Petition for Writ of Certiorari — Gillum v. City of Kerrville

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93-795 Peer

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No. NOY } § ig°* f

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In The cH. OLR

al

Supreme Court of the United States

October Term, 1993

David Gillun,

Petitioner,

Vv.

The City of Kerrville, Texas, Glenn D.

Brown, in his official capacity as City

Manager and his individual capacity, Louis

A. Barrow, Jr., in his official capacity

as Police Chief, and in his individual

capacity, Kirk McCarley, in his official

capacity as Personnel Director and in his

individual capacity,

Respondents.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Randall B. Richards

COUNSEL FOR PETITIONER

194 South Main Street,

Suite 300

Post Office Box 1319

Boerne, Texas 78006

210/249-2070

i

QUESTIONS PRESENTED

Whether the Pickering/Connick

balancing test for determining the

protected status of speech of public

employees should be reformulated to

provide clearer guidelines to the

lower courts for deciding claims of

retaliatory discharge for the exer-

cise of the right of free speech?

Whether the analysis of the Court of

Appeals, used to determine if the

speech identified by the Petitioner

as implicating a matter of public

concern for purposes of First Amend-

ment protection, conflicts with the

analytical framework established by

this Court's decisions in Connick

V. Meyers, 461 U.S. 138, and Rankin

Vv. erson, 483 U.S. 378?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED......cccccccs cocecces i

TABLE OF AUTHORITIES... ccccecccccsees iii

OPINIONS BELOW... ccccccccccccccsessecces 2

JURISDICT AG so ct sewed eaaaw eee eeeseeeeen

CONSTITUTIONAL PROVISION INVOLVED....... 3

STATEMENT OF THE CASE... cceccesccecevcs 3

THE RULINGS BELOW. .... ccc rcccccccveces 28

REASONS FOR GRANTING THE WRIT.......... xp

REFORMULATION OF THE

BALANCING TEST...... re ee ae

MISAPPLICATION OF

CONNICK AND RANKIN... 2. eeeeeeeees 56

CONCLUSION... ... cc cere rcrccccccesesseses 62

APPENDIX......cee- Terrrrrr es See ee 63

iii

TABLE OF AUTHORITIES

CASES Page

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 Se ee 61

Brawner v. City of Richardson,

855 F.2d 187 (5th Cir.

Oo) ee eeeeeeeeeees 29,30,33

Brocknell v. Norton,

732 F.2d 664, (8th Cir.

UN SOON NS 65 5.65%-66-0's6 ve coccccecace 41

Buzek v. County of Saunders,

972 F.2d 992 (8th Cir.

DUE MUSCENEGEHSCEGb ce kececceccceees 39

Connick v. Meyers,

461 U.S. 138 | ee 32,33

DCE Eee Sie dees weeseeeeees 35,37,42,43

ecccecces Settee eee eee een no 0 44,47,52,56

ecccccece Sete eee eee ween eee 57,58,59,62

Conway v. Smith,

853 F.2d 789 (10th Cir.

DCS 6 B06 a 66 aes a 40

Dennison v. County of Frederick,

Va., 921 F.2d 50, (4th Cir.

1990) fe © @ @ @&@ @ it ee ee ee ee ee ee i 28

Garrity v. New Jersey,

385 U.S. 493 (1967)................. 46

Givan v. Western Line Consol.

School Dist., 439 U.S. 410

(1979) beee6a6-e666 OPO bOe66 06 6s oe -- 29,58

iv

Hall v. Ford,

856 F.2d 255 (D.C. Cir.

BOGS) cc cescccececsseceessesecssesaeecs 40

Little v. Liquid Air Corp.,

952 F.2d 841 (5th Cir.

SN a baa Fass ce rn seo a woneedeeess 61

Mt. Healthy City School Dist.

v. Doyle, 429 U.S. 274

gf SE SO PTT Tee eTT ere 38

Maciariello v. Sumner,

973 F.2d 295 (4th Cir.

Ns ou aa wew eee ee bebn en ee dav 28,39

Marshall v. Allen,

984 F.2d 787 (7th Cir.

IR Oat eee PE ee re aaa eke ke 39

NAACP v. Claiborne Hardware Co.,

458 U.S. 886 (1982) .cccccccccccccccs pe

Pickering v. Board of Education,

391 U.S. 563 (1968) ..cccccvece oda,pat, 4a

ecoceessceseeseeecese 000032043 ,34, 93,08

Rankin v. McPherson,

483 U.S. 378 (1987) wccccccccccececs 31,36

*eeteee#see ecccccccesesseseceess ab, 44,43

ee eeeescesceessecoos ocvccc cc 0 44,56,57,62

Solomon v. Royal Oak Township,

842 F.2d 862 (6th Cir.

1988) .cccccccses COeeeeeecneeseceenee 40

Terrell v. University of Texas

System Police, 792 F.2d 1390

eS er eee 57,58

Vv

Thompson v. City of Starkville,

Miss., 901 F.2d 456 (Sth Cir.

eee civecewrsceenedinnets 33,58

Tinker v. Des Moines Ind.

Community School Dist.,

393 U.8. BOS. C1GGH) ocaccddcccccae oO

Wulf v. City of Wichita,

883 F.2d 842 (10th Cir.

1989)..... FE ee Le ea: 40,58

UNITED STATES CONSTITUTION

ViSGE RONG i oo 6és des ka eacisleel 3

STATUTES

26 8.0.8. @ S90. 208. cskkio ee 3

OTHER AUTHORITIES

Allred, "From Connick to

Cc Pie

64 Ind. L. J. 43 RE a eae 41

Cynthia K.Y. Lee, Freedom of

. h in the Public Work-

ce: e

j nce j nt,

76 Cal. L. Rev. 1109 (1988)......... 41

Paul Ferris Soloman, The Public

Employee's Right of Free

Speech: A Proposal for

a Fresh Start, 55 U. Cinn.

L. Rev. 449 (1986)............... 41,45

vi

4 - j ment,

97 Harvard L. Rev. 1611,

Viele | errr rrr TT rire 41

Post, Between Governance

and Management: The History

and Theory of the Public

Forum, 34 U.C.L.A. L. Rev.

SIES GROUT 6 énceGsseumaeeseteneawena 50

No.

In The

Supreme Court of the United States

October Term, 1993

David Gillun,

Petitioner,

Vv.

The City of Kerrville, Texas, Glenn D.

Brown, in his official capacity as City

Manager and his individual capacity, Louis

A. Barrow, Jr., in his official capacity

as Police Chief, and in his individual

capacity, Kirk McCarley, in his official

capacity as Personnel Director and in his

individual capacity,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, David Gillun, hereby

petitions for a writ of certiorari to

review the judgment and Opinion of the

2

United States Court of Appeals for the

Fifth Circuit in this case.'

OPINIONS BELOW

The opinion of the Court of Appeals,

whose judgment is herein sought to be re=—

viewed, is dated September 16, 1993, is

reported at 3 F.3 117 and is reprinted in

the Appendix, pp. 1-24. The case number

is 93-8006 and the date of decision was

September 16, 1993. The prior Order and

Judgment of the United States District

Court for the Western District of Texas,

San Antonio Division, were entered on

November 30, 1992. The case number is

SA-91-CA-0090. The Order and Judgment of

the District Court are reprinted in the

Appendix, pp. 26-74.

‘All parties to this proceeding appear

in the caption of the case.

3

JURISDICTION

The judgment of the Court of Appeals

(App., p. 25) was entered on September

16, 1993. This Court has jurisdiction

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment of the United

States Constitution states:

Congress shall make no law res-

pecting an establishment of

religion, or prohibiting the

free exercise thereof; or a-

bridging the freedom of speech,

or of the press; or the right

of the people peaceably to as-

semble, and to petition the

Government for a redress of

grievances.

STATEMENT OF THE CASE

The Petitioner is David Gillum

("Gillum"), formerly employed by the City

of Kerrville, Texas ("Kerrville") and a

"good cop" in the words of the present

Chief of Police of the Kerrville Police

Department ("KPD"). R. at 228. On

+

August 1, 1990, Gillum reported alle-

gations to his supervisor and the Inter-

nal Affairs Division ("IAD") of the KPD

regarding criminal misconduct, i.e.,

"smoking dope," against Louis A. Barrow

Jr. ("Barrow"), the Chief of Police at

that time. The events which were then

set in motion by Gillum's report of such

allegations, and his subsequent state-

ments, i.e. "speech" that the investi-

gation of the allegations conducted by

the IAD was irregular and biased, culmin-

ated in his constructive discharge from

employment. Gillum had never been disci-

plined before. Gillum contends he was

discharged in retaliation for the

exercise of his right of free speech.

Gillum Reported Allegations of Misconduct

Initially, Gillum approached Sgt.

Joe Lanning ("Lanning"), the Chief of the

5

IAD, on August 1, 1990, for guidance on

how to handle information he had received

from a reliable confidential informant

that a woman with a criminal record (the

"Wom-an") had been overheard bragging

about "smoking dope" with Barrow. R. at

690, 986. Gillum, a patrolman in the KPD

for three years, had no prior experience

in such matters. Barrow, employed by the

KPD since January of 1990, had previously

been the subject of rumors at the KPD

concerning his possible prior involvement

with drugs during his employment with the

City of Beaumont, Texas. Agreed Pretrial

Order, Undisputed Facts 5 (dd). Gillum

had earlier in the day reported the alle-

gations to his immediate supervisor, Lt.

Rosie McCray ("McCray") , pursuant to his

understanding of the provisions of a 21-

Page document entitled Procedural Order

6

No. 90-06 (the "Order") which created the

IAD and provided for the investigation of

complaints of misconduct. R. at 681.

Although Barrow devised and implemented

the Order after his employment with the

KPD, it does not specifically provide a

procedure for investigating the Chief of

Police. R. at 1233, 1257. Further, even

if the Order can be construed to provide

a means for investigating a complaint

against the Chief of Police, the Chief of

Police, i.e., Barrow, would in accordance

with the Order, be responsible for the

disposition of his own investigation.

Id.

Prior Reports of Misconduct

Uninvestigated

Gillum was apprehensive about

reporting the allegations to Lanning

because he knew that Lanning was

7

appointed to his position by Barrow who

was a personal friend. R. at 680. Gillum

also knew that officers Ken Crosthwait

and Michael Kuntz of the KPD had

previously reported misconduct against

Barrow which were never investigated by

Lanning. R. at 955. Lanning, in his

deposition testimony, denied having

received such reports concerning Barrow,

in direct contrast to his testimony in

Gillum's first appeals hearing before

Kirk McCarley ("McCarley"), the Personnel

Director of Kerrville, and Barrow, on

September 12, 1990, (the "McCarley

Hearing"). R. at 986-989, 742. Barrow

had, in fact, been reprimanded prior to

August 2, 1990, by Glenn D. Brown

("Brown"), the Kerrville City Manager,

and McCarley, for "...spending too much

time at the Dry Dock Oyster Bar...con-

8

cerning...perceptions that he was

creating in the eyes of the public by

perhaps being out in public and drinking

too much, too frequently; this sort of

thing." R. at 287. Barrow was subse-

quently, on October 31, 1990, again re-

primanded by Brown who stated:

As you know, I told David

Gillum and the news media last

week that I supported and stood

behind you. However, unless

some things change, it will be

difficult for me to continue

making public statements of

support. R. at 340-341.

Brown later told Barrow, "That he

{Barrow] needed to find a job someplace

else" because "...his personal life-

style..." was not "...compatible with

what I expected of a police officer." R.

at 246. Barrow left employment with the

KPD in March of 1992. Id.

Gillum's Investigation Was Authorized

9

Despite his apprehension, Gillum

reported the allegations to Lanning who

authorized Gillum to interview the Woman

without requiring a written complaint

pursuant to the provisions of the Order

concerning internal investigations.

Lanning assured Gillum the investigation

would be kept confidential. R. at 681.

However, he Subsequently contacted

McCarley and Administrative Lt. Chuck

Dickerson ("Dickerson"), his superior,

who also agreed to allow Gillum to

proceed with an investigation without

requiring a written complaint. R. at 284,

285, 993, 994, McCarley has acknowledged

he knew Lanning was not following the

Order but, "...concurred with that ac-

tion." Id, Furthermore, while Lanning's

deposition testimony is at variance with

his sworn affidavit filed with the Motion

10

for Summary Judgment (the "Kerrville

Motion") filed by Brown and McCarley, and

while it is unclear whether he immed-

iately contacted Barrow to report the

allegations, it is clear Lanning, con-

trary to his pledge of confidentiality,

informed Barrow of the allegations on

August 2, 1990, and thereafter Lanning

changed his "position" on Gillum's par-

ticipation in the investigation. R. at

292-94, 1046-48.

Lanning Acknowledges Gillum Will

Have a "Bitter Taste....Thinking

Half an Investigation was Done"

After Gillum interviewed the Woman

and reported the information he obtained

to Lanning on August 2, 1990, Lanning

authorized a second interview of an indi-

vidual named by the Woman as a possible

witness. R. at 681, 995, 1046-48. How-

1I

ever, Lanning shortly summoned Gillum

back to the police station and stated he

needed to change his "position around on

this deal." R. at 686. Gillun, fearing

retaliation for having reported allega-

tions of misconduct against his Chief,

and to protect himself, tape recorded

this meeting with Lanning and a subse-

quent meeting on August 2, 1990, with

Barrow, Lanning, McCray and McCarley. R.

at 682. Certain meetings with McCray,

Barrow and McCarley on August 6, 1990,

were also tape recorded by Gillum. The

transcripts of such tape recordings are

included in the record of this case and

have been stipulated by the parties to be

true and correct. R. at 686, 715. These

transcripts have been reprinted in the

Appendix, pp. 75-157. According to the

transcript of the taped conversation with

12

Lanning after Gillum was called back to

the police station, Lanning stated that

any further investigation must be

conducted through the IAD because the

"...allegation is serious about the

executive of this department." R. at

687. After some discussion, Lanning

indicated he knew Gillum was suspicious

the investigation would be covered up.

Id. Lanning stated, "...I know that

there is going to be a bitter taste in

your mouth about this, thinking that

there has been half an investigation

done..." R. at 693. Gillum expressed

his concern that the allegations would

not be investigated, that Lanning was

biased, and that, "....somebody is going

to benefit." R. at 694. Lanning angrily

replied, "I don't give a shit right now

whether you trust me or not..." Gillum

13

Said, "(F)rankly, I don't, I don't, not

on this, I don't..." Lanning repliea:

"(I]) don't know how to make you

trust me. All I know now is

that I'm going to have to doa

full investigation, a written

documented investigation, be-

cause I have to cover my ass

when you tel] someone else out

here that I went in there and

that's all a crock of shit...

that you went in there and you

told me and they cover it up,

because I perceive that being

the next step, I perceive that

as being the next rumor..." R.

at 694-95.

Lanning then ordered Gilium not to

contact any more witnesses and Gillum

indicated he understood and agreed that

he was to no longer take part in the

investigation. R. at 695 (emphasis

added). Lanning finally states he will

have to take a Statement from Gillum, who

replies "no," that "we [sic] will get an

attorney." Lanning later tells Gillum he

is not entitled to an attorney. App. p.

14

98. It is significant to note the Order

speaks in terms of a written "complaint"

and Gillum made clear he was not making a

"complaint" only reporting the allega-

tions of wrongdoing of which he neither

knew to be true or false. R. 708, 710,

688. It is also significant for First

Amendment analysis that Gillum had al-

ready questioned the investigation

process prior to the request for a

written statement. App., pp. 79, 82, 92,

93 and 94.

Gillum Obeyed Orders

Gillum never at any time-indicated

he would not obey Lanning's order to

cease his participation in the investi-

gation and never took any further action

with regard to the investigation; the

only actions taken by Gillum in the

investigation were those authorized by

15

Lanning and approved by McCarley and

Dickerson. R. at 695, 698, 701, 702, 969,

998, 1001. The Respondents have stated

in earlier briefs that Gillum, "...be-

lieved that he had his own prerogative to

decide when, where, and how to investi-

gate those allegations about misconduct"

and that Gillum insisted, "...on a right

to personally investigate the Chief of

Police.” Brief of Appellees, City of

errvi enn D. and Ki

McCauley, pp. 17. No factual support has

ever been cited for these allegations

because they are untrue. Lanning has

admitted he was not aware of any further

investigation by Gillum of the allega-

tions of misconduct against Barrow after

August 2, 1990. R. at 998. Lanning

states only that Gillum refused to give a

written statement, which was refused by

16

Gillum until he sought the advice of

counsel.

Gillum Protested Barrow's Presence

and. Participation in the Investigation

Later on August 2, 1990, Gillum was

ordered into a meeting in Barrow's office

with McCarley, Lanning, McCray and

Barrow, the target of the investigation,

who demanded to know what was "going on"

even though Lanning had already informed

him of the allegations. In fact, Barrow,

in the later McCarley Hearing, admitted

he knew the Woman, had drunk beer with

her at his apartment complex and had

twice discussed her recent arrest with

her, although he denied "smoking dope."

R. at 751. Gillum indicated he did not

intend to further investigate the

allegations because he had been told by

Lanning, "...what I can do and what I

17

can't...and...I am going to abide by it."

R. at 701. Gillum did express his

opinions that Barrow's presence and

apparent role in the investigation were

improper and that the allegations should

be properly investigated by an outside

agency. R. at 701, 708. Although he

twice stated he had given Lanning all the

information he had obtained, Barrow and

McCarley demanded "cooperation." R. at

712. Barrow also wanted to know “how

long" it had taken Gillum to obtain his

employment with the KPD, knowing Gillum

had long endeavored to gain such employ-

ment. R. at 710. Barrow inquired if

Gillum understood where his actions left

him with regard to his employment with

the KPD. R. at 710. Gillum responded he

thought Barrow would either fire or

18

suspend him and he did not want either

alternative. R. at 712.

