of Horton would show this to the Chief. Plaintiffs denied the

motivation portion of Cole’s testimony, but did state that they

had no complaint with David Horton and his abilities.

The council met April 4, 1989 and councilman Wilson did

move to table the application for reinstatement of David Horton

as a fire fighter. Cole seconded the motion and both voted in

favor of the motion, but all other council members voted against

the motion to table, and the motion was defeated. Thereafter,

the application was voted on and the council voted to reinstate

David Horton as a fire fighter. Following the mecting, Wilson

told Chief Mallott of the discussion between Busch and himself,

the fire fighters meeting of April Ist and the meeting of

plaintiffs and Holder with Cole.

After the council meeting of April 4, 1989, there was some

publicity about Horton’s reinstatement. David Horton and his

brother, Bob, by happenstance, met in Bill’s Barbeque Shop in

A24

Kennett and discussed the publicity. David understood that the

publicity was from the newspaper, and Bob Horton understood

that it was a radio broadcast. In each situation, the report was

that the reinstatement of David created some controversy at the

council meeting because David Horton was reported to be a

trouble maker. Plaintiff Shands was also in the restaurant and

overheard the conversation and then participated in it. David

told Shands that he was concerned because he felt his former

fire fighter colleagues did not want him. Shands assured both

Hortons that the motion to table, and the discussion at the

council meeting was not personally lodged against David, but

was to show Chief Mallott that he could not always get his way

before the council. At a subsequent fairness hearing, plaintift

Shands was asked about the conversation with the two Hortons,

and he said that "if those boys say that’s what I said, I guess I

did."

After further investigation into the matter following the

council meeting of April 4, 1989, Chief Mallott felt that it was

necessary to terminate the plaintiffs and Bob Holder. He

approached the members of the fire committee and was only

able to reach Talley and Repstock as Vardell could not be

located. Mallott indicated to Talley and Repstock that the

plaintiffs and Holder had gone behind his back and were

disrupting the operation of the department. Talley and

Repstock agreed with Chief Mallott and as two of the three

members of the committee could decide this matter, it was

decided to follow the recommendation of the Chief in the

absence of the third member, Vardell.

In the interim, Chief Mallott had also discussed the matter

with Mayor Karsten on May 9th. The mayor told the chief that

he would consent to terminating the plaintiffs and Holder from

_their jobs as volunteer fire fighters provided that the fire

committee consented.

After obtaining the approval of the Mayor and two of the

three members of the fire committee, Chief Mallott issued

written notifications of termination to the plaintiffs and to Bob

Holder on April 10, 1989. The reasons given for the

terminations were "misconduct and insubordination."

A25

Thereafter, the terminations and events leading up to them

were aired on radio, television and in the newspaper. At 7:00

a.m., April 11, 1989, plaintiff Busch was in a Kennett cafe

having breakfast and showed his termination letter to Jeff

Wheeler, manager of the local radio station. Wheeler had a talk

radio show and shortly after this reported what had happened

on his show. In the radio show, he did not report that he had

received this information direct from plaintiff Busch. The

matter was also presented on a nearby television news broadcast

in Paragould, Arkansas and numerous articles were written in

the Kennett Daily Dunklin Democrat. It was even reported in

a news story on KFVS-TV in Cape Girardeau.

Linda Redeffer, a reporter for the newspaper, spoke with

plaintiff Busch about the problem and he told her he was fired

for insubordination. Defendant Talley and Karsten told her

they were concerned about an audit of the Fire Department

Suggesting the possibility of an impropriety, and Talley indicated

that he had received threatening phone calls such as someone

indicating they would slash his tires.

Chief Mallott told her that the reason for the termination

was “insubordination to a standing city policy.”

Plaintiff Shands told her he was going to run Chief Mallott

Out to town, like he did the former city manager.

All of the plaintiffs in their testimony stated that they had no

animosity to Chief Mallott, and that they felt they got along with

him quite weil before their termination. Some witnesses

testified that the relationship between Chief Mallott and the fire

fighters was good. Others testified that it was hostile

throughout the three months and 10 days he was chief before

the terminations.

Irrespective of plaintiff Shands’ testimony that he had no

animosity to the chief, he admitted that he had stated he would _

spend $10,000.00 to get even and get Chief Mallott fired.

The entire affair created a considerable amount of furor in

Kennett. The City Council, either at the request of plaintiffs or

on its own, convened a town hall type of meeting on April 18,

1989 for the purpose of allowing plaintiffs and any one else to

express an opinion about the layoffs.

A26

All of the plaintiffs and Bob Holder attended that meeting

together with their counsel, Jim R. Bruce.