Barrow's Ultimatum:

Cooperate in Investigation to

"Clear My Name" or "Give Me That Badge"

McCarley, in the meeting in Barrow's

office then made the statement that,

"(Wjhat kind of investigation is required

on things, that, you know, have no, you

know, have no truth." - at 712. Gillum

questioned how McCarley could make such a

statement because the allegations had not

been fully investigated. R. at 712.

McCarley urged Gillum to refrain from

"biting the hand that feeds you." R. at

713. Gillum, just before the end of the

meeting, twice emphatically stated, "I'm

not quitting." R. at 713. McCarley

continued to insist there was no truth to

the allegations and that Gillum should

19

"cooperate" or let it “drop right now and

we never hear a thing about it again, any

rumors, allegations, anything having to

do with him or anybody else in this de-

partment." R. at 713. Finally, Barrow,

visibly angry, demanded in a raised voice

that Gillum choose between cooperating in

an investigation to "clear my name" or

"give me that badge." R. at 714.

Gillum, believing he had been ordered to

perform illegal acts, i.e., engage in

official misconduct and possibly others,

and that he could become involved ina

conspiracy to "cover-up" Barrow's

wrongdoing, placed his badge on the table

and stated, "I won't compromise this

badge." R. at 680, 714. Upon leaving

Barrow's office, Gillum stated to Larry

Rhodes, the KPD dispatcher on duty, "Just

so you'll know, I didn't quit." R. at

20

1018. Gillum contends he was

constructively discharged when faced with

the choice given him by Barrow. The

Court of Appeals agrees whether he quit

or lost his job on this record is a

question of fact. App. p. 10.

Gi id N uit

Gillum reported to duty on his next

shift on August 6, 1990, and discovered

his name had been marked off the duty

list. R. at 682. McCray indicated she

did not know his status with the KPD,

even though she was present at the August

2, 1990, meeting. When Gillum went to

see Barrow, he was informed he was no

longer employed by the KPD. R. at 682.

McCarley later stated Gillum's relation-

ship with Barrow was irreparably damaged

as a result of Gillum's actions and there

was "no way" Gillum would be treated by

21

Barrow as he had been previously. R. at

718. McCarley also told Gillum he was no

longer employed by the KPD. R. at 719.

Gillum did not clean out his locker on

August 2, 1990, and it is undisputed that

Gillum never submitted a formal

resignation.

McCarley Admits Gillum Could

Have Thought Something was

Going to be "Swept Under the Rua"

After the existence of the tape

recordings was revealed, McCarley testi-

fied it was "inappropriate" for Barrow to

be advised of the allegations before an

investigation had taken place and that

Gillum could have formed a perception

that something was going to be "swept

under the rug." R. at 281, 291. McCarley

also indicated it was "unusual" for

Barrow, the target of the investigation,

22

to be asking the investigating officer

what information he had about the inves-

tigation. R. at 286-88. McCarley fur-

ther made the statement in his deposition

that Gillum had "specifically stated in

that meeting, 'I have information but I

feel uncomfortable releasing it.'" R. at

289. To the contrary, Gillum twice

plainly stated that Lanning knew every-

thing about the investigation Gillum did.

R. at 712. Brown, in his deposition

testimony, agreed it was inappropriate

for Barrow to demand Gillum reveal infor-

mation concerning his investigation into

the allegations of misconduct and to

demand cooperation to "clear my name."

R. at 260. Likewise, Dickerson testified

that, in his opinion, it was improper

police procedure to have a target of an

investigation present at the beginning of

23

the investigation, with witnesses being

asked to divulge information in front of

the suspect. R. at 227. Despite the

foregoing agreement by Brown and McCarley

with Gillum's position that Barrow's

presence was improper, they have insisted

the focus of this case should be on

Gillum's "conduct" in the investigation,

i.e. refusing tc provide a written state-

ment and not on his speech that was cri-

tical of the manner in which the investi-

gation was being conducted and Barrow's

apparent role in the investigation.

The Brown Hearing

After Gillum's discharge, a second

appeals hearing was held before Brown on

October 4, 1990. Brown agreed he basi-

cally reaffirmed McCarley's and Barrow's

earlier decision in the Hearing that

Gillum had voluntarily resigned, although

24

he admitted he knew at the time of the

hearing that Gillum was concerned about a

"coverup" of wrongdoing by Barrow. R. at

268-71. After the hearing Brown offered

Gillum reinstatement, without back pay,

which Gillum refused, but admitted if

Gillum did not quit, it would not be fair

for back pay to be denied. R. at 267.

Brown also admitted he understood that

McCarley's statement to Gillum that

Barrow would, "never treat you [Gillum}

the same again," might have affected

Gillum's decision whereby he declined

reinstatement. R. at 263. Gillum then

brought this suit asserting both federal

and pendent state law claims.

Prior to his discharge, Gillum had

never been disciplined by the KPD. R. at

282-83. Brown has testified he was not

aware of any misconduct for which Gillum

25

should have been fired. R. at 271.

McCarley also stated that his and Brown's

decision after the McCarley Hearing was

based on their belief Gillum had resigned

and not on any finding he was insubordi-

nate. R. at 297-98.

The District Court noted in its

Order that Gillum was convicted of the

felony offense of aggravated assault on a

peace officer with a deadly weapon. This

incident occurred on January 1, 1992,

nearly a year and a half after the events

of August 2, 1990, and it is unclear why

this incident [after being raised by the

Respondents] was considered relevant by

the District Court in determining whether

they violated Gillum's constitutional

rights. It is a disputed fact whether

severe depression from Gillum's discharge

from employment and his unsuccessful

26

attempts to acquire other employment were

a precipitating factor in causing his

actions during this incident. Medical

experts were designated in the Agreed

Pretrial Order and extensive discovery on

this issue has been completed by the

parties. Agreed Pretrial Order 5

(cccecc).

Contrary to most cases where the

parties must rely on their best recol-

lections of what was said, the parties in

this litigation have agreed the tran-

scripts of the meetings that were tape

recorded on August 2 and 6, 1990 are

accurate and Gillum has identified by

underlining that speech he contends is

protected by the First Amendment of the

United States Constitution.

The Respondents have characterized

the foregoing as an internal employment

27

dispute involving only a personal matter

that does not rise to the level of a

matter of public concern. On appeal they

focus solely on Gillum's refusal to pro-

vide a written statement when requested

by Lanning, ignoring the totality of the

speech in which the refusal occurred and

the predominance of Gillum's criticisms

of the investigation over the issue of

the statement. They do not contend

Gillum was terminated for refusing to

provide a statement. They say he simply

quit. Gillum contends his speech that

was critical of irregularities he

perceived in this investigation of

possible wrongdoing and the bias of the

assigned investigator does involve

matters that would be of concern to the

citizens of Kerrville, who undeniably

would be interested in whether serious

28

allegations of misconduct against their

Chief of Police are properly investi-

gated. His conduct in refusing to parti-

cipate in what he further perceived to be

a possible cover-up of such wrongdoing is

also expressive of his beliefs and

motives as evidenced in his speech on

these issues. See Gillum's Affidavit,

App. p. 158.

TEE RULINGS BELOW

The District Court, having reviewed

the evidence offered by the parties,

granted summary judgment against Gillun.

The District Court was of the opinion

Gillum alleged no facts which constituted

"speech," but only a general course of

conduct, citing Dennison v. County of

Frederick, Va., 921 F.2d 50 (4th Cir.

1990), a case subsequently distinguished

by the Fourth Circuit in Maciariello v.

29

Sumner, 973 F.2d 295 (4th Cir. 1992).

The District Court also felt Brawner v.

City o ichardson, 855 F.2d 187 (5th

Cir. 1988), which Gillum cited in support

of his position that his speech was

protected, was inapplicable, because

Gillum did not go to an outside agency.

Of course, Gillum should not forfeit his

right to speak by choosing an internal

forum to criticize the irregularity and

partiality of the investigation. See

Givan v. Western Line Consol. School

District, 439 U.S. 410, 415-416 (1979)

(First Amendment protection applies when

a public employee arranges to communicate

privately with his employer rather than

to express his views publicly). It is

noteworthy that Officer Brawner also

refused to answer questions during an

internal investigation without consulting

30

with his lawyer. Brawner v. City of

Richardson, at 190. Thus, in an anal-

ogous fact situation, the Fifth Circuit

reached a contradictory conclusion in

Brawner to the finding made here.

The Court of Appeals was not in this

case inclined to say Gillum did not speak

or engage in expressive conduct within

the contemplation of the First Amendment

but decided the focus of Gillum's speech

was to dispute his role in the internal

investigation and that in effect he was

speaking only as an employee embroiled in

a personal employment dispute. In other

words, there was no matter of "public

concern" attributable to Gillum's speech.

The Court of Appeals further failed to

address the conclusory statement made by

the District Court that even assuming

Gillum's conduct did amount to speech,

aa

",...it was not protected under the

balancing test..." App. p. 52. As

discussed below, Gillum offered evidence

to show his speech had no disruptive

effect on the KPD. Finally, the Court of

Appeals never addressed the issue of

qualified immunity, presumably because it

found no constitutional claim was

asserted by Gillum. Its disposition of

the conspiracy claim of Gillum was

apparently decided on the same basis.

REASONS FOR GRANTING THE WRIT

It is well established that a public

employee may not be discharged for

exercising his or her right to free

speech under the First Amendment. Rankin

v. McPherson, 483 U.S. 378 (1987).

However, the appropriate test is to

balance the interests of the [employee],

as a citizen, in commenting upon matters

32

of public concern and the interest of the

State, as an employer, in promoting the

efficiency of the public services it

performs through its employees."

Pickering v. Board of Education, 391 U.S.

563, 568 (1968). Accordingly, there are

two special and important reasons why

this petition for a writ of certiorari

should be granted. First, the determina-

tions by the District Court and the Court

of Appeals of whether the speech of

Gillum implicated a "matter of public

concern" exemplifies the unequal treat-

ment that results when the lower courts

lack clear guidelines in making the

threshold inquiry into protected speech

required by this Court in Connick v.

Meyers, 461 U.S. 138 (1983). (If employee

expression cannot be fairly characterized

as constituting speech as a matter of

aa

public concern, it is unnecessary to

scrutinize the reasons for his discharge.

461 U.S. at 146.) Offering no clearer

guidelines than "when employee expression

cannot be fairly considered as relating

to any matter of political, social, or

other concern to the community..."

Connick, 461 U.S. at 146, this Court has

permitted irreconcilable conflicts to

develop in the lower courts in cases

applying this confusing standard to

similar fact situations, including

between different panels in the Fifth

Circuit. Cf. Thompson v. City of

Starkville, Miss., 901 F.2d 456 (5th Cir.

1990); Brawner v. City of Richardson,

supra. In essence, the current

formulation of the Pickering/Connick

balancing test with respect to the

“public concern" inquiry, does not

34

promote certainty to any reasonable

degree, for public employers in eval-

uating the possible adverse consequences

of employment decisions related to speech

of their employees, and as a result of

the wide discretion afforded the lower

courts, denies consistent treatment to

public employees who claim retaliatory

discharge for the exercise of their right

of free speech. Both of these factors

should compel a re-examination of the

policy interests involved in the thres-

hold inquiry and to determine whether the

balancing test should be reformulated to

provide a more predictable and uniform

approach to resolving the competing

interests of the employer, with the

fundamental right of free speech secured

to all citizens, albeit they be a public

employee, by the First Amendment to the

35

United States Constitution. Secondly, if

this Court should decide the policy

reasons for reformulating the balancing

test advanced in this petition are not

sufficiently strong to justify a change

in the law, then it is clear the District

Court and the Court of Appeals have not

properly applied the principles of

Connick and Rankin to the facts in this

case. There can be no doubt that words

i.e. speech were spoken here. They are

verbatim before this Court. The issue is

whether the speech of Gillum involved

matters purely of personal concern,

matters of public concern, or a mixture

of both. Speech involving the latter two

categories has been and should be recog-

nized as protected. See Connick v.

Meyers, 461 U.S. at 149 (The speech of

Meyers was found to contain components of

36

both protected and non-protected speech).

The lower courts in this case should have

then applied the remainder of the

balancing test for purposes of First

Amendment analysis. Because in this

instance, they found there was no

"speech" or the speech of Gillum did not

implicate a matter of public concern,

they never reached that point in their

analysis. This Court has before held it

has a constitutional obligation to

examine independently the whole record to

ensure the rulings below do "not consti-

tute a forbidden intrusion on the field

of free expression" Rankin v. McPherson,

483 U.S. 378, 107 S. Ct. 2891, 2897 n. 9.

This will require a review of the forn,

content and context in which this speech

occurred, consistent with Connick and

Rankin, to determine whether the Court of

37

Appeals has decided a question of law in

a way that conflicts with these

decisions.

I.

REFORMULATION OF THE BALANCING TEST

In order to establish a constitu-

tional violation a public employee must

now first prove that his speech involved

a matter of public concern. Rankin v.

McPherson, 483 U.S. at 386; Connick v.

Meyers, 461 U.S.at 147. The court must

then determine if the employee's interest

in commenting upon matters of public con-

cern is greater than his employer's in-

terest in promoting the efficiency of the

public services it performs. Pickering

v. Board of Education, 391 U.S. at 568.

The state has a burden of coming forth

with evidence on this point. Rankin v.

McPherson, 483 U.S. at 388. Finally, the

38

employee must show that his speech

motivated the employer's decision to

terminate him from employment. Mt.

Healthy City School Dist. v. Doyle, 429

U.S. 274 (1977). While this final

element of the cause of action involves a

question of fact, the first two issues

are now decided by the courts as matters

of law. Rankin, 483 U.S. at 386.

What is here involved, is the

threshold inquiry made a part of the for-

going analysis. Gillum would argue the

lower courts in this case erred in their

conclusion the speech he has identified

does not involve a matter of public

concern, and that the error is due to the

lack of any clear guidelines or standards

for making that determination. He would

suggest that other courts faced with the

task of determining whether speech

39

implicates a matter of public concern in

similar fact situations have reached

widely divergent and oftentimes irrecon-

cilable results. See, Marshall v. Allen,

984 F.2d 787 (7th Cir. 1993) (Adding to

the analysis that "The Connick test re-

quires us to look at the point of the

speech in question: was it the employee's

point to bring wrongdoing to light?"...at

795); Maciariello v. Sumner, 973 F. 2d at

299 (Police officers engaged in some

conduct protected by the First Amendment

in discussing with one another their

suspicions of wrongdoing by superior) ;

Buzek v. County of Saunders, 972 F.2d 992

(8th Cir. 1992) (Subsequent speech was

protected even though police officer had

been earlier admonished such speech pre~

sented "professional ethics" question) ;

Wulf v. City of Wichita, 883 F.2d 842

40

(10th Cir. 1989) (A police officer's

letter subsequent to a transfer, concern-

ing his complaints about the police

chief, while arguably linked to a per-

sonal dispute with the Chief, contained

allegations of public concern); Conway

Vv. Smith, 853 F.2d 789, 796 (10th Cir.

1988) (per curiam) ("Speech which

discloses any evidence of corruption,

impropriety, or other malfeasance on the

part of city officials, in terms of

content, clearly concerns matters of

public import"); Solomon v. Royal Oak

Township, 842 F.2d 862 (6th Cir. 1988);

Hall v. Ford, 856 F.2d 255, 260 (D.C.

Cir. 1988) (neither does a topic

otherwise of public concern lose its

importance merely because it arises in an

employee dispute) (emphasis in original) ;

Brocknell v. Norton, 732 F.2d 664, 668

41

(8th Cir. 1986). Various commentators

have likewise argued that a public

employee's right to free speech is ill-

defined and inadequately protected,

because of the inconsistent and confusing

application of the public concern

requirement. See generally, Allred "From

Connick to Confusion: The Struggle to

Define Speech in Matters of Public

Concern," 64 Ind. L. J. 43 (1988);

Cynthia K. Y. Lee, Freedom of Speech in

the Public Workplace: A Comment on the

Public Concern Requirement, 76 Cal. L.

Rev. 1109 (1988); Paul Ferris Solomon,

The Public Employee's Right of Free

Speech: A Proposal for a Fresh Start, 55

U. Cinn. L. Rev. 449 (1986); Developments

- Public Employment, 97 Harvard L. Rev.

1611, 1757 (1984). Furthermore, this

Court has been able to muster only bare

42

majorities in decisions affecting this

issue. The strongly worded dissent in

Connick, joined by Justice Stevens,

criticized the narrower conception of

what subjects are of public concern

adopted by the majority and concluded the

majority had weighed the context of the

speech at issue twice and removed from

the threshold inquiry the policy consid-

erations for deferring to the employer

when the speech is found disruptive as

articulated in Pickering, 391 U.S. 567.

Justice Scalia, writing in dissent, in

Rankin noted all attempts fail to advance

the definition of public concern beyond

the circular statement that "speech on

matters of public concern is that speech

which lies at the heart of the First

Amendment's protection." Rankin v.

McPherson, 483 U.S. at 395. Accordingly,

43

while Connick and Rankin may have been

attempts to define the types of speech

that may be considered "matters of public

concern," as the term was used in the

Pickering balancing test, Gillum would

argue there clearly has been permitted

far too great a latitude for misapplica-

tion of the critical factor in this

analysis. Rather than the disruptive

effect of speech on the operation of

public offices, that was the primary

focus of Pickering, sanctioning of

"public concern" as a separate threshold

inquiry has skewed the analysis of

protected speech beyond the original

policy considerations for the balancing

test. This Court should, therefore,

accept this case as an opportunity to

expound on the efforts made in Connick

and Rankin, and consistent with the

a aa

44

policy reasons advanced here, reformulate

the balancing test in a way that recog-

nizes greater respect for First Amendment

values and gives greater emphasis to the

public's interest in having access to

legitimate criticism of the operation of

their governmental institutions in order

that they might be better informed of the

consequences of their investment in

government. "Re-inventing"™ government,

or exposing malfeasance and abuse of

office, or improving efficiency in the

delivery of government services, are much

more attainable goals if a reformulated

test can more adequately prevent a

chilling effect on the exercise of free

speech by public employees. A greater

emphasis for the public interest in the

analysis of protected speech would

likewise recognize critical speech may

45

actually advance efficient government

operations and that overly broad restri-

ctions on such speech may result ina

less that optimum return on the public's

investment. The Public Employee's Right

of Free Speech: A Proposal for a Fresh

Start, 55 U. Cinn. L. Rev 449, 472

(1986).

A threshold inquiry that would

better serve the competing interests of

employer and employee would first

determine whether the speech "clearly

impairs" the government's ability to

function. Impairment would be found when

the speech would make it impossible for a

government institution to carry out its

duties or accomplish its legitimate

objectives. For example, disclosure of

military secrets would clearly impair the

ability of the Defense Department to

46

function and perform its assigned duties

in government. Speech of this nature

should not be protected. The government

in these cases should, however, bear the

burden of proving the speech clearly

impairs its ability to function. This

would be appropriate because the

government in effect is seeking to

restrict and punish free speech. See

Tinker v. Des Moines Indep. Community

School Dist. 393 U.S. 503, 509 (1969).

That this case involves a police

department should not on its face condone

a more lenient application of this test.

This Court has held before that police

are not relegated to a watered-down

version of constitutional rights. Garrity

v. New Jersey, 385 U.S. 493, 500 (1967).

The policy considerations behind a "clear

impairment" inquiry would justify

47

permitting police to comment on matters

of public importance when their comments

do not prevent the ability of their

agency to function. The integrity of a

police department should be a paramount

concern and speech exposing threats to

that integrity is a legitimate competing

interest and should be protected

An additional inquiry should then be

made whether the speech involves matters

purely personal to the employee. What

the employee has to gain personally from

his employment by his speech would be

reflected by his primary motivation. It

is significant that this Court in Connick

explicitly limited its holding such that

"when a public employee speaks not as a

citizen upon matters of public concern,

but instead as an employee upon matters

only of personal interest, absent the

48

most unusual circumstances, a federal

court is not the appropriate forum in

which to review the wisdom of a personnel

decision..." 461 U.S. at 147, (emphasis

added). This category of speech should

likewise not be protected. This factor

would eliminate most employment disputes

from judicial review. The employee

should bear the burden when this issue is

raised to show his speech, in whole or in

part, involves more than a purely

personal dispute with his employer. If

the court decides it does not, it should

then defer to the judgment of the public

emplcoyer in assessing the correctness of

a personnel decision. If the speech

involves more than a personal matter, the

court should review the decision. For

example, job performance evaluations

would ordinarily not provide a subject

—————‘(i‘(i;é

49

for protected speech as related solely to

the employee. If, however, the employer

was discriminatory in performing job

performance evaluations for employees

other than the employee in question, then

an opinion that such job performance

evaluations were discriminatory would be

protected. Under this reformulation of

the balancing test, all other speech

would be constitutionally protected,

subject only to the Pickering requirement

that the interest of the employee and the

public in free expression outweighs the

interest of the governmental employer in

managing and preventing actual disruption

in the workplace. This categorization of

speech would recognize that outside the

nonprotected categories of "clear impair-

ment" or speech "purely personal," the

interest of the government in controlling

50

its employee's speech should not be

Significantly greater than its interest

in limiting a similar contribution by any

member of the general public. Post,

Between Governance and Management: The

History and Theory of the Public Forun,

34 U.C.L.A. L. Rev. 1713, 1796 (1987).

The nature and content of speech would be

more important than a simple distinction

of whether the employee has spoken as an

employee or as a citizen, thus recogni-

zing that all words spoken while in a

public office are within the status of -

employee. A confusing factor in the

present balancing test, in its use of the

labels of employee and citizen, could

then be eliminated. This reformulation

would also recognize that even protected

speech may be disruptive of the work-

place, as would occur in any rigorous

|

debate of public issues, but even though

disruptive, may predominate only when the

evidence tips the scales in favor of free

expression as opposed to the interests of

the employer. This reformulation would

provide clearer guidelines than the

present "public concern” requirement,

reduce the potentiality of substitution

of individual judicial attitudes for

interpretation of this fundamental right,

give greater substance to prior judicial

pronouncements that an employee does not

lose his constitutional rights when he

goes to work for the government, and

recognize that the public has a legiti-

mate and substantial interest in access

to information from public employees for

public discourse on important issues

involving the operation and integrity of

government institutions. Undoubtedly, no

52

one would be in a better position to

comment_on the operation of public

offices than the persons most directly

affected - the employees of that office.

Pickering, 391 U.S. at 572. The public's

right to know is a discrete interest

favoring employee expression. Connick,

461 U.S. at 1684.

Here, Gillum's speech with respect

to his beliefs the investigation was

irregular and biased would not clearly

impair the functioning of the KPD to

perform its law enforcement function, or

even prevent the completion of the

investigation in question. The Respon-

dents have contended an investigation was

completed and a report given to Brown.

The speech identified by Gillum was

furthermore not related to any dispute

about Gillum's employment, other than

53

spoken as an employee, but specifically

concerned the operation and integrity of

the KPD, and more specifically, not only

its conduct of the internal investigation

in question, but his belief that prior

allegations of misconduct had not been

investigated. Pickering suggests that

any speech by a public employee concern-

ing the "preferable manner of operating"

a government institution is constitution-

ally protected. Pickering, 391 U.S. at

571.

The analysis of the lower courts of

this speech should have proceeded to the

Pickering balancing test for further

scrutiny. Of course, the record shows

that except for the conclusory statements

made in the affidavit of Barrow in sup-

port of his motion for summary judgment,

there was no evidence offered in support

54

of the motions for summary judgment of

the Respondents that Gillum's speech in

fact disrupted the operations of the KPD.

There is likewise no evidence of on-going

bickering, personality conflicts or

policy disputes between Gillum and his

superiors that were disruptive of the

KPD, nor have the Respondents attempted

to show Gillum's limited comments con-

cerning morale or paperwork requirements

in the tape transcripts was disruptive of

the KPD. Indeed, the evidence is that

Gillum's speech was not disruptive.

Barrow agrees an investigation of allega-

tions of misconduct would be more impor-

tant than the efficiency of the KPD. R.

at 972 Dickerson, now the Chief, knew of

no disruption caused by the investiga-

tion of such allegations. R. at 226.

This speech could not have effected the

55

proper functioning of the KPD since the

statements were made for the reason the

KPD was not functioning properly in

conducting the investigation.

Without a reformulation of the

balancing test, the unfairness in the

result of this case may be repeated again

in cases involving the millions of public

employees who serve the citizens of this

country. Speech on public issues has

traditionally occupied the "highest rung

of the hierarchy of First Amendment

values." NAACP v. Claiborne Hardware

Co., 458 U.S. 886, 913 (1982). However,

if a confusing and unclear test remains

to determine protected speech, the lower

courts will continue to conflict in

making the threshold inquiry now requir-

ed, public employees will be treated

unequally and there will be an inevitable

56

chilling effect on public employees who

might otherwise be critical of the

operation of governmental institutions.

If such employees choose not to speak,

the public will as a consequence be

deprived of valuable political and social

information. This Court should act now

to address this important issue.

II.

MISAPPLICATION OF CONNICK AND RANKIN

The Court of Appeals has misapplied

Connick and Rankin in two ways. First,

it has expressly chosen to ignore two

principles that are fundamental elements

of the test devised by Connick. In

stating that for its analysis it would

look at the “hat worn by the employee

when speaking rather that the importance

of the issue," (App. p.11) the Court of

Appeals ignores that all speech of the

57

public employee at the workplace will

have occurred under his "hat" as an

employee. Status has, in effect, been

given more emphasis by the Court of

Appeals than content. That was not the

holding in Connick, nor in Rankin. Of

course, the confusion caused by the use

of the labels "employee" and "citizen" in

Pickering and Connick, as discussed

earlier, may have lead the Court of

Appeals to err in the proper application

of the balancing test.

The Court of Appeals, in citing

Te Vv iv exas e

Police, 792 F.2d 1360 (5th Cir. 1986) to

Support its determination that Gillum did

not speak on a matter of public concern,

has also decided Connick, 103 S.Ct. at

1691 n. 8 suggested that speech on a

matter of public concern must not be tied

58

to a personal employment dispute.

Terrell, at 1363. Gillum would argue

this misreads the holding in Givan v.

Western Line Consol. School District, 439

U.S. 410, and Connick. Much of critical

speech can have mixed issues of both

public and private concern and that alone

is not grounds for such speech to lose

protected status. See Thompson v. City

of Starkville, Miss., 901 F.2d at 464;

Wulf v. City of Wichita, 883 F.2d at 860.

Only a portion of the speech need address

a matter of public concern. Connick, 461

U.S. at 149. The Court of Appeals

further stated in its opinion "We are

chary of an analytical path that takes

judges so uncomfortably close to content

based inquiries." App. p.11. It is

expressly the holding of Connick that

"content" of the speech at issue must be

59

reviewed. That is especially important

here, because the speech offered by

Gillum as implicating a matter of public

concern, by its very content does not

impact his job performance, but is

instead his opinion of the irregularity

of the investigation and the bias of the

assigned investigator. He had nothing to

gain personally from such statements,

only the risk of possible retaliation by

his superiors. His primary motivation

was to draw attention to matters beyond

his own self-interest. See Gillum

Affidavit, App. p.158. The lower court's

focus on solely his refusal to provide a

written statement when requested after

his suspicions were aroused by the change

in "position" ignores the context and

content of his speech as related to the

predominant issue of whether the

60

investigation was irregular and biased.

The latter issues were the "point" of his

speech. Surely, if as everyone in this

case has agreed, the possible misconduct

of Barrow is rightfully a matter of pu-

blic concern, then whether an investiga-

tion of such allegations of misconduct

was properly and impartially conducted,

should likewise be a matter public

concern.

Gillum argues that he presented

sufficient facts to raise a factual

dispute as to whether the matters he

spoke out on were of public concern.

Factual disputes would also exist as to

whether he was terminated for his speech.

In accordance with the federal law

governing the disposition of summary

judgment motions, greater deference

should have been afforded Gillum by the

61

lower courts in deciding whether his

speech involved matters of public con-

cern. The evidence produced by Gillum

should have been viewed drawing all rea-

sonable factual inferences in his favor.

Little v. Liquid Air Corp., 952 F.2d 841

(Sth Cir. 1992). See the Order. App.

pp. 40-43. At this stage of trial pro-

ceedings, the role of the judge was not

to weigh the evidence and determine the

truth of the allegations in question but

rather to determine whether there is a

genuine issue for trial. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249

(1986).

The Court of Appeals has misapplied

the teachings of Connick and Rankin.

This departure from the analytical frame-

work established in such decisions has in

effect more narrowly construed "speech"

62

for purposes of First Amendment analysis

than has been before sanctioned by this

Court.

CONCLUSION

The petition for a writ of

certiorari should be granted, the

decision of the United States Court of

Appeals for the Fifth Circuit should be

reversed, and this case remanded for

further proceedings.

Respectfully submitted,

Deu ZO

Randall B. Richards

194 South Main Street,

Suite 300

Post Office Box 1319

Boerne, Texas 78006

210/249-2070

COUNSEL FOR PETITIONER

63

In The

Supreme Court of the United states

October Term, 1993

David Gillun,

Petitio.er,

Vv.

The City of Kerrville, Texas, Glenn D.

Brown, in his official capacity as City

Manager and his individual Capacity, Louis

A. Barrow, Jr., in his official capacity

as Police Chief, and in his individual

capacity, Kirk McCarley, in his official

capacity as Personnel Director and in his

individual capacity,

Respondents.

On Petition for a writ of Certiorari to

she United States Court of Appeals

for the Fifth Circuit

APPENDIX TO THE PETITION

FOR A WRIT OF CERTIORARI

Randall B. Richards

COUNSEL FOR PETITIONER

194 South Main Street,

Suite 300

Post Office Box 1319

Boerne, Texas 78006

210/249-2070

TABLE OF CONTENTS

Page

PER CURIAM OPINION OF THE

UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT...... 1

JUDGMENT OF THE UNITED STATES

COURT OF APPEALS

FOR THE FIFTH CIRCUIT........-cc0. 25

ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS,

SAN ANTONIO DIVISION.............. 26

JUDGMENT OF THE UNITED STATES

DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS,

SAN ANTONIO DIVISION.............. 73

TRANSCRIPTS OF TAPE RECORDED

MEETINGS, AUGUST 2 and 6, 1990....75

AFFIDAVIT OF DAVID GILLUM IN SUPPORT

OF PLAINTIFF'S RESPONSE TO

MOTION FOR SUMMARY JUDGMENT...... 158

1

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-8006

David Gillun,

Plaintiff-Appellant,

versus

THE CITY OF KERRVILLE, ET AL.,

Defendants-Appellees.

Appeal from the United States District

Court for the Western District of Texas

Before GOLDBERG, HIGGINBOTHAM, and DAVIS,

Circuit Judges.

PER CURIAM:

David Gillum filed this 42 U.S.C. §

1983 suit against Kerrville, Texas, a

city that once employed him as a police-

man, and three of its officials, city

Manager Glenn D. Brown, Police Chief

Louis A. Barrow, Jr., and Personnel Dir-

ector Kirk McCarley, claiming that he was

2

fired in violation of his federal

constitutional rights to free speech and

due process, and in violation of state

constitutional and common law rights and

duties. Holding that these claims did

not have merit, the district court

granted summary judgment. We affirm.

I

In early August 1990, David Gillum

was a policeman with the Kerrville Police

Department. A "reliable" confidential

informant told Gillum that Police Chief

Louis Barrow had “smoked dope" with

Cheryl Schilling, a woman with a criminal

record. Gillum asked Joe Lanning, Chief

of the Internal Affairs Division, how to

proceed. Then, in an attempt to follow

requirements for reporting and conducting

internal investigations of police offi-

cers, as reflected in the department's

o>)

Procedural Order No. 90-06, Gillum re-

ported the information to Rosie McCray,

his commanding officer. Procedural Order

No. 90-06 provided that an internal af-

fairs officer must investigate all alle-

gations of police misconduct; it did not

specifically treat investigations of the

police chief.

Lanning authorized Gillum to inter-

view Schilling. Lanning also told Chuck

Dickerson, his superior officer, and Kirk

McCarley, the city personnel director,

about the allegations, and that Gillum

would interview Schilling. Gillum re-

ported that Schilling denied smoking dope

with Barrow, but admitted drinking a beer

and discussing her recent arrest with

him. Lanning then authorized Gillum to

interview Debbie Vasquez, another witness

identified by Schilling.

4

Lanning then told Barrow about the

situation. The record does not reflect

Barrow's response, but Lanning then told

Gillum that he would no longer have a

role in the investigation, and that he

should submit a written statement about

the matter. At this point, Gillum says,

he began to suspect that his superiors

wanted to stonewall the investigation, a

point confirmed in his mind when he was

summoned to a meeting with Barrow,

MCCarley, Lanning and McCray.

During this meeting, Gillum was told

that Internal Affairs would conduct a

formal investigation. Gillum however,

was worried that the Chief had been told

about the Internal Affairs investigation

before the filing of a formal complaint.

He commented that he did not think that

Internal Affairs could conduct an impar-

2

tial inquest, and speculated that Barrow

and the others would either suspend him

until he could acquiesce in the formal

investigation or fire him altogether.

Gillum stated that he did not want to

quit his job, but wanted to return to

normal police work. The meeting ended

when Gillum placed his badge and gun on

the desk and left the roon, stating, "I

won't compromise this badge." Gillum

asserts that he did so because he

Suspected that he was being ordered to

participate in a coverup.

As he left the police station,

Gillum told Larry Rhodes, the police

dispatcher, that he did not quit. Gillum

did not clean his locker but reported to

work on his next scheduled day. His name

was not on the duty roster. When he

inquired, McCarley and Barrow told Gillum

6

that he had quit and no longer worked for

the Kerrville Police Department. Gillum

requested a hearing on his status with

the police force in a letter to McCray.

Gillum was given a hearing before McCray

and Barrow under rules for fired

employees.

Gillum was not reinstated and ap-

pealed to Glenn Brown, the city manager.

Brown held a hearing. Gillum requested

that the hearing be open, but it was

closed. Gillum also requested that

Lanning attend the hearing, but “Lanning

did not. However, Brown offered rein-

statement with the Kerrville Police De-

partment without compensation for time

off the duty roster. Not satisfied,

Gillum filed this suit. Kerrville

offered Gillum a name clearing hearing,

but he did not attend.

7

In the district court, Gillum argued

that he was fired for expressing his opi-

nion about the investigation of Barrow,

and for refusing to participate in a con-

spiracy to stonewall the investigation.

Gillum maintained that his firing vio-

lated his right to free speech under the

First Amendment to the U.S. Constitution,

and under Article I, Section 8, of the

Texas Constitution. Gillum also argued

that he was denied a meaningful oppor-

tunity to clear his name, in violation of

his right to due process under the Fifth

and Fourteenth Amendments to the U.S.

Constitution.

Gillum also filed claims for defa-

mation and intentional infliction of emo-

tional distress and conspiracy to deny

his civil rights in violation of 42

U.S.C. § 1983. Gillum demanded compen-

8

satory damages for lost wages and earning

capacity, past and future mental anguish,

severe emotional distress, future medical

expenses, loss of reputation, punitive

damages for conscious disregard of his

rights, attorneys' fees under 42 U.S.C.