Bob Holder read a prepared statement wherein he objected

to his termination and that of the plaintiffs. All of the members

of the council were present as was Chief Mallott and the Mayor.

As the main spokesman, Holder testified that he felt he and the

plaintiffs had the opportunity at this meeting to tell their story.

There was a substantial crowd of townspeople at the meeting,

and it was covered by radio, television and press. The Mayor

announced that anyone who wanted to talk could do so, and

there would be no time limits. Attorney Bruce and the plaintiffs

were allowed to question anyone who made a statement and

they did.

Either shortly before or after this town meeting, plaintiffs

and Holder felt that they should disseminate their point of view

and they bought a newspaper ad in the Daily Dunklin Democrat

setting out their position. At some point during these

proceedings, Holder told the newspaper reporter, Redeffer, that

he felt Chief Mallott was on an ego trip. Chief Mallott was also

interviewed on television, and there presented his point of view.

Thereafter, request was made to reinstate the plaintiffs and

Bob Holder, and this was considered at a regular council

meeting on May 4, 1989. This evolved into a meeting similar to

the one on April 18, 1989, except that it was a partially closed

session. Only the councilmen were present as was Chief Mallott

and all of the plaintiffs, Holder and counsel Bruce. Again, the

parties talked before the council and attorney Bruce was allowed

to ask questions of anyone who talked and everyone apparently

was able to have input as to their feelings concerning the

terminations and potential reinstatements. At a later meeting

on May 16th, in closed session, the council elected not to

reinstate the plaintiffs and Holder.

No one complained at the April 18th or the May 4th meeting

that they were not allowed to talk or ask questions, nor did

anyone complain about the methodology of conducting both

meetings.

The case was submitted to the jury on two theories. The first

was that the defendants violated plaintiffs’ first amendment

‘ener

A27

rights by discharging them because they exercised their rights of

freedom of speech, association and petition. The second theory

was a breach of plaintiffs’ fourteenth amendment rights wherein

a public employee is discharged and the employer makes false

and stigmatizing charges against the employee in connection

with the discharge. Under these circumstances, the employee is

entitled to have a "name clearing hearing" in order to afford him

due process. The jury found for the plaintiffs and against the

defendants on both theories of recovery and awarded actual and

punitive damages.

With respect to the fourteenth amendment claim, the Court

instructed the jury as follows:

Your verdict must be for the plaintiffs on their

Fourteenth Amendment due process claim if you

believe:

FIRST, that plaintiffs were discharged from the

employment with the City of Kennett:

SECOND, that city _ officials, including

defendants Talley, Karsten or Mallott, made

statements which in the eyes of the public

Suggested, implied or created the false

impression that plaintiffs had taken money,

manipulated figures on fire reports, slashed tires,

made threatening telephone calls or received

payment from the city for services when none

had been performed;

THIRD, that such statements were made in

connection with _ plaintiffs’ discharge from

employment with the City of Kennett:

FOURTH, that plaintiffs requested a hearing to

clear their names:

FIFTH, that defendants City of Kennett, and

defendants Karsten, Cole, Vardell and Mallott

A28

failed to provide plaintiffs a public hearing and

a meaningful opportunity to confront the

evidence against them and to clear their names;

SIXTH, plaintiffs suffered damages as a result of

the denial.

The Court also instructed the jury that due process is

required when a public employee is discharged and the employer

publicly makes a false and stigmatizing charges against the

employee in connection with the discharge. The Court told the

jury further that the term "stigmatizing" means "that which

seriously damages one’s standing and associations in the

community or which substantially forecloses other opportunity

of employment."

There was extensive media coverage of the incidents

surrounding the layoffs. Certain conclusionary comments by

members of the media derogatory to the plaintiffs were asserted

by plaintiffs to come directly from defendants. Defendants, on

the other hand, claimed such comments were not made by them,

but were statements by the reporters and journalists themselves.

There is further substantial difference of opinion as to

whether or not statements or charges made seriously damaged

any of the plaintiffs’ standing or associations in the community

or substantially foreclosed other opportunity for employment.

This is a voluntary fire department and there was little or no

evidence to show that what was done prevented any of the

plaintiffs from having other opportunity for employment.

Plaintiff Busch lives five miles north of Kennett and has been in

the area for 25 to 30 years. He is in the insurance and real

estate business and does some home construction work. There

was no testimony to suggest that any of his businesses had

suffered as a result of the incidents in question.