§1988, and declaratory and injunctive re-

lief. The district court granted summary

judgment to defendants. Gillum appealed.

Il

We cannot affirm a summary judgment

unless "there is no genuine issue as to

any material fact that the moving party

is entitled to a judgment as a matter of

law." Fed. R. Civ. P. 56(c). We review

the evidence, as well as inferences that

may be drawn from the evidence, in the

light most favorable to the party that

opposed the motion. Little v. Liquid Air

Corp., 952 F.2d 841, 847 (5th Cir. 1992).

9

IIt

Gillum argues that a reasonable jury

could find a violation of his right to

free speech under the First Amendment

because he was fired for speaking to his

superior officers about police corrup-

tion. Of course, the state cannot fire

an employee for exercising the right to

speak on matters of public concern.

Connick v. Meyers, 461 U.S. 138, 147

(1983); Pickering v. Board of Educ., 391

U.S. 563, 574 (1968).

The district court held that though

allegations of misconduct by Barrow were

a matter of public concern, Gillum did

not prove that he spoke or engaged in

expressive conduct within the conten-

plation of the First Amendment. It also

held that even if Gillum engaged in pro-

tected speech or expressive conduct, he

10

could not invoke the First Amendment as

his speech or expressive conduct imposed

an impermissible burden on the proper

administration of the workplace.

Whether Gillum quit the police force

or lost his job for insubordination was

on this record a question of fact. We

are not persuaded, however, that Gillum's

right to free speech as an employee pro-

tected him from being fired for the ex-

pressive conduct he has pointed to.

In Terrell v. University of Texas

Sys. Police, 792 F.2d 1360 (5th Cir.

1986), cert. denied, 479 U.S. 1064

(1987), we did not focus on the inherent

"importance" of the subject matter of the

speech, but on the extent to which the

terminated employee spoke as a citizen or

employee. In Terrell, as in this case,

the employee did not speak as a citizen,

Rtas

La

but as an employee embroiled ina

personal employment dispute. Id. at

1363. This focus on the hat worn by the

employee when speaking rather than upon

the "importance" of the issue reflects

the reality that at some level of gener-

ality almost all speech of state employ-

ees is of public concern. Relatedly, we

are chary of an analytical path that

takes judges so uncomfortably close to

content based inquires.

Whether Barrow broke the law is of

public concern, but that was not Gillum's

focus. Instead, Gillum disputed his role

in the internal investigation. To be

sure, corruption in an internal affairs

department is a matter of public concern.

Gillum's focus was, however, on this

issue only insofar as it impacted his

wish to continue his investigation.

12

Gillum was not told to withhold any in-

formation he had. To the contrary, he

was told to put it in writing, and

subsist from his investigation. That

Gillum did not think that adequate adds

nothing. Had he submitted his statement

and later found that it was ignored, he

might have complained or "gone public."

Firing Gillum for those acts would have

presented a quite different case.

IV

Gillum argues that he was denied a

name clearing hearing in violation of his

due process right to work in a chosen

profession. Gillum must prove (1) that

he was discharged; (2) that defamatory

charges were made against him in connec-

tion with the discharge; (3) that the

charges were made public; (4) that the

charges were false; (5) that he requested

aa

a hearing in which to clear his name; (6)

that the request was denied; and (7) that

no meaningful public hearing was con-

ducted before the discharge. Rosenstein

v. City of Dallas, 876 F.2d 392 (Sth Cir.

1989), aff'd on relevant grounds, 902

F.2d 91 (en banc) (per curiam), cert.

denied, 498 U.S. 855 (1990).

ate

Gillum argues that Brown, McCarley,

and Barrow published defamatory state-

ments in the Kerrvi ai imes in

connection with his discharge. The

alleged defamatory statements appeared on

September 30, 1990, during the adminis-

trative appeals process. The statements

concerned Gillum's dispute with the

Kerrville Police Department and appeared

in a news account of the administrative

proceedings.

14

The threshold question is whether

there is a sufficient nexus between the

alleged defamatory statements and the

discharge, as required by Siegert v.

Gilley, 111 S.Ct. 1789 (1991). It is

apparent that these statements were

sufficiently tied to Gillum's termin-

ation. The statements were about his

termination and were made while the ad-

ministrative process was in play. It

does not follow, however, that Gillum has

a claim that he was deprived of any con-

stitutionally secured rights.

oss -Z=

The difficulty with Gillum's claim

is that his initial "firing" was subject

to an administrative appeals process. The

result of that process was tender of re-

instatement, which Gillum declined. It

is true that the process took from mid-

15

August until the end of September and the

city declined to pay Gillum for the in-

terim period. We cannot conclude, however,

that the defendants impaired Gillum's

employment opportunities sufficiently to

deprive him of constitutionally secured

liberty interests. Gillum was given an

opportunity to be heard and prevailed.

Gillum cannot create a constitutional

claim by declining to return to work.

The district court granted summary judg-

ment because Gillum declined reinstate-

ment. We agree.

V

Gillum argues that his discharge

violated Article I, Section 8, of the

Texas Constitution, which provides in

relevant part that "[(e]very person shall

be at liberty to speak, write or publish

his opinions on any subject, being res-

16

ponsible for the abuse of that privi-

lege." Tex. Const. of 1876, art. I, § 8

(1955). The district court held that no

cause of action for damages could be as-

sessed for violation of Article I, Sec-

tion 8, and that finding no violation of

the First Amendment precludes finding a

violation of Article I, Section 8.

Texas courts have not recognized a

violation of Article I, Section 8, as an

actionable constitutional tort. One

Texas Court of Appeals has stated that

"Texas has a strong bill of rights, but

...-no Texas statute or case...provides a

citizen the kind of redress afforded by

42 U.S.C. § 1983 or by Bivens v. Six

Unknown Named Agents of the Federal

Bureau of Narcotics. There is no state

constitutional tort." Bagg v. University

of Tex. Medical Branch, 726 S.W.2d 582,

x

4

17

584 n.1 (Tex. App.--Houston [14th Dist. }

1987. writ ref'd n.r.e.) (citations omit-

ted); see also City of Houston v. Leach,

819 S.W.2d 185 (Tex. App.--Houston (14th

Dist.] 1991, no writ). But see Jones v.

Memorial Hosp. Sys., 746 S.W.2d 891 (Tex.

App.--Houston [1st Dist.] 1988, no writ)

(implicitly recognizing actionable con-

stitutional tort in reversing summary

judgment in case involving Article

Section 8).

Gillum reads Bagg as holding that

though he cannot recover damages under

Article I, Section 8, against a govern-

mental unit of the state, employees

remain personally liable for wrongdoing.

As we read it, Bagg holds that government

employees cannot be liable for doing

their jok Brown, McCArley, and Barrow

were about their official duties in con-

18

sidering how to proceed in the internal

investigation, and how to deal with a

police officer who resisted their deter-

mination.

VI

Gillum charges that Brown, McCarley,

and Barrow made false and defamatory

statements published in the Kerrville

Daily Times that injured his reputation.

We have held that "defamation of a police

officer by city officials in the course

of discharging that police officer is

protected under the city's governmental

immunity and, as an exercise of a govern-

mental function, is nct actionable either

against the city or the state officials

under state slander law." Rosenstein,

876 F.2d at 397 (citing City of Dallas v.

Moreau, 718 S.W.2d 776, 779-80 (Tex.

App.--Corpus Christi 1986, writ n.r.e.).

19

On this basis, the district court con-

cluded that both the city and its offi-

Cials are not liable for defamation as a

matter of law.

In Moreau, the court found immunity

not only for the city but also for its

officers who published information con-

cerning a policeman's dismissal from the

police force. Id. at 779. After holding

that "appellant city was immune from the

libel cause of action by appellee for

publishing a letter of discharge as a

matter of law," the court noted, "(t)his

reasoning also applies to the cause of

action (if such exists) for appellant's

employees' acting without proper motive

and without due care and diligence in the

performance of their official duties in

regard to the act of posting the termina-

tion letter on the bulletin board." Id.

Sen eee

20

at 779-80. We have located no Texas case

concerning comments to the press about a

discharge. The facts of this case re-

semble those in Moreau, and we are not

persuaded that Texas courts would con-

clude that these responses to press in-

quiries are ultra vires.

VII

Gillum alleges that Brown, McCarley,

and Barrow intentionally caused him emo-

tional distress. To prevail in this

claim, Gillum has to demonstrate that (1)

the defendant acted intentionally and

recklessly; (2) the conduct was "extreme

and outrageous;" (3) the actions of the

defendant caused the plaintiff emotional

distress; and (4) the emotional distress

Se ee ee

suffered by the plaintiff was severe.

Dean v. Ford Motor Credit Co., 885 F.2d

300, 306 (5th Cir. 1989); Bushell v.

21

Dean, 781 S.W.2d 652, 657 (Tex. App.--

Austin 1989), rev'd in part on other

grounags, 803 S.W.2d 711 (Tex. 1991);

d u Vv. W , 699

S.W.2d 939, 942 (Tex. App.--Beaumont 1985

writ ref'd n.r.e.)

We have interpreted the term

"outrageous" to mean surpassing "all

possible bounds of decency," such that

it is “utterly intolerable in a Civilized

community." Dean, 885 F.2d at 306

(quoting Restatement (Second) of Torts §

46, Comment d). Given this framework,

the district court correctly granted

summary judgment, as Gillum failed to

demonstrate that any of the defendants

acted in an outrageous way. Their

statements provided either accurate

descriptions of the Gillum controversy,

or at worst hyperbolist ramblings.

22

Gillum has not demonstrated that his

superiors either surpassed the bounds of

decency or contravened the standards of a

civilized community.

The district court correctly

observed that Section 101.057 of the

Texas Civil Practices and Remedies Code

provides that any limited waiver of

sovereign immunity does not apply where

the claim arises out of an intentional

tort. Tex. Civ. Prac. & Rem. Code Ann. §

101.057 (West 1986). This provision

shields municipalities from suits arising

out of intentional torts committed by

governmental employees, Ci W V.

Hester, 805 S.W.2d 807, 810-12 (Tex.

App.--Waco 1990, writ denied), and should

be liberally construed to accomplish this

objective. Robinson v. Central Texas

MHMR Center, 780 S.W.2d 169,170 (Tex.

a3

1989).

VIII

Gillum advances a wrongful ter-

mination claim based on a common law

exception to the "at will" employment

doctrine. He argues that he had a good

faith belief that he would be required to

perform an illegal act of omission or

commission, acquiescence or participation

in an attempt to conceal Barrow's alleged

recreational drug use, and as such should

not have been terminated for his refusal

to follow formal investigative proce-

dures. The district court granted sun-

mary judgment on this clain, holding that

Gillum could not have held such a good

faith belief after he received an offer

to provide a written statement concerning

his investigation, an offer of reinstate-

ment, and an offer of a name clearing

24

hearing. We agree.

IX

Gillum attacks the dismissal of his

claim of civil conspiracy to violate his

constitutional rights to free speech and

due process. The district court denied

this claim because Gillum's constitu-

tional rights had not been violated, so

that no basis existed for assigning lia-

bility for conspiracy. As we have noted,

"it reMains necessary to prove an actual

deprivation of a constitutional right; a

conspiracy to deprive is insufficient."

Villanueva v. McInnis, 723 F. 2d 414, 418

(Sth Cir. 1984).

AFFIRMED.

25

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-8006

D.C. Docket No. SA-91-CV--90

David Gillun,

Plaintiff-Appellant,

versus

THE CITY OF KERRVILLE, ET AL.,

Defendants-Appellees.

Appeal from the United States District

Court for the Western District of Texas

Before GOLDBERG, HIGGINBOTHAM, and DAVIS,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the

record on appeal and was argued by

counsel.

ON CONSIDERATION WHEREOF, It is now

here ordered and adjudged by this Court

that the judgment of the District Court in

this cause is affirmed.

IT IS FURTHER ORDERED that plaintiff-

appellant pay to defendants-appellees the

costs on appeal to be taxed by the Clerk

of this Court.

September 16, 1993

26

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

DAVID GILLUM

Vv.

THE CITY OF KERRVILLE,

TEXAS, GLENN D. BROWN,

in his official capacity

as City Manager and in

his individual capacity,

LOUIS A. BARROW, JR.

in his official capacity

as Police Chief, and in

his individual capacity,

KIRK MCCARLEY, in his

official capacity

as Personnel Director,

and in his individual

capacity

CIVIL ACTION

NO.

SA-91-CA-0090

November 30,

1992

MAAAAAAAAAAMAAMAMAAMAAMN

ORDER

Came on to be considered a multitude

of dispositive motions filed in the above

styled and numbered cause. This civil

rights suit was originally filed on March

12, 1991. Defendant Louis A. Barrow

("Barrow") filed a Motion to Dismiss on

June 12, 1991, and a Supplemental Motion

——-

27

to Dismiss on July 12, 1991.' The

remaining Defendants -- The City of

Kerrville ("the City"), Glenn D. Brown

("Brown"), and Kirk McCarley ("McCarley")

-- filed a Motion for Summary Judgment on

April 10, 1992.2 Brown ana McCarley

filed a second Motion for Summary

Judgment Based Upon Qualified Immunity on

September 28, 1992.3 Barrow also filed

a motion for summary Judgment on

September 28, 1992. an Agreed Pretrial

‘Plaintiff responded to these motions

on June 27, 1991, and July 25, 1991, res-

pectively.

*Plaintiff responded to this motion on

April 27, 1992. The City, Brown and

McCarley replied to this Response on May

5, 1992.

‘Defendants filed this motion despite

having previously filed a Motion for Sun-

mary Judgment on April 10 1992.

‘Plaintiff responded to both of these

September 28th motions on October i

1992.

28

Order was received on October 14, 1992.

I. Background

On or about August 1, 1990, the

Plaintiff, David Gillum, began

investigating allegations of misconduct

against the Kerrville Chief of Police,

Louis A. Barrow. The Plaintiff asked the

Chief of the Internal Affairs Division

("Lanning") for guidance on how to handle

information he had received from a

reliable confidential informant that a

woman with a criminal record had been

overheard bragging about "smoking dope"

with Barrow. The Plaintiff states that

he first reported this to his commanding

officer ("McCray"), with the hope that

this would be in compliance with

Procedural Order No. 90-06 ("Order").

Barrow had promulgated this Order after

becoming Chief. It outlined the

29

procedural requirements for reporting and

conducting an internal investigation of

fellow officers. It did not address

investigations of the Chief. Lanning

authorized the plaintiff to interview

Cheryl Shilling ("Shilling"), the woman

who allegedly "smoked dope" with Barrow.

The Plaintiff reported that Shilling

denied "smoking dope" with Barrow, but

admitted knowing Barrow, having drunk a

beer with him, and having discussed her

recent arrest with hin. Shilling had a

criminal record for drug use and had

recently been arrested for delivery of

methamphetamines. Lanning notified his

Supervisor, Lt. Chuck Dickerson ("Dicker-

son"), and the personnel director, McCar-

ley, about the Plaintiff's investigation.

Lanning then told the Plaintiff that

he would no longer have a role in the

30

investigation, and that he should make a

written statement. Lanning had already

informed Barrow about the allegations

against him. The Plaintiff was shortly

thereafter summoned back to the police

station for a meeting in Barrow's office

with Barrow, McCarley, Lanning, and

McCray.

What occurred in this meeting on

August 2, 1990, is in dispute. Defend-

ants allege that Plaintiff quit by

placing his gun and badge on Barrow's

desk and walking out. Plaintiff alleges

that he stated three times that he did

not intend to quit. Plaintiff further

alleges that Barrow ordered Plaintiff to

cooperate in clearing his name or else he

would be fired. Plaintiff alleges that

when he next reported to work, McCarley

and Barrow informed him-that he had quit,

31

and he was no longer employed by the KPD.

It is undisputed, however, that Plaintiff

told dispatcher Larry Rhodes that he had

not quit, and Plaintiff did not Clean out

his locker August 2, 1990. It is also

undisputed that Plaintiff never submitted

a formal resignation.

Plaintiff then requested a hearing

in a letter to McCray dated August Ge

1990. A hearing was held on September

12, 1990, before Barrow and McCarley.

Plaintiff appealed the decision of Barrow

and McCarley to Brown, the city manager.

A closed hearing was held before Brown on

October 4, 1990, despite the Plaintiff's

request that the hearing be open.

Plaintiff requested that Lanning be

present at the hearing, but Barrow said

that he was unavailable. As a result of

this hearing, Brown sent a letter to

32

Plaintiff, dated October 22, 1990,

offering the Plaintiff reinstatement to

the KPD, but without backpay from August

2, 1990 to October 22, 1990.

The Plaintiff, not happy with this

result, filed suit on January 25, 1991.

The City offered a name clearing hearing

on March 15, 1991. Plaintiff alleges

that the Defendant made defamatory

remarks to the press concerning him, and

that his civil rights had been violated

because he was discharged for exercising

his constitutional rights.

On February 24, 1992, the Plaintiff

was convicted of the felony offense of

aggravated assault of a peace officer

with a deadly weapon. As a result of

this conviction, Plaintiff was sentenced

to five years confinement with the period

of confinement suspended for five years

33

during probation. The Plaintiff was

acquitted of a charge of kidnapping

arising from the same incident. As a

result of this felony conviction,

Plaintiff can no longer be employed as a

police officer.

In general, the Plaintiff claims

that he was discharged from his

employment with the KPD in retaliation

for expressing his opinions and

complaints concerning an investigation

into alleged misconduct by Barrow, and

for refusing to participate in what he

believed was a cover-up of the incident.

He alleges that this violated his right

to free speech under the First Amendment

of the United States Constitution, and

Article I, § 8 of the Texas Constitution.

He further alleges that he was

denied a meaningful opportunity to clear

34

his name of the stigma inflicted by the

Defendants on his reputation, and that

this violated his due process rights

under the Fifth and Fourteenth Amendments

to the United States Constitution, and

Article I, § 9 of the Texas Constitution.

He also asserts state causes of

action for defamation, and negligent and

intentional infliction of emotional

distress against Defendants Barrow,

Brown, and McCarley.

He states that these Defendants

engaged in a conspiracy to violate his

civil rights, all in violation of 42

U.S.C. § 1983, and that the Order was an

unconstitutional infringement of his

First Amendment rights.

Finally, with regard to damages,

Plaintiff argues that he is entitled to

lost wages, loss of earning capacity,

35

past and future mental anguish, severe

emotional distress, future medical ex-

penses, and loss of reputation proximate-

ly caused by the wrongful conduct of the

Defendants, jointly and severally;

punitive damages against the individual

Defendants for their conscious disregard

of his rights; attorneys' fees under 42

U.S.C. § 1988 for violation of his civil

rights; and declaratory and injunctive

relief.

In general, the City, Brown, and

McCarley claim that the Plaintiff was

given a choice to follow department

procedure for investigating misconduct by

@ member of the department, or to resign;

the choice given to the Plaintiff was not

motivated by or in retaliation for his

expression of any opinion or views;

Plaintiff refused to follow department

36

policy, and instead followed his own

course of conduct; he does not have a

First Amendment right to proceed

independently in this manner; and that

any public statements made were not

defamatory, but were made with a

reasonable and good faith belief in their

accuracy.

Defendants further assert that there

is no cause of action for negligent

infliction of emotional distress in an at

will employment relationship. They also

assert that Article I, § 8 of the Texas

Constitution does not create an

independent cause of action for damages.

They next argue that the Defendants'

decision to reinstate the Plaintiff to

his position precludes any recovery for

personal or economic injury after his

refusal to go back to his former

37

position, either as a result of no miti-

gation of damages, a failure of proximate

cause, or the lack of any final action or

wrong to the Plaintiff. Finally, they

assert that the Plaintiff's subsequent

criminal activity is a new and interven-

ing cause that precludes recovery for

personal or economic damages resulting

from the conviction itself or the

underlying acts.

In general, Barrow claims that he

has not violated any established

constitutional, statutory, or common law

rights of the Plaintiff. He alleges that

at all times relevant to this lawsuit, he

acted in his official capacity as Chief

of Police. As such, he claims that he

was not a policy maker for the City

regarding hiring and firing of municipal

employees. All his actions were in good

38

faith and within his legal and

administrative authority. He asserts

defenses of sovereign immunity,

governmental immunity, qualified

immunity, good faith immunity, and

official immunity. Barrow further

asserts that Plaintiff's claim is

frivolous and should be dismissed as such

pursuant to Rule 12(b) (6).

II. Motion to Dismiss Standard

A motion to dismiss under Rule 12

(b) (6) "is viewed with disfavor and is

rarely granted." Kaiser Aluminum and

Chemical Sales, Inc., 677 F.2d 1045, 1050

(Sth Cir. 1982) quoting 5 C. Wright and

A. Miller, Federal Practice and Procedure

§ 1357 at 598 (1969). It is well settled

that a "complaint should not be dismissed

for failure to state a claim unless it

appears beyond doubt that the Plaintiff

39

can prove no set of facts in support of

his claim which would entitle him to

relief." Conley v. Gibson. 355 U.s. 41,

45-46 (1957); Boudeloche v. Grow Chemical

Coatings Corps., 728 F.2d 759, 762 (5th

Cir. 1984); Kaiser, 677 F.2d at 1050.

When considering such a motion, the

complaint must be liberally construed in

the plaintiff's favor, and all facts

pleaded in the complaint should be

accepted as true. Campbell v. Wells

Fargo Bank, N.A., 781 F.2d 440,442 (5th

Cir. 1986). "The question therefore is

whether in the light most favorable to

Plaintiff and with every doubt resolved

in his behalf, the complaint states any

valid claim for relief." 5 Wright and

Miller, Federal Practice and Procedure,

Section 1357 at 601. While this law is

accurate, it should be pointed out that

40

the procedural requirements are somewhat

heightened in a § 1983 cause of action.

The Plaintiff must set forth specific

factual allegations in his Complaint

which are necessary to sustain the

conclusion that Defendants' conduct

violated clearly established law.

Conclusory allegations alone are

insufficient. Elliott v. Perez, 751 F.2d

1472 (5th Cir. 1985).

III. Summary Judgment Standard

Summary judgment is appropriate only

if "there is no genuine issue as to any

material fact and...the moving party is

entitled to a judgment as a matter of

law." Fed. R. Civ. P. 56(c). The party

seeking summary judgment bears an

"exacting burden of demonstrating that

there is no actual dispute as to any

material fact in the case." Impossible

41

Electronic Techniques, Inc. v. Wackenhut

Protective Systems, Inc., 669 F.2d 1026,

1031 (5th Cir. 1982).

In determining whether the movant

has met its burden, the Court must view

the evidence introduced and all factual

inferences from the evidence in the light

most favorable to the party opposing

Summary judgment. See id. at 1031. All

reasonable doubts as to the existence of

a genuine issue of material fact must be

resolved against the movant. See id. at

1031; Jones v. Western Geophysical Co. of

America, 669 F.2d 280, 283 (5th Cir.

1982). When determining whether to grant

summary judgment, the Court is merely

determining whether a factual dispute

exists and may not resolve those

disputes. See Jones, 669 F.2d at 283.

The fact that it appears to the court

42

that the non-movant party is unlikely to

prevail at trial or that the movant's

statement of facts appears more plausible

is not a reason to grant summary

judgment. See id. at 283.

Once the movant has shown the

absence of material factual issues, the

opposing party has a duty to respond with

any factual assertion that would preclude

summary judgment. See Kleckner v.

Republic Van & Storage Co., 556 F.2d 766,

771 (5th Cir. 1977). Rule 56(e) of the

Federal Rules of Civil Procedure provides

that "(wjhen a motion for summary

judgment is made and supported as

provided in this rule, an adverse party

may not rest upon the mere allegations or

denials of his pleading, but his

response, by affidavits or as otherwise

provided in this rule, must set forth

43

specific facts showing that there is a

genuine issue for trial. If he does not

So respond, summary judgment, if

appropriate, shall be entered against

him." In this respect, the burden on the

non-moving party is not especially heavy;

however, he must show specific facts that

present a genuine issue of material fact

worthy of trial rather that showing mere

general allegations. See Gossett v. Du-

Ra-Kel Corp., 569 F.2d 869,872 (Sth Cir.

1978).

IV. Discussio

A. Motion to Dismiss -- Barrow:

Barrow asserts that Plaintiff has

failed to state a claim for deprivation

of his liberty interest because Plaintiff

received tow full “name clearing" type

hearings upon request, and Plaintiff

failed to attend a third "name clearing"

44

hearing which was offered. Therefore,

Barrow claims that-as a matter of law

Piaintiff's Fourteenth Amendment due

process rights have been afforded hin.

Barrow next argues that there is no

cognizable liberty interest in reputation

alone, and that absent a claim of "some

injury to employment or employment

opportunities, in addition to an injury

to reputation, and subsequent denial of

procedural due process to redress the

injury," a constitutional claim for

deprivation of liberty has not been made.

Barrow further asserts that Plaintiff has

not demonstrated that the "speech" was

clearly a matter of public concern, and

therefore Plaintiff cannot prove a set of

facts entitling him to relief under the

First Amendment. Barrow next states that

he is entitled to immunity for his

45

actions, and that Plaintiff's claims of

conspiracy are not supported by the

facts.

The Court is of the opinion that

Barrow has insufficiently established a

right to dismissal under the standard

established for Rule 12(b)(6) motions.

As stated above, these motions are viewed

with disfavor and are rarely granted.

Barrow has asserted allegations that need

evidence to support then. Therefore,

this Court believes that Barrow's

subsequent summary judgment motion is the

proper vehicle for voicing such defenses

and claims. Accordingly, the Court is of

the opinion that Defendant Barrow's

Motion to Dismiss and Supplemental Motion

to Dismiss lack merit and should be

denied.

B. Motion for Summary Judgment -- The

46

City of Kerrville, Brown, and McCarley:

1. First Amendment:

Defendants first assert that

Plaintiff has not alleged a cognizable

constitutional right to free speech under

the First Amendment. In particular,

Defendants state that "there is no First

Amendment right to conduct an investiga-

tion into the conduct of a superior

officer in a paramilitary organization

such as a police department." Motion at

3. Defendants do not support this con-

tention with any authority, and the Court

does not know of any such authority.

Defendants next assert that under

the two prong test of Dennison v. County

of Frederick, 921 F.2d 50 (4th Cir.

1990), the Plaintiff has failed to

establish that (a) speech or expressive

conduct was involved, and (b) the speech

47

was of a protected type (i.e., was of

"public concern". In Dennison, a county

building inspector sued the county

alleging that he was constructively

discharged in violation of his civil

rights because of conflicts he had with

city officials over how strictly to

enforce the city's building code. The

Fourth Circuit upheld the district

court's summary judgment for the

defendant, holding that the plaintiff

failed to identify any "speech" for which

he was discharged. Moreover, the Court

held that even assuming that the

Plaintiff's conduct constituted "speech,"

the speech was not a matter Of public

concern, and therefore was undeserving of

constitutional protection. The Court

admitted that if building safety was at

issue, it might have amounted to a matter

48

of public concern, but the plaintiff

never so alleged.

The Plaintiff argues that in Brawner

v. City of Richardson, 855 F.2d 187, i91

(Sth Cir. 1988), the Fifth Circuit held

that a public employee may not be

discharged for exercising his right to

freedom of speech on matters of public

concern. The Plaintiff alleges that

allegations of misconduct on the part of

the Chief of Police of Kerrville, as in

Brawner, does amount to speech of public

concern. He further argues that public

concern is implicated if the information

conveyed is of relevance to the public's

evaluation of the performance of

governmental agencies. Coughlin v. Lee,

946 F.2d 1152, 1156-57 (5th Cir. 1991).

Such concern is plainly implicated in

this case.

49

This Court is of the Opinion that

alleged misconduct by the Chief of Police

is clearly a matter of public concern.

That alone, however, does not end the

inquiry. This Court must make the

initial determination of whether the

Plaintiff has alleged sufficient facts to

constitute "speech," or expressive con-

duct cognizable as "speech." The Defend-

ants point out in their Reply that this

is not a case where the Plaintiff "went

to the District Attorney, Texas Rangers,

the City Council, the Mayor, or the City

Manager (as was the case in Brawner)."

Reply at 3. Instead, Defendants argue

that this is a case where the Plaintiff

refused to cooperate in an internal

investigation according to Department's

internal procedure; Defendant defied his

Superiors and carried out his own inves-

50

tigation illegally.

Plaintiff ignores this first element

of the two part test. He totally focuses

upon the accurate statement that police

misconduct is a matter of public concern.

He then states that the Defendant's

assertions that his actions did not

amount to “speech” are meritless. He

does not say why such allegations are

meritless. This Court is of the opinion

that Plaintiff has not established that

his rights to free speech were violated.

Even accepting his allegations in his

Complaint as true, as this Court must do,

he has alleged no facts which constitute

"speech." In Brawner, the speech at

issue was a letter to the City Manager

and the Mayor. As in Dennison, the

present case involves a dispute over a

general course of conduct, not the

51

expression of any idea or opinion. The

Plaintiff “never evinced an intent to

convey a particularized message" which

was relevant to the public. Dennison at

54. Rather, he properly reported the

potential misconduct to the appropriate

authorities, and was subsequently unhappy

with the results. He did not go the

press, or to the city officials; he just

continued the investigation himself. As

indicated in the Supplemental Record

References filed by the Defendants, the

Plaintiff reported these incidents with

the sole purpose of asking for advice

about what to do. He did not contact an

outside agency to report the misconduct.

When asked to make a written report, he

even refused to do so.

Even assuming arguendo that his

conduct did amount to speech, moreover,

52

it was not protected under the balancing

test reiterated in Dennison and Kinsey v.

Salado Independent School District, 950

F.2d 988, (5th Cir. 1992). His discharge

did not violate the First Amendment as a

matter of law because no "speech" was

involved. Accordingly, Defendants motion

should be granted with regard to the

First Amendment issue.

as Cause of Action for Damages

Under Art. I, § 8:

Defendants next argue that there is

no right to damages under Article I,

Section 8, of the Texas Constitution

analogous to a Bivens action under the

First Amendment. As set forth above,

Plaintiff has not established any

"speech" cognizable under the First

Amendment. Likewise, he has not

established it for purposes of Article I,

53

§ 8, analysis. The Defendant also

correctly points out, moreover, that

there is no independent cause of action

under this provision. Accordingly,

Defendants motion should be granted with

regard to the Article I, § 8, issues.

a Deprivation of Liberty Without

Due Process of Law:

Defendants next assert that none of

the pleaded statements alleged to be made

in the course of Plaintiff's termination

rises to the level of a "badge of

infamy," thus destroying the Plaintiff's

ability or chances to engage in the

legitimate pursuit of employment.

Moreover, Defendants assert that

Plaintiff was given the opportunity to

clear his name in two separate hearings,

and in a third hearing which Plaintiff

refused to attend.

54

Plaintiff argues that he was clearly

discharged from public employment under

circumstances that put his reputation,

honor, and integrity at stake. Under

such circumstances, one has a constitu-

tional right to clear his name in a

public hearing. Rosenstein v. City of

Dallas, 876 F.2d 392, 395 (5th Cir.

1989), aff'd on relevant grounds, 901

F.2d 61 (en banc) (per curiam), cert.

denied, 111 S.Ct. 153 (1990). Moreover,

a person can recover monetary damages for

a“ a violation of liberty under § 1983.

Id. Plaintiff asserts that the hearing

before Brown was a sham. He further

claims that he requested an open hearing,

and was denied the same. He also states

that Lanning was not present at the

hearing despite Plaintiff's request.

In Rosenstein, the Fifth Circuit

It is now beyond any doubt that

discharge from public

employment under circumstances

that put the employee's

reputation, honor or integrity

at stake gives rise to a

liberty interest under the

Fourteenth Amendment to a

procedural opportunity to clear

one's name...Moreover, the pro-

cess due such an individual is

merely a hearing providing a

public forum or Opportunity to

clear one's name, not actual

review of the decision to dis-

charge the employee. {In such

a case,]) the individual may

recover monetary damages under

§ 1983 for the deprivation of

his liberty under the Fourteen-

th Amendment. To succeed on

this § 1983 claim for the

denial of a name-clearing hear-

ing, the employee must prove

the following: that he was dis-

charged, that defamatory

charges were made against him

in connection with the dis-

charge, that the charges were

false, that no meaningful

public hearing was conducted

pre-discharge, that the charges

were made public, that he

requested a hearing in which to

Clear his name, and that the

request was denied.

56

Id. at 395-96

It is undisputed that hearing was

held before Brown, and the Frlaintiff was

offered his job back. Moreover, the City

later offered a formal name clearing

hearing, albeit after this litigation

commenced, and the Plaintiff refused this

avenue, presumably choosing to pursue

this cause of action instead. The

Plaintiff alleges significant

reputational injury such that he could

not gain suitable employment following

his discharge. This Court is of the

opinion that he has not established the

Significant reputational injury as a

matter of law. He was offered his own

job back, and refused to accept it on the

grounds that they refused to provide him

back-pay. He clearly had suitable

employment opportunities after the

57

alleged discharge; he could have gotten

his old job back. Therefore, this Court

is of the opinion that summary judgment

Should be granted with regard to the

liberty interest issue.

4. Defamation:

Defendants Brown and McCarley next

argue that the alleged statements made by

them were not defamatory as a matter of

law.?

They allege that they were simply

hyperbole and opinion, not factual

misstatements. Defendants proceed, in

their Motion and Reply, to demonstrate

why these statements were not defamation.

In Rosentein v. City of Dallas, 876

F.2d 392 (5th Cir. 1989), the Fifth

Circuit Court of Appeals held that

"defamation of a police officer by city

Plaintiff's defamation cause of

action only pertains to Defendants Brown,

Barrow, and McCarley.

58

officials in the course of discharging

that police officer is protected under

the city's governmental immunity and, as

an exercise of a governmental function,

is not actionable against either the city

or the officials under state slander

law." Rosentein at 397 (quoting City of

Dallas v. Moreau, 718 S.W.2d 776, 779-80

(Tex. App.--Corpus Christi 1986, writ

ref'd n.r.e.). Therefore, this Court is

of the opinion that both the city and the

city officials are not liable for

defamation as a matter of law, and

summary judgment should be granted in

that respect.

5. Intentional Infliction of

Emotional Distress:

Defendants further allege that the

claim of intentional infliction of

emotional distress is groundless and that

59

the statements, if true, coupled with the

actions of the officials, are not

outrageous conduct which exceeds all

bounds of decency and expected behavior.

Without some evidence of outrageous

conduct, this issue should not be

submitted to the jury.

Plaintiff argues that the

Defendants' "tangled web of deliberate

falsehoods evidences their attempts to

disguise their outrageous conduct in

punishing the Plaintiff." Response at

15. As a result of this outrageous

conduct, Plaintiff states that he has

suffered depression, worry, anxiety,

public humiliation, wounded pride, and

mental pain and suffering.