Plaintiff Shands worked for Arkansas-Missouri Power and

Light Company for 32 years as a foreman, and has retired from

that job and now has a local electric business. There is nothing

to show that his current business has suffered as a result of the

incident. Plaintiff Don Key has been a Kennett resident for 40

A29

years. He has owned and operated Don’s Supply Shop for 28

years. Again, there is nothing in the evidence to show that his

business has suffered because of the termination.

The Court finds therefore that it could determine as a matter

of law that there is no substantial evidence upon which the jury

could have determined that the plaintiffs have been stigmatized

by the events that happened. There is no evidence to show that

they suffered economic damage or lost any Opportunity for

employment.

Nonetheless, more importantly, even if the Court were to

determine that plaintiffs were entitled to due process hearings

because of their discharge, as a matter of law the due process

was, in fact, afforded all plaintiffs.

The Court’s verdict director instruction told the jury that one

of the elements that they must find in favor of the plaintiffs in

order to return a verdict for plaintiffs on their fourteenth

amendment claim was:

Defendants City of Kennett and defendants

Karsten, Cole, Vardell and Mallott failed to

provide plaintiffs a public hearing and a

meaningful opportunity to confront the evidence

against them and to clear their names.

Generally, the parties do not dispute the proposition that if a

person’s name, reputation, honor or integrity is at stake because

of what a governmental entity may be doing to that person,

notice and an opportunity to be heard are essential. Due

process would accord an opportunity to refute any charges

made. The purpose of such due process which is notice and

hearing is to provide the person an Opportunity to clear his

name. Board of Regnets v. Roth, 408 U.S. 564, 573, 33 L.Ed. 2d

548, 92 S.Ct. 2701 (1972). The parties disagree that the

defendants afforded plaintiffs a public hearing and a meaningful

Opportunity to confront the evidence against them and to clear

their names.

Plaintiffs suggest that they were entitled to notice and a

meaningful opportunity to respond to the charges and then for

‘ii

A30

the issue to be decided by an impartial decision-maker. In

support of this proposition, the plaintiffs first cite Cleveland

Board of Education v. Loudermill, 470 U.S. 532, 84 L.Ed.2d 494,

105 S.Ct. 1487 (1985). This case is not precisely on point as it

determines what type of due process is required in a pre-

termination situation. Nonetheless, there are some comments

made in Cleveland which are pertinent in connection with any

kind of due process availability. In Cleveland, the court suggests

that there be notice and opportunity for hearing appropriate to

the nature of the case. Jd. at 542. "The essential requirements

of due process and all that respondents seek or the Court of

Appeals requires are notice and an opportunity to respond." /d.

at 546.

Plaintiffs also cite as support for their position Brady v.

Gebbie, 859 F.2d 1543 (9th Cir. 1988). The Brady case did, in

fact, address the fundamental need for due process when a

liberty interest is involved. When a person has been deprived

of a liberty interest without due process, the hearing required

must provide the aggrieved party with an opportunity to clear

his name. Brady v. Gebbie, at 1554.

Where a property interest is involved, something additional

is ordinarily required such as an impartial decision-maker. The

present case does not involve a property interest. Robinson v.

City of Montgomery City, 809 F.2d 1355, 1356 (8th Cir. 1987) aff.

651 F. Supp. 493 (E.D.Mo. 1986); Armer v. City of Salem, 861

F.2d 514 (8th Cir. 1988).

Thus, considering all ofthe favorable evidence to plaintiffs

in this case, could the jury have found that the plaintiffs were

deprived of an opportunity to clear their names? I believe not.

One week after discharge, the plaintiffs were entitled to be

present at a public meeting at which the Mayor, City Council

and the City Attorney were present. Plaintiffs’ counsel was also

present as was the press and numerous interested local citizens.

The Mayor allowed anyone to comment that desired to do so,

and he placed no time restriction on the comments.

The Mayor first allowed Bob Holder to make a prepared

statement on behalf of himself and the plaintiffs. This statement

was elaborate and carefully worked out, and set out all of the

A31

concerns of the plaintiffs and Holder. It attempted to refute

any impropriety or wrongdoing or inappropriate conduct on the

part of the plaintiffs.

Other plaintiffs made oral presentations, and various

members of the council and interested citizens made

presentations. After each presentation the Mayor allowed

attorney Bruce to question that person concerning his or her

statement. All in all, there was a.complete disclosure by all

parties as to what had happened, albeit some of the statements

may not have been satisfactory to the parties involved. The

Court concludes, therefore, that this meeting in and of itself

satisfied due process requirements where all alleged liberty

interest had been lost as had been asserted here. The parties

had ample time to prepare, everyone was present, and the

parties and counsel had a full opportunity to participate.