Viewing the summary judgment

evidence in its entirety, it is clear

that the Defendants' conduct did not

60

amount to "outrageous conduct." As Judge

Kazen pointed out in Soto v. City of

Laredo, 764 F.Supp. 454 (S.D. Tex. 1991),

this type of tort is difficult to

establish because the Plaintiff must show

that the Defendants' conduct was "extreme

and outrageous," and that his own

emotional distress was "severe." Soto at

457. This Court is of the opinion that

summary judgment should be granted with

regard to the intentional infliction of

emotional distress claim against

Defendants Brown and McCarley.

With regard to Defendant City of

Kerrville, moreover, intentional

infliction of emotional distress is

barred by the specific exemption

contained in the Texas Tort Claims Act.

Section 101.057 of the Texas Civil

Practices and Remedies Code provides that

61

the Act's limited waiver of immunity does

not apply where the claim is one "arising

out of assault, battery, false

imprisonment, or any other intentional

tort." Therefore, this Court is of the

opinion that summary judgment will be

granted with regard to the intentional

infliction of emotional distress claim

against the City as well.

6. Negligent Infliction of

Emotional Distress:

Defendants, citing Fiorenza v. First

City Bank, 710 F.Supp. 1104 (E.D. Tex.

1988), also argue that Texas does not

recognize an independent tort for

negligent infliction of emotional

distress in the employment context as an

exception to the "at will" employment

doctrine. Plaintiff argues that recent

case authority has implicitly overruled

62

Fiorenza.

In Fiorenza, Judge Cobb noted that

"the Texas Supreme Court does not yet

recognize a separate cause of action in

the employee/employer relationship for

negligent infliction of emotional

distress." Contrary to the Plaintiff's

assertions, this concept has not been

implicitly overturned. As recently as

March 10, 1992, the Fifth Circuit has

reiterated this concept. Conaway v.

Cont a -, 955 F.2d 358, 361

(5th Cir. 1992). Therefore, this Court

is of the opinion that Defendants' motion

should be granted with regard to the

claim for negligent infliction of

emotional distress.

7. Civil Conspiracy:

Defendants next assert that absent

an agreement, there can be no civil

63

conspiracy. Additionally, they urge the

Court to treat this cause of action in

the same manner as the negligent

infliction of emotional distress cause of

action and hold that it provides no back

door by which the employee can get around

the employer's right to terminate an

employee at will, even if the decision

makers have communicated with each other

concerning the conduct or performance of

the employee.

In order to have a conspiracy cause

of action, it is necessary for the

Defendants to conspire to deprive the

Plaintiff of his constitutional rights.

Because this Court has already determined

that Plaintiff failed to establish

"speech" sufficient to implicate the

First Amendment, this can provide no

basis for civil conspiracy.

64

Additionally, this Court's determination

that Plaintiff was not deprived of

"liberty" in violation of the Fourteenth

Amendment, precludes recovery under a

civil conspiracy theory. Therefore,

summary judgment should be granted with

regard to the civil conspiracy issue.

8. Texas Common Law Wrongful

Termination:

The Defendants next assert that

under the "at will" employment doctrine

in Texas, Plaintiff's wrongful termina-

tion claim is meritless. Defendants

state that the exception established in

Sabine Pilot Service, Inc. v. Hauck, 687

S.W.2d 733 (Tex. 1985), does not apply in

these circumstance. In that case, the

Texas Supreme Court held that public

policy requires a narrow exception to the

employment-at-will doctrine for an

65

employee who was discharged for the sole

reason that the employee refused to

perform an illegal act. [In such a case,

the Court held that it is the employee's

burden to prove by a preponderance of the

evidence that his discharge was for no

other reason than his refusal to perform

an illegal act. Defendants argue that it

is not illegal for a police organization

to determine who will investigate

violations of the law by members of the

force, or to compel cooperation of its

members with formal procedures.

Plaintiff points out that this

doctrine was expanded in Johnston v. Del

Mar Distributing Co., 776 S.W.2d 768

(Tex. App.--Corpus Christi 1989, writ

denied), where the Corpus Christi Court

of Appeals held that the Sabine Pilot

exception also applies where an employee

66

has a good faith belief that his employer

has ordered him to perform an act which

may subject him to criminal penalties.

Plaintiff argues that the he did have 2

good faith belief that the Defendants’

demands that he "cooperate" in an

investigation to "clear" the name of

Barrow or surrender his badge left him

with the choice of (1) risking criminal

liability for participation in a cover-up

of possible illegal activity by Barrow,

or (2) being terminated or suspended by

the Defendants. The Defendants argue

that their demand that he "cooperate"

with formal procedures did not amount to

a cover-up. In fact, he was ordered to

give a formal written statement of the

allegations.

This Court is of the opinion no fact

issues exist with regard to the wrongful

67

termination claim. The exception set

forth in Johnson contemplates that the

employee was terminated for his good

faith belief in the illegality of his

potential conduct. The summary judgment

evidence in this case establishes that

Plaintiff could not have had such a good

faith belief in this case. Plaintiff was

given the opportunity to make a written

statement concerning his investigation,

pursuant to the departmental rules.

Plaintiff was given the option of resun-

ing his employment with the department,

as well as a formal name clearing hear-

ing. Therefore, summary judgment should

be denied with regard to the wrongful

termination claim.

é. Motion for Summary Judqment -- Brown

and McCarley:

In a second Motion for Summary

68

Judgment, Defendants Brown and McCarley

move for summary judgment on the basis of

qualified immunity, as set forth in

Harlow v. Fitzgerald, 457 U.S. 800, 102

$.Ct. 2727, 73 L.Ed. 2d. 396 (1982). In

Harlow, the Supreme Court held:

[G]overnment officials

performing discretionary

functions generally are

shielded from liability for

civil damages insofar as their

conduct does not violate

clearly established statutory

or constitutional rights of

which a reasonable person would

have known.

Reliance on the objective

reasonableness of an official's

conduct, as measured by re-

ference to clearly established

law, should avoid excessive

disruption of government and

permit the resolution of many

insubstantial claims on sum-

mary judgment. On summary

judgment, the judge appropri-

ately may determine, not only

the currently applicable law,

but whether the law was clearly

established at the time an

action occurred. If the law at

the time was not clearly esta-

blished, an official could not

69

reasonably be expected to

anticipate subsequent legal

developments, nor could he

fairly be said to "know" that

the law forbade conduct not

previously identified as

unlawful....If the law was

clearly established, the

immunity defense ordinarily

should fail, since a reasonably

competent public official

should know the law governing

his conduct.

Harlow at 818.

Because of this Court's determination

that the Defendants did not violate

Plaintiff's First Amendment right to free

speech or Fourteenth Amendment liberty

interest, Brown and McCarley were Clearly

shielded from liability for civil damages

resulting from those activities.

Moreover, because of this Court's

determination that summary judgment

should likewise be granted with regard to

the pendent state law claims, this case

should be dismissed.

70

D. Motion for Summary Judgment --

Barrow:

Barrow also filed a Motion for

Summary Judgment in which he alleges that

there is no genuine issue as to any

material fact and he is entitled to

judgment as a matter of law. Barrow

incorporates the arguments made by the

City, Brown, and McCarley in their Motion

for Summary Judgment, as well as setting

forth his own arguments.

This Court is of the opinion that

the same reasoning adopted above applies

to Barrow. Therefore, Barrow's Motion

for Summary Judgment should be (1)

granted with regard to the First

Amendment issue; (2) granted with regard

to the Article I, § 8, issue; (3) granted

with regard to the liberty interest

issue; (4) granted with regard to the

71

defamation issue; (5) granted with regard

to the intentional infliction of

emotional distress issue; (6) granted

with regard to the negligent infliction

of emotional distress issue; (7) granted

with regard to the civil conspiracy

issue; and (8) granted with regard to the

common law wrongful termination clain.

V. Conclusion

Based upon the foregoing, it is

clear that Defendants are entitled to

summary judgment as a matter of law.

Accordingly, it is

ORDERED that Defendant Louis A.

Barrow's Motion to Dismiss and

Supplemental Motion to Dismiss are

DENIED. It is further

ORDERED that Defendants' (City of

Kerrville, Glenn D. Brown, and Kirk

McCarley) Motion for Summary Judgment is

72

GRANTED. It is further

ORDERED that Defendants' (Glenn D.

Brown and Kirk McCarley) second Motion

for Summary Judgment is GRANTED. It is

further

ORDERED that Defendant Louis A.

Barrow's Motion for Summary Judgment is

GRANTED. It is further

ORDERED that this case is DISMISSED.

It is further

ORDERED that any pending motions not

previously ruled upon are DENIED as moot.

SIGNED this 30th day of November,

1992.

ss/

WALTER 8S. SMITH, JR.

United States District Judge

73

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

DAVID GILLUM

Vv.

THE CITY OF KERRVILLE,

TEXAS, GLENN D. BROWN,

in his official capacity

as City Manager and in

his individual capacity,

LOUIS A. BARROW, JR.

in his official capacity

as Police Chief, and in

his individual capacity,

KIRK MCCARLEY, in his

official capacity

as Personnel Director,

and in his individual

capacity

JUDGMENT

In accordance with its Order granting

Defendants' Motions for Summary Judgment,

the Court enters judgment as follows:

IT IS ORDERED, ADJUDGED AND DECREED

that Defendant Louis A. Barrow's Motion

to Dismiss and Supplemental Motion to

MAAMAAAAAAAAAAMAMMH

CIVIL ACTION

NO.

SA-91-CA-0090

November 30,

1992

74

Dismiss are DENIED.

IT IS ORDERED, ADJUDGED AND DECREED

that Defendants' (City of Kerrville,

Glenn D. Brown, and Kirk McCarley) Motion

for Summary Judgment is GRANTED.

IT I8 ORDERED, ADJUDGED AND DECREED

that Defendants' (Glenn D. Brown and Kirk

McCarley) second Motion for Summary

Judgment is GRANTED.

IT IS ORDERED, ADJUDGED AND DECREED

that Defendant Louis A. Borrow's Motion

for Summary Judgment is GRANTED.

IT I8 FURTHER ORDERED, ADJUDGED AND

DECREED that this case is DISMISSED.

SIGNED this 30th day of November,

1992.

ss/

WALTER 8. SMITH, JR.

UNITED STATES DISTRICT JUDGE

75

(Transcribed from the tape recorded on

August 2, 1990, by David Gillun. Subjects

involved in the tapes:

1. Chief of Police, Louis Allwin

Barrow, Jr. ("Allwin" or "Chief")

2. I.A.D. Officer Joe Lanning ("Joe")

3. Lieutenant Rosie McCray ("Rosie")

4. Personnel Director Kirk McCarley

("Kirk")

59. Officer David Gillum ("David")

Taped conversation after David was called

in to I.A.D. office by Joe.)

David: "Joe"

Joe: "Yeah. I need to change my

position around on this deal.

I've talked to Debbie and I'm

going to talk to Cheryl and I

will be more than happy to let

you read over any of their

statements or go over anything.

David:

76

Okay? But the reason I'm chang-

ing my position on this is I

would like you to be assured

yourself, you know that every-

thing is on the up and up, and

on the same hand and I looked

over read the directives again.

All internal investigations

have to be handled through this

office. Okay?

"Yeah."

"i.e. investigator."

"Okay."

"And this is now going to

become an investigation."

"Even without having anything

being written up because it has

to be submitted and signed and

all that kind of good stuff."

Joe:

David:

Joe:

David:

Joe:

David:

Joe

David:

77

"The reason behind it is

because this allegation is

serious about the executive of

this department and I don't..."

"Joe, are we talking about two

different deals here?"

"No, I'm Saying that there is a

way to handle an investigation

not by a patrolman."

"Okay."

"You brought this allegation

you brought this information to

your supervisor which was

"Yeah."

"I don't know what her reconmn-

mendations were if she told you

to come to this office or not."

"Okay. Go ahead."

David:

78

"But you're now in this office

and I know about this and I

can't allow you to continue

this investigation. You're not

trained to do it. And these

allegations are so serious that

Debbie and I'm going to talk

with Cheryl. I don't know who

the original anonymous person

is but I want to make sure that

we are not dealing out of the

guidelines by you being in-

volved in an internal investi-

gation and get yourself ona

hook because I told you to go

ahead and keep doing it. I

can't do that. I can't tell

you to keep on with the inves-

tigation."

"Okay. Uh."

Joe:

David:

Joe:

David:

Joe:

79

"And I don't want it to stop

because you're going to sit

there and think that ‘Yeah. Joe

just wants me off this thing.'"

“Well, honestly that is pre-

cisely what I'm thinking."

"Well."

"I'm having...even if the

guidelines were set up that you

investigate any misdeeds by any

personnel of the Kerrville

Police Department. Aren't we

overstepping one of the guide-

lines without a written...I

came to you yesterday as a

friend saying, 'Look, I don't

know how to handle this. Am I

doing it right?'"

"Well, you're not doing it

right. That's the problem."

David:

Joe:

David:

80

"Okay. I'm not doing it right

by procedures or I'm not doing

it right by...*

"Right. We are not doing it

right by procedures because

you're investigating an alle-

gation and you don't have the

authority to investigate that

allegation."

"Do I have the authority to

investigate an allegation of a

citizen - somebody out here on

the street. Somebody tells me

that this...*

"This is not an allegation of a

citizen on the street about

some other person. This is no

complaint as to other people.

You're talking about members of

this department."

David:

Joe:

David:

Joe:

David:

Joe:

David:

81

"Right."

"And the only people to inves-

tigate members of this depart-

ment is this divisicn."

"Okay."

"Now what should have happened

was the minute you told Rosie

about this, she should have

come to me or she should have

sent you to me and her sit down

in here and talk about this.

What was her advice to you?

What did she tell you to do? or

did she give you any advice?"

"Well, there was no...It's just

kind of throw your hands up."

"If she's throwing her hands

wp...*

"Not, not, no not..."

Joe:

David:

Joe:

David:

82

"Did she tell you to come see

me?"

"No. Matter of fact that was

all my own idea and right now I

wish I hadn't of."

"Well, now it's in my lap and I

don't have any other choice.

Because I can't allow you to

keep going out here and inves-

tigating or something of this

nature on another member of our

department. You to a point and

I'm aware of that and I may —

have violated it already by

letting you do what you did

yesterday."

"Well, if it's any consolation

to you, I'm not going to write

you up because of it. Joe,

things have changed. Things

Joe:

David:

Joe:

David:

83

have changed in this depart-

ment. People's attitudes have

changed. I, I'm having a hard

time understanding what you

said yesterday about hearing

complaints but everything seems

to be on the rosy side. Evi-

dently, we're not talking about

the same people."

"We're talking about the same

people."

“Because there's somebody lying

somewhere."

"About what?"

"Uh...I don't know too many

patrolmen - matter of fact, I

don't of any whose had anything

good to say about this adminis-

tration."

Joe:

84

"Okay. The same patrolmen come

to me and I don't know if it's

the same ones. But I've had a

number of people in my discus-

sions with them after this book

came out saying 'Joe, there are

a few people who are disgrunt-

led and upset because the

things that happened to them.

I ain't going to beat around

the bush. It's people from the

task force that got changed

over here and felt they were

unfairly treated - felt that

they should have their own rank

given to the back which I don't

agree to. I mean not their own

rank but the rank they left

with from the 216 task force

that they should have kept the

85

Same rank when they came back

here. That's bullshit. They

went over there to get their

job. Nobody tested for those

positions to get over to 216

task force. Nobody else had an

opportunity to go to those

positions and why they should

Still be considered investi-

gators here at the P.D. This is

just my own private opinion,

okay. And I know that's why

some of them are upset because

they have lost their pay, they

don't like the way they were

turned away from 216 which had

really more to do with the

commander of 216 than it did

with the commander here. Uh,

but if you talk to the com-

David:

86

mander over there, I'm sure

he's going to load it all on

this one here, okay. But those

are the things that are coming

back to me from the people I

talked to. But, yes, morale is

low. I'm not saying they're

out there jumping around. They

feel that there's a bunch of

secrecy going around, you know,

that they're not being informed

- they're not being told

things."

"Oh, yeah, we're being told

things - that we're doing it

wrong. Uh, in the past - I

would say in the past week and

a half, our paperwork has pro-

bably tripled. Now this is...

87

if I went to work in San

Antonio, San Antonio Police

Department right now, you know,

they would train you so to

speak in their paper work

System, and, you know, guide

you along. But we've been here

an I've been here for what -

three and half years. We've

done it one way. It may have

been wrong. I'm not Saying it

was right but we've done it

this one way but now all of the

Sudden we've been bombarded by

things that boggle...you, I

mean, when are we going to get

on the streets? It's writing,

writing, writing..uh..and a lot

of it is duplications. Seems

like computers are far better

Joe:

88

at duplicating than we are. So

that's what a lot of the moan-

ing and groaning is about

that."

"And a lot of it has to do with

that system because there - you

write it up one way and you

lose the ability to find it

again. I'm not saying that's

the only reason but if you

don't generate the right kind

of report for that system, it's

very simple to lose it and not

be able to find it the way you

should if you do a arrest re-

port. You should be able to

look up the information and

find the narratives and every-

thing but if it refers back to

a offense report that doesn't

89

exist, that wasn't generated,

then okay. I'm just saying

that's just part of it. part

of it is trying to keep what

you're doing on paper in line

with what they have to put into

the computer. So they don't

have to keep flipping pages

back and forth - that the

screen they see here is going

to be the thing they are look-

ing at there. Because the way

it used to be - it was shit for

them because some of the infor-

mation would be here, some of

it would be on the back, some

of it would be up here. So

it's a physical problem as

well, okay. And then trying to

mesh what they need in there

David:

Joe:

90

and fit what ya'll are going to

be using out here to make sure

all the questions that are

being asked on here are being

asked on here. So they came up

with a form and they didn't

like it. They came up with

another form and yeah, it's a

transition. And that's the

whole reason for this four-page

memo that came in the other day

about the report that's hanging

on the wall."

"Which is to be read every day

for a week. I know, I've read

1t.*

"Well, I know, I'm sure, I have

to read it every time I did a

report, you know, to make sure

I did it right."

David:

Joe:

David:

Joe:

David:

Joe:

91

"Somebody has smoked in here."

"Yeah."

"Do you mind if I smoke in

here?"

"No, go ahead. Uh...just flip

that on."

"Okay."

"Right now the Chief's super-

visor is aware of this and I'm

going to need to talk with him

again tomorrow because I know

that there is going to be a

bitter taste in your mouth

about this, thinking that there

has been half an investigation

done by..unclear..is that your

duty and responsibility is to

bring this to the attention of

your commander and your conm-

mander is to bring it to the

David:

Joe:

David:

Joe:

David:

92

attention of Internal Affairs.

Not for you to do the inves-

tigation, now if..."

"But the, I haven't formally

put in writing uh presented you

with anything."

"That's true, but I can't allow

you to continue your investi-

gation and I can't allow, after

hearing this portion of the in

vestigation, but to follow up

on it. I know it's a catch 22.

"No because somebody is going

to benefit for it somebody is

going to benefit."

"Look, I'm going to tell you

this. I don't give a shit

right now whether you trust me

or not, okay?"

"Okay."

93

"I'm going to have to do this

the way I see fit whether you

like it or not."

"Okay."

"Now, whether or not you trust

me, that's incidental."

"Frankly, I don't, I_ don't not

on this, not on this, fr don't.

I'm not going to lie to you.

I'm not going to stand..."

"I don't know how to make you

trust me. All I know now is

that I'm going to have to do a

full investigation, a written

documented investigation, be-

cause I have to cover my ass

when you tell someone else out

here that I went in there and

that's all a crock of shit."

David:

Joe:

David:

Joe:

94

"That I went in there and

that's a crock of shit?"

"Yeah, that you went in there

and you told me and they cover

it up, because I perceive as

that being the next step, I

perceive that as being the next

rumor. All I'm telling you

right now is, is that you are

no longer involved in this in-

vestigation, and I will talk

with Rosie in the morning and

tell her that as well and you

are not to contact any more

witnesses in regards to this

investigation. Do you under-

stand?"

"Oh, yeah I understand."

"Okay. I will be on the phone

in ‘ust a minute and discuss

95

this with your Lieutenant and

you will cooperate with this

investigation to its fullness,

which means that I have to take

a statement from you..."

“No, Chuck..uh..I mean Joe, we

Will get an attorney, that...I

just ended this discussion."

"You're going to have a seat

right now and we are going to

get your Lieutenant and we are

going to discuss this...you

don't have to say another word

for right now."

"Let me take care of this.

I'll be in the office."

"All right."

August 2,

96

1990

(Taped conversation of meeting between

Joe,

Rosie and David. This meeting

immediately followed the meeting between

Joe and David.)

Joe:

o |

"—"3.*

"Have a seat...close the

door... What is happening is

David came into my office yes-

terday and advised me, wanted

to know if I would be able to

handle a complaint against the

Chief...in regards to allega-

tions that he was involved in

some type kind of pot party. I

don't...if it was just a party

or just involved with someone

smoking pot. Uh...since then,

I've talked with the...uh,

97

Personnel Director, talked tc

Kirk and explained to him, what

was the known...uh, because it

is (unclear) problem, which is

going to require an internal

investigation. I've told him

that he is not to contact any

of the witnesses involved in

this mess, that I'm going to

document, that if he Wishes,

uh..that I don't have a problem

with him reading the documen-

tation. I've also explained to

him, that he is to cooperate

fully with this investigation,

at which point..uh..he said,

'No, I want to talk with my

attorney' and that's the crust

of where we're at. Uh..because

this is a civil situation, not

David:

Joe:

David:

Joe:

David:

Joe:

98

a criminal situation, you are

not entitled to an attorney and

if you refuse to answer ques-

tions regarding to an investi-

gation. That is grounds for

charges of insubordination...do

you understand that?"

"Yes sir, I do."

"Okay."

"and I refuse."

"to answer.any of my

questions."

"From here on yes...from while

ago before you called the

Lieutenant."

"Okay...those questions would

be in regards to when you be-

came aware of this complaint,

what you did, and (word un-

Clear) to the complaint...and

David:

Joe:

David:

Joe:

David:

Joe:

David:

Joe:

David:

99

you're telling me now that

you're going to refuse to

answer any of those questions?"

"Yes sir."

"Okay...uh."

"Other people got a little

integrity too."

"This has nothing to do with

integrity."

"Okay."

"You understand that you are

not to contact any of the

witnesses in this case?"

"I understand. I told you I

understood a while ago."

"Okay...and that you are not

conduct any further investi-

gation into this on your own.

"IT understand."

Joe:

David:

Joe:

David:

Joe:

David:

Joe:

Rosie:

100

"Okay...right now that's all

that's going to be done. I

don't plan to..uh..question you

any further, until 8:00

tomorrow morning.

"Am I going to get paid for

being in here?"

"You're not suspended...I mean

I don't see why. Uh..what time

do you come on duty - 5:00?"

"No, I'm off tomorrow."

"Okay...you're on duty tonight

until when?"

"3:00 AM"

"Who else is on shift?"

"Roesler, Judd, Harst, up until

9:00 then you have (word

unclear). I don't know exactly

who all's on then...you should

Joe:

David:

Rosie:

David:

Rosie:

David:

101

have about three more come on

then and Harst will go home."

"Okay...David, I'd like to talk

with your Lieutenant in

private."

"Go ahead."

"David."

"Yes, ma'am."

"You can go back on the

streets."

"Yes, ma'am."

102

August 2, 1990

(Taped conversation of meeting between

Joe, Rosie, David, Kirk and Chief Allwin

Barrow. David was called in from patrol

for this meeting approximately 30 minutes

after the meeting between Joe, Rosie and

David.)

David: "Hello, Kirk."

Kirk: "How're you doing?"

David: "Pretty good."

Kirk: "Good."

Allwin: "Have a seat."

David: "I assume you want it closed."

Allwin: "You want to let me know what's

going on?"

David: "Uh...-I'd rather not, because

it does involve you and somehow

nd don't Ow W managed to

do it, but got crossways with

Joe and uh...by terminating any

Allwin:

David:

Allwin:

Kirk:

David:

Kirk:

David:

Kirk:

David:

Allwin:

David:

Allwin:

David:

103

type in interview...uh, rather

not discuss it anymore."

"You wouldn't."

"I wouldn't...rather discuss it

anymore."

"Okay."

"Can we assume then that the

issue is dead?*

"No sir."

"Then if you're not going to

discuss it anymore..."

"I've been told what I can do

and what I can't."

"Yeah."

"And..."

"Who by?"

"Joe."

"Okay."

"And...I am going to abide by

it. The question come up

Allwin:

David:

Allwin:

David:

104

whether he said something about

me not wanting to cooperate

an e thi ue to the

circ : bab

t. don' this

ught Ww

on't ught to b

handled in the manner that it's

"What do you mean by that?"

"Sir...I just as soon not go

into it any further...please.

Joe has made whatever...I mean

he's got y'all down here for

whatever reason and I'll go

with that."

"Well, I assume that there is

an allegation against me for

misconduct. Is that correct?"

"Right."

Allwin:

David:

Allwin:

David:

Allwin:

David:

Allwin:

David:

Allwin:

David:

Allwin:

David:

105

"Okay and I also assume that

you have gone to your

Lieutenant. Is that correct?"

"Okay."

"Yes or no?"

"Yeah, I have."

"Okay and can I ask what steps

you've taken since?"

“Uh...no sir, please."

"I'm not asking. I'm demanding

answers."

“And then I'm not going to give

one."

"David, this is...let me give

you some advise, okay? I know

what the allegations are."

"I_ know you know."

"And I'm no fool."

"Uh...okay."

Allwin:

David:

Allwin:

David:

Allwin:

David:

Allwin:

106

"The reason that Mr. McCauley

is here is to see to it...that

the investigation is handled

properly."

"Okay."

"We need to get it squared away

So we can stop all this crap,

all this innuendo, and all this

other stuff. If it's not

innuendo then we'll prove that

it's not innuendo...okay?

"Well."

"If I'm guilty of misconduct,

Mr. McCarley is here to see to

it that something takes place."

"Okay, this not going to be

accomplished tonight though."

"We need to get started

tonight."

me mm ne ae a a RR RN

David:

Allwin:

David:

Allwin:

David:

Allwin:

David:

107

"Uh..evidently...inadvertently,

I started it."

"Yes, you have...so we need to

go ahead and get it taken care

of (unclear)."

"I went to Joe for advise,

not...not to accuse you of

anything, but there were some

allegations that have been

made...uh...I've been made

aware of it. Uh..."

"Who made the allegation?"

"Seah, Wh... *

"You understand that..."

"You know..it, you know as much

as the allegation then you know

a th ames involve except

for one of which I can't and

won't indulge. Uh..but she did

Alliwin:

David:

Allwin:

David:

Allwin:

David:

Allwin:

David:

Allwin:

Kirk:

David:

108

not accuse you of anything so

her's is immaterial anyway.

"Okay...SO somebody has

actually made an allegation."

",.uh..to me they have..yes."

"Okay."

"To me they have and publicly."

"Publicly where?"

"In a bar.®

"In a bar?"

"Yes."

"Okay. *

"One of the allegations, David,

I'm familiar with..it stems to

some that we discussed before

..- before we hired the Chief.

That..."

"No, no, no, this is something

ew. t thing to do with

Kirk:

David:

Kirk:

David:

Kirk:

David:

Kirk:

109

"One of them does, uh..having

to do with his time in

Beaumont."

"Okay. Well, Joe cleared..I

mean there was rumors running

around that..uh..the Chief had

been caught dirty

there..uh..and somehow managed

to escape. Uh..that rumors.

You know, yesterday..."

"You are aware that that's

erroneous."

"Right."

“and..*

“as of yesterday..."

"And I hope you are doing your

part to insure these people

that are making these alle-

gations to assure them those

are false rumors.

David:

Kirk:

David:

110

"I can't say that I've talked

to anybody about it since

yesterday when I found out from

Joe that..there was a lot Joe

told me that I didn't even

know, period. Uh..nobody else

knew."

"That information was in the

newspaper before he was hired."

"Well..uh..with our bout with

the newspaper, I don't read it.

I didn't know any about it. It

just I know the rumors are

there. Uh:.there is a lot of

mistrust in this department.

When I say there's a lot of

mistrust in this department,

I'm looked at as who the hell

has he been talking to because

everybody..in the upper echelon

Kirk:

David:

111

can't seem..to see it..I mean

don't know if we're talking to

two different group of people

or you know it's maybe people

here I don't know about.

Uh..but I'm here to say that

there is a morale problem and

it has a lot to do with you,

Chief."

"Well, is it a morale problem

or is it mistrust?"

"A lot of it's mistrust,

mistrust because. .My personal

opinion is that I'm getting

sick and tired of hearing about

Beaumont. How Beaumont does it

Beaumont does it this way.

That the reason we're doing

this way, because Beaumont done

that way and we're this way for

Kirk:

David:

Kirk:

David:

Kirk:

112

20 years or more. Maybe the

Beaumont way is better. I

don't know but I..that is the

general attitude, if there is

something new that came down

the pike, it's because that's

the way they did it in Beau-

mont. And instead you coming

in and trying to blend with as

you are wanting us to blend

with you.

"Let me say something on that.

Before we hired him, we had a

different administration."

"right .*

"And the morale?"

"Real bad."

"And that's one of the reasons

that we got some of the Police

Department people involved in

David:

Kirk:

David:

113

the committee to pick a new

Chief. And one was a Patrol

Officer and all we can do is go

by what we're hearing from

these individuals. The thing

we heard or that we want

change. Something has got to

happen down there. All we can

do is to assume that's the

voice of the Department

speaking. We heard it in chit-

chat session. You got problems

with the leadership."

"I called you and talked to

you."

"You talked to me..uh..not so

much about the Chief, but about

one of the Sergeants."

"Okay."

114

"Uh..you may not think we

responded, but the thing that

people got to understand (word

unclear) if not going too good

and if not going to be all

hunky doree but I think you're

going to see..if you stick with

it for professicnalism in the

Department. .And..uh..I think we

are talking poor morale, while

people are uncomfortable with

the change and confusing it

with mistrust and don't want

confuse..I can understand poor

morale and we can deal with

that (unclear) but don't let

anybody drag this Department

down because morale is bad and

blame it on mistrust. There's

nothing there to substantiate

David:

Kirk:

David:

Kirk:

David:

115

any mistrust. At least nothing

to satisfactorily appeal to,

you know, the things we've

heard as far as the reasons for

mistrust, there's no foundation

in it. People are talking,

people say this, people say

that, but people are going to

say anything."

"Yes sir, they will but..."

"And, it's the job of people

who wear blue you know, to

stand behind their adminis-

tration. When we've checked

the whole facts out; there's

nothing there, not a thing."

"Not a thing where?"

"In this individual's

bavcaground."

"Okay.*

Kirk:

116

"To..to..prompt anyone's mis-

trust. And we did one of the

most thorough background inves-

tigations we've done on any-

body. We did it on him. There

are no ghosts in the close.

There, there are no gremlins in

the present situation. I think

what you are perceiving is a

different styled of management,

versus the old style, and you

got to change..a change that

was wanted, but you can't have

your cake and eat it, too.

With change there's gonna

come..; there's gonna come some

pain and there's gonna come

some uncomfortable situations

for some people. And be it

right or wrong, you work for a

David:

Sar

person, you work for them, for

God's sake. And you gotta work

together, you gotta support it.

The morale is just gonna sink

lower and lower and lower as

long as those things continue

to...

"Okay, this won't like I said,

supposed to be public know-

ed : t j about

anything in the past. Joe

explained yesterday and cleared

that up, anything about the

past. We're talki about the

egations t mad Ow.

Binns 9 chief } . shief

t a

Kirk:

David:

Kirk:

David:

Kirk:

out."

"That..that's procedure.

That's protocol."

"Uh, okay. Uh, under..alright."

"You, you gotta have

procedures, I mean.."

"That's fine, that's fine."

“And this is the..the man that

you need to go to when you have

a complaint. And that's how..

David:

Chief:

119

how a complaint is lodged. And

it's up to him to investigate."

"T w -.l W °

"That's not true! You can give

your information to Lt. McCray

and to Sgt. Lanning and let

them do the investigation.

That's what you are being told

you can do. You want me to

leave, I'll leave, David.

‘Cause I want this shit stop-

ped! Now, either you cooperate

David:

Chief:

David:

Joe:

David:

120

with these people, or you

don't."

ob unde e cumstances

I just don't see how I can,

Chief."

"And what are the circun-

stances, David? Are you gonna

go out there and do an investi-

gation on your own?"

"Umm..okay, let's don't get me,

. t some se. ou

appointed Joe to this position.

Now w bia j be?"

"If you remember correctly,

David, that position was

posted, and people applied for

it. And we were interviewed...

you make it sound like this was

Moscow or something."

"Well?"

Joe:

David:

Kirk:

121

"Is that not correct? This is

the place for this."

"I'm..I'm not gonna say it was,

because I don't remember but

I'm not gonna say it was but

for sake of argument, I'm gonna

Say it was. Uh, but I also

now that ° or the lack

of a better work, you were a

shoo-in for it. Uh, that was

ce r lor t ou

getting the position. .that you

w e si-

tion."

"So what? I mean, there's a

reason for it, probably. I

mean this guy's had tremendous

performance evaluations all

through a period of years, he's

Joe:

David:

Joe:

David:

Joe:

122

proven himself in the Depart-

ment."

"Not more than an hour ago, you

told me yourself there was no

one else more trusted in this

position."

"Uh, I told you that if when it

come to me, if I was going to

be investigated..uh.."

"If there was a rumor that if

someone was going to be

investigated and they were

guilty, that if Joe did it,

he's gonna find out and that..."

"No, no, no, no..Joe, I said

me, I didn't say everybody

else; cause I don't know about

everybody else."

"Well, in your mind, then..I

was (not understandable).."

David:

Joe:

David:

Rosie:

David:

Rosie:

123

"On me! On me!"

"On you!" —

"Uh, I'm not..and I, and I told

fe) ore right ter that

a : i Cc d

trust you to investigate the

lef. t es th

could trust you to investigate

me."

"Well, let me add a little

something, David. Joe is on

this position. Joe knows when

he gets a complaint, he has to

handle it."

"Uh-huh."

"And regardless of who he's

investigating, he has to be

fair, or else he's in trouble.

If it comes out down the line

that he covered up something,

David:

Joe;

124

well then he's in it, too! I

feel that Joe would be fair

about anything, even with the

Chief. Even though everybody's

saying they're good friends, I

think Joe would be fair. And

once you have put this com-

plaint in here, Joe has to

check it out. Anything he come

up with, and you're not satis-

fied with, you can appeal it.

There's always someone higher

you can go to."

"Joe, yesterday when I came to

you, was it with a complaint?"

"It was with advice and with

the notion that you wii: onan

to start digging into something

to gather these facts to bring

them for me to investigate."

David:

125

"For you to investigate. .I

didn't come there with a formal

complaint. I know who the girl

is, I know her reputation, I

know that she's been arrested

umpteen times for it. I did

talk to here last night. She

denied everything, I've told

you that today..she denied

everything, other than the

party itself..or gathering.

But no dope was involved. She

mentioned another person, I was

gonna go talk to her. If, in

fact, she denied the same

thing, then what else am I

gonna go, where else am I

gonna go? I'm gonna have to

come to you and say Joe, I

Joe:

David:

Joe:

David:

Joe:

126

found this and this and that

and it's..that's it, I can't

.-there's nothing there."