That hearing was bolstered by still another hearing on May

4, 1989 at a closed session of the council. Although the session

was Closed, plaintiffs and their attorney were present, and again,

all of the interested parties had an opportunity to express their

views about the events in question and plaintiffs and their

counsel again, were allowed to participate fully, and allowed to

make whatever statements they desired. Plaintiffs, therefore,

had every opportunity to clear their names which is all that is

required to meet their due process rights. Judgment

notwithstanding the verdict shall therefore be entered in favor

of defendants on the fourteenth amendment claim.

The Court’s verdict director instruction on plaintiffs’ first

amendment claim was as follows:

Your verdict must be for the plaintiffs on their

first amendment freedom of speech and petition

claim if you believe:

1. The plaintiffs exercised their first amendment

right of freedom of speech and petition by

speaking on matters relating to the fire

department;

2. The exercise of their first amendment rights

Oe

A32

of freedom of speech was a substantial or

motivating factor in the decision of the

defendants to discharge plaintiffs from

employment or their refusal to reinstate

plaintiffs following their discharge;

3. The private statements to Councilman Cole

did not unduly interfere with the plaintiffs’

ability to perform their duties in the fire

department or cause any actual or potential

disruption to the fire department in_ the

performance of its functions;

4. Plaintiffs suffered damages as a result of the

denial of their first amendment rights.

5. That defendants would not have dismissed or

refused to reinstate plaintiffs except for the fact

that they had exercised their first amendment

rights.

Although the substantial testimony in the case is that the

plaintiffs and Bob Holder were terminated because they

opposed some of the policies of the Chief and attempted to

manipulate the City Council to postpone the Chief's decision to

employ David Horton, it is conceivable that the jury could have

inferred that the plaintiffs were terminated because of their

exercise of speaking rights. The jury conceivably could have

determined that plaintiffs were terminated because of various

statements made about their safety concerns, the purported

inadequacy of the surplus equipment the Chief was buying and

the lack of attention to employing an electrician-type fire

fighter. The Court, however, cannot find evidence even when

considered in the light most favorable to plaintiffs that "the

private statements to Councilman Cole did not unduly interfere

with the plaintiffs’ ability to perform their duties in the fire

department or cause any actual or potential disruptions to the

fire department in the performances of its functions."

A33

The meeting with Cole undermined the entire Operation of

the fire department. It indicated a complete lack of regard for

rank on behalf of the plaintiffs, and Suggested that they would

proceed at any cost to have their way. They did just that and

attempted to manipulate Chief Mallott’s bosses, that is. the City

Councii, by making arrangements with friends of the fire fighters

on the council to delay proposals advanced by Chief Mallott.

Chief Mallott was the Chief. Although he may not have had

a proper rapport with his men, and some of his methods might

not have been acceptable to all, he was still the Chief. His

authority should not be subject to question unless he was

violating the law or not following a policy of the city Or was

himself acting in such a devious way that would disrupt the

activities of the department and make the department

unmanageable. Was the Chief to run the fire department as

governed by the council and the fire committee, or were the

plaintiffs and some of the men running the department?

The verdict director instruction was tendéred by the plaintiffs

and generally submits the law properly in cases of this nature.

A public employee certainly has the right of free speech at all

times, however, it is not without some restraints. Pickering v.

Board of Education of Township High School, 391 U.S. 563, 20

L.Ed.2d 811, 88 S.Ct. 1731 (1968). There is simply no evidence

in plaintiffs’ favor to suggest anything else that the purpose of

the mecting with Cole and others was to undermine and

challenge the Chief's authority.

In addition, the evidence shows as a matter of law that

defendants had the right to terminate plaintiffs. The limited

First Amendment interest of plaintiffs did not require that

defendants tolerate action which defendants reasonably believed

would disrupt the office of the Fire Chief. undermine his

authority, and destroy close working relationships between the

Chief and his men. Connick vy. Myers, 461 U.S. 138, 75 L.Ed.2d

708, 103 S.Ct. 1684 (1983). Judgment notwithstanding the

verdict, therefore, should also be entered in favor of the

defendants on plaintiffs’ first amendment claim.

Although it is unnecessary in view of the foregoing holdings

to consider the question of damages, the Court notes that there

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was simply no evidence to support a submission of a punitive

claim against defendants.

JUDGMENT IS THEREFORE ENTERED in favor of all

defendants and against plaintiffs on all their claims,

notwithstanding the verdict reached by the jury.

IT IS FURTHER ORDERED that all other motions in this

case not heretofore ruled on are determined to be moot in light

of this judgment.

Dated this 19th day of March, 1992.