"The problem here, David,

though, is that you are not the

person to investigate internal

problems. That is for my

division, and you were told

that, under those circum-

stances, and you have been to

cooperate with this investi-

gation to it's fullest, which

you have refused to do."

"Correct."

"And that's where we've at now.

"Correct. That's how I stand,

right there."

"You're saying that you're

refusing to cooperate with any

questions that I might ask you

127

with regards to this

investigation.

David: "Any further, yes."

Chief: "David, do you know what this

leaves us to do?"

David: "Uh-huh."

Chief: "How long did you try and get

on this department, David?"

David: "A long time. And, I told

Rosie McCray when I got hired

here, if I did anything to

embarrass this department I'd

leave on my own."

Chief: "Is that what you're

suggesting?"

David: "I don't think I've embarrassed

it yet. (not understandable)"

Chief: "...damage, is it going to be

awful difficult to repair?"

r ae

David:

Chief:

David:

128

"No, sir! I didn't create

anything. I didn't make the

alle ions. I was told about

them."

"Why don't you wanna go help..

let's either clear them up or

not. Let's do something with

then."

"Because a j :

think they will be cleared up

now. I mean I..there's nothing

that can happen right now that

would satisfy me..my mind.. and

I realize that's it's just

mine, uh, that would make me

say, yeah, Allwin Barrows does

not smoke grass. There's

nothing that ..that there's

nothing that could happen now."

Kirk:

David:

Kirk:

David:

Kirk:

David:

Kirk:

David:

129

"Then what you're..then what

you're saying is basically you

cannot at this point, and pro-

bably never under the circun-

stances, work with trust in the

administration here."

"Which is the internal

procedure which is outlined in

the police procedure manual."

"Okay."

“Therefore, can you work here?"

"I've worked here for the last

30 minutes and did my job and

nobody's complained."

"Can you continue to work

here?"

"I don't see why I couldn't."

Kirk:

David:

Kirk:

David:

Kirk:

130

"Even though you don't trust

the people you work for?"

"Uh, there's a cliche that most

cops use.."C.Y.A."..I will dot

every dot..cross every t."

"But what if you create a ir-

reparable impact on the depart-

ment, due to the fact that this

thing lingers in your mind and

you can't work here with trust

in the people you work with.

That doesn't make sense to you,

does it?"

"We j it makes sense to

me t u're °

vestigat erson.. ave

z b ike this in a

group meeting."

"But you know what you're

saying to me tonight is basi-

David:

Kirk:

David:

131

cally, you know, that you want

free rein to go after anybody

you want to go after, and that

you would come to me and say __

you want me to fire Glenn

Brown. That's not my job, it's

the City Council's job."

“I didn't go to Joe and ask him

to fire the Chief, either.

Uh..I don't understand the

parable there."

"I don't understand..I don't

understand your parable because

this is..this is just a proce-

dure. I mean procedures are

outlined in every organization.

Unfortunately, it doesn't work

from the bottom up, it works

from the top down."

"Well..."

Kirk:

David:

132

"You have a procedure, whereby

if you have a problem, to go

through, you just tell your

commanding off..your lieuten-

ant, who then refers your in-

ternal affairs person to inves-

tigate. And if there's ever,

if there's any finding of the

problem, then so be it, but I

think he told you yesterday,

you know, there's not truth to

these allegations."

ww ' _

133

Kirk: "What kind of investigation is

required on things that, you

know, have no, you know, have

no truth."

Rosie: "How can he investigate, David,

when you won't given him any-

thing to investigate? He

doesn't know what you know."

David: . Ww 4 Pe

Rosie: "So how can he go and contact

these people that you were

going to contact unless you

tell him? And once you've put

an allegation down and tell him

that you want to try to find

out about it, how can he do it

if you don't cooperate? you're

gonna have to trust this man

right here. And he can't jeo-

pardize himself by covering up

David:

Joe:

David:

Joe:

David:

134

something. That's the way I

feel about it."

“Joe knows everything that I

know."

"Unfortunately, I don't."

“Unfortunately, you do."

"I don't know when this

occurred, I don't know when you

learned it, I don't know (not

understandable) what we're

going to get into, and we're

going to document this whole

thing. If you refuse to do it,

where are we at?"

"Well, I still don't think that

afraid I'm gonna disagree with

: j an

; ; tial at thi int

And I think that any further

Rosie:

David:

Chief:

David:

Kirk:

David:

135

discussion about it is a waste

of everybodies time that's off

duty at the moment."

"Well, David where do you think

that that leaves you?"

"I..I realize where it leaves

me."

"What is that?"

"You're either gonna say you're

suspended until you come up

with an investigate..err

--Ccooperate or you're fired all

together. I don't know which

it will be, uh..."

"It sounds like to me that's

what you want him to do."

"No, not at all, I want to get

back on the street. The city

doesn't pay me much, but they

Rosie:

David:

Rosie:

Davida:

Rosie:

David:

136

pay me to be out there, not in

here."

"But David, this is a serious

charge."

"Yes, it's extremely serious,

and that's the reason..."

"Once you've made that allega-

tion, you can't just cut it

off."

"I didn't make an allegation, I

went to Joe for advice. Now I

see that that was ond."

"What position does Joe have?

You think he can just pass it

off? He can't just overlook

that. You have made a serious

allegation about the Chief of

Police."

"N ma'am! aven't m an

allegation. Somebody else did."

————————

Rosie:

David:

Rosie:

David:

Rosie:

Kirk:

137

"Well, you relayed to the..to

him."

"For advice."

"I mean, don't you want to

Clear it up?"

"Oh, yeah, yeah."

"Well, why can't you cooperate

with him?"

"From where I sit, David, it

sounds like you want to quit

your job, and you want to

continue this investigation on

your own. That's not gcing to

work. Either you let this

thing just drop right now and

we never hear a thing about it

again, any rumors, allegations,

anything having to do with him

or anybody else in this depart-

ment, and let the (unclear)

David:

Kirk:

David:

Kirk:

138

charge be brought to internal

affairs, which is your proce-

dure, free and clear. And

that's all there is, you have

two choices here. We're not

gonna force you out."

"Well, I'm not quitting."

"Well, we're not gonna allow

insubordinate (unclear) this

department, either. You don't

bite the hand that feeds you."

"Last word is I'm not quitting.

You'll do what you think you

have to."

"So what you're saying is

you're going to continue..we're

going to continue to hear about

this."

David:

Kirk:

Chief:

David:

Chief:

139

"Not from me, you won't. I've

been told I can't do anything

with it."

"But you're going to continue

to..to talk about it with

people (not clear)."

"Let me..let me..let me clear

something up. An investigation

is going to take place."

"Okay."

"Now you can cooperate, or you

don't. Because at this point,

I'm going to see that an inves-

tigation takes place to clear

my name. Because there's four

people in this room have heard

that, plus any number of other

people out on the street that

you have gone for and sought

for advice, and I'm gonna clear

David:

140

my name, Dave. Whether you

cooperate or not. Now I've

listened to you argue with Mr.

McCarley and I've listened to

you argue with her, and it's

coming down to either you're

gonna cooperate right this

minute, or you're gonna give me

that badge. And you can talk

to them for a few minutes,

cause I'm gonna go step out of

this room and you decide."

(sound of door opening or

closing)

"T won't compromise this

badge."

141

Transcribed om the ta ecorded on

August 6, 1990, by David Gillum during

the meeting with Kirk McCarley ("Kirt")

David:

Kirt:

David:

Kirt:

David

Kirt:

David:

"This may or may not be an

, I don't know. (nervous

chuckle) Am I fired?"

"No.*

"I didn't quit."

"You took your badge off when

given the chose of.."

"But given a chose of what

though?"

"Given the chose of letting

this thing drop or resigning

and your exact words were 'I

will not let my integrity be

compromised and my values' or

something like that."

"Yeah, something similar to

that, yeah."

Kirt:

David:

Kirt:

David:

Kirt:

David:

EE

142

"Then you took your badge off,

took your gun off, your holster

and laid it down and later

turned in your things to the

Chief."

"__—«sqwas ordered to do that,

too. Prior to all of that, I

said I wasn't quitting."

"You did say that you weren't

quitting and you also said that

you weren't going to let the

thing drop and let the thing go

through the proper channel."

"Do you know what the proper

channels are by any chance?"

"_____ Internal Affairs."

"With a complaint. Nobody had

made a complaint to Internal

Affairs."

Kirt:

David:

Kirt:

David:

Kirt:

David:

143

"Then the action should drop

now at that point." -

"Noooo, if there is a uuuh..if

it went through Internal Af-

fairs, it should drop, yeah,

but if I am investigating a

citizen or if I am investi-

gating you or somebody else,

just because somebody says lets

make it drop. I can't do that.

I have an oath to uphold."

"I understand that, but this is

a member of the department..."

"That's right."

"your investigating and in that

particular incidence there is

an Internal Affairs procedure

that needs to be followed."

"That's right, if there is a

complaint to be made to Inter-

144

nal Affairs, but there hadn't

been. I went to Joe for advice,

not for a complaint. I wanted

to, if in fact the Chief is

guilty, if in fact the Chief is

innocent, I wanted to make sure

that I was doing the right pro-

cedures in my investigation.

When I had the whatever evi-

dence or lack of evidence con-

sidering Joe knew about it, I

would have given it to hin.

Then he could have taken off

with the investigation and done

whatever Internal Affairs do

with it."

Kirt: "You should have come up to Joe

and said like I have heard

these rumors and I would like a

formal investigation to be done

David:

Kirt:

David:

145

on this particular case and

that is the proper channels."

"Well, that's not what is in

the handbook. And that is not

what is in our code. uh..or..

rules and regulations. I have

never signed any forms saying

that I am making an official

complaint against the Chief. I

have never had anything

notarized."

"Why did you take your badge

off and that sort of thing?"

"Because the comment was made

that..first of all the comment

was made I had to drop it all

together, and I can't do that.

Then another comment was made

that I would cooperate in

Clearing the Chief's name and I

Kirt:

David:

Kirt:

David:

146

can't do that either. I can

cooperate in an investigation,

but I can't cooperate in

'clearing' somebody."

"But that is not your job."

"It is..I think I know what.."

"That's not your job, I mean to

do that we have a particular

procedure. In this particular

case, it is like you suspect

somebody of a felony, you know,

you would take that to the

proper persons to do something

like that."

"When it goes into a report

form, we do. Then that is

exactly the way it is handled.

A patrolman is the initial

contact on most everything, not

everything because the CID gets

147

involved in their own investi-

gations and stuff without us.

What we have done in prelimi-

nary investigation, yes it

does, then it goes in report,

it goes into Lt. Rosie McCray

and then it gets shipped up to

CID for the investigation. I

understand that procedure. The

procedure that I was doing, is

no more than that. It was

still in an investigative type

deal, uh..no report had been

made up, I hadn't officially

come to Joe with anything.

Like I did officially go to

Rosie with reports...in the

line of duty."

Kirt: "You know why we have a

singular body there that is in

David:

Kirt:

David:

148

charge of handling these things

that are very sensitive. The

things which are being discuss-

ed concerned the Police Chief,

by God."

"Great!"

"And keeping him from being

immune..can you imagine the

morale and irreparable damage

that it would do to a depart-

ment when you're saying that

the Chief of Police may be

guilty of all these things?

That's why when you put it in

the hands of one person to make |

sure the whole department isn't

pulled into this."

"Well, the whole department

wasn't into it until Thursday

and then, as a result of mis-

149

management on Joe's part,

everybody got into it. I know

that, in fact,..that the Chief

was at the party. I've got

that much. The day before

Thursday, on Wednesday, when I

went to Joe and told him what I

had or what I had heard and

what I was going to do, he was

in agreement with it. The next

day on Thursday, he called me

into the office. He called me,

now everything has changed.

Kirt, if I was to investigate

you, you are going to know

about it eventually, but before

you can get rid of any evi-

dence, I am going to investi-

gate you and you're not going

Kirt:

David:

Kirt:

David:

Kirt:

David:

150

to know about it. That is

standard and.."

"That is the way it should be."

"___ should have never known

about it, at this point."

"But there was no complaint. I

mean these..."

"It was to me."

"Then why didn't you follow the

complaint?"

"Because I am going to find out

before I file a complaint. I'm

not going to say, Kirt, you

were doing something like sky-

diving without a parachute, I'm

going to investigate first and

okay, I've found out this and

this and this..yeah, now comes

the complaint. You have to

have probable cause."

151

Kirt: "When you talking about a sec-

urity officer, you rule out the

implications of ..that's why

you put it in the hands of this

neutral body which is the IAD

and I know you have some pro-

blems with that, but that is

procedure."

David: "Well, I don't believe Joe is a

neutral body at this point."

Kirt: "That is the procedure!"

David: (inaudible)

Kirt: "And you know why. If you are

on your own doing this. Think

of what position that leaves

you in, as far as your rela-

tionship with your superiors. a”

That is why we have that there.

Do you think since he knows you

were doing this, that he will

Le |

ciliata

David:

Kirt:

David:

152

ever be able to treat you in

the same manner? No, there is

no way. That is why."

"I should hope not, Kirt.

Because the man has threatened

me three times."

"How has he threatened you?"

"For one, somebody had told him

one story that was completely

false and we had a meeting out

in the back parking lot and

with his finger in my face, I

was told never to threaten hin,

I should never threaten him!

One time, right there in his

house that he lives at now in

the back driveway, I had heard

rumors that B. Satchel (sp) and

myself were trying to get his

job. This is what I heard. I

153

was talking to the Chief about

another matter and said, by the

way, if in fact you have heard

these rumors, they are false.

I know of no plans to get rid

of you. I have never heard of

anything like that, but I did

hear this rumor. He got in my

face.. Can you hear outside

this office?"

Kirt: "No. *

David: “Okay, he got in my face and

said no three year slick

motherfucker is going to take

my job. Kirt, did I say that I

was trying to take his job? I

was trying to dispel a rumor

that was completely erroneous.

It is garbage. I don't care

how you look at it, it's

154

garbage. I don't care how bad

or good of an investigation

that you did. That's garbage."

Kirt: "David, I don't want to get

into that because I wasn't

there."

David: "Well, I realize you wasn't,

but I was. When I was told to

cooperate and clear his name or

put my badge on the table, I

had to put my badge on the

table. The badge and the gun

go together. I am not going to

walk out of that building with

a gun and no badge. That's

almost suicide. I left going

to my car to get my stuff out

of it to put in the patrol room

and that particular point, Joe

Lanning caught up with me and

Kirt:

David:

Kirt:

David:

Kirt:

155

demanded my uniform right then.

The gunbelt and my I.D. Tf

somewhat pleaded with him for

the uniform but I did give up

the gunbelt. I was told to

turn it in the next day which

was Friday. I called Rosie and

said, look I'm not sure of what

the deal is here because I

didn't quit."

"What did you do then?"

"I did what I told to do."

"You had two choices."

"But neither one of them meant

termination."

"Either just let the thing drop

or you could have a formal com-

plaint procedure you could go

through and you weren't comfor-

table with your department pro-

David:

Kirt:

156

cedure and I can't deal..I mean

we can't change that, that is

your procedure. We can't inm-

plement a new procedure every

time we have somebody who does-

n't like the old one. I mean..."

"Nobody said I didn't like the

old one...y'all, as far as I

see,..strictly me seeing ABC,

y'all are admitting B, but want

me to go straight to C which is

Internal Affairs. Well, never

mind, my question is am I en-

ployed by the Kerrville Police

Department?"

(phone rings) "Excuse me. This

is Kirt. Not at the present.

Your welcome, goodbye.

(SPEAKING TO DAVID) No."

David:

Kirt:

David:

Kirt:

David:

Kirt:

157

"Well, Ookay...I suppose I'll

have to wait until the regular

payday to get paid or..."

"Well, what we will have to do

is calculate all of the time

and that sort of thing."

"I've got vacation time and

comp time coming."

"Yeah, yeah, uh..it'll have to

be on the regular payday. It

is the way our computer system

is set up here."

"Alright then."

"Sorry, David."

158

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

DAVID GILLUM

V.

THE CITY OF KERRVILLE,

TEXAS, GLENN D. BROWN,

in his official capacity

as City Manager and in

his individual capacity,

LOUIS A. BARROW, JR.

in his official capacity

as Police Chief, and in

his individual capacity,

KIRK MCCARLEY, in his

official capacity

as Personnel Director,

and in his individual

capacity

CIVIL ACTION

NO.

SA-91-CA-0090

MAAAAAAAAAAAAMAAAAAMN

AFFIDAVIT OF DAVID GILLUM IN SUPPORT OF

PLAINTIFF'S RESPONSE TO MOTION FOR

SUMMARY JUDGMENT

THE STATE OF TEXAS §

COUNTY OF KENDALL §

Before me, the undersigned

authority, personally appeared DAVID

GILLUM, who, after being by me first duly

159

sworn, stated upon his oath as follows:

1. “My name is DAVID GILLUM. I am

over the age of eighteen (18) years and

competent to make this Affidavit. I am

not disqualified by law from making this

Affidavit. I know the facts stated in

this Affidavit to be true and correct of

my own personal knowledge.

2. I was formerly employed by The

City of Kerrville, Texas ("Kerrville")

for approximately three (3) years as a

patrolman in the Kerrville Police

Department. I was terminated from

employment on August 2, 1990 at a meeting

at the Kerrville Police Department

attended by Allwin Barrow, Jr., the Chief

of Police, Kirk McCarley, the Personnel

Director of Kerrville, Joe Lanning, Chief

of the Internal Affairs Division of the

This text is long and has been trimmed here. Open the source document for the complete record.