Free Trial Brief - District Court of Arizona - Arizona

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RICHARD J. HARRIS LAW OFFICES, P.C .
4445 E. HOLMES AVE., SUITE 106 MESA, AZ 85206 (480) 854-3500 [email protected]

Richard J. Harris ­ #013859 Attorney for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Matthew Shaffer, Plaintiff, v. CCEC et al. Defendants. INTRODUCTION: On August 23, 2005 the court ruled (correctly) that there is a question of fact as to whether Shaffer was a policy-maker (he contends he was not). However, this fact issue is moot because the policy-maker defense does not apply to Shaffer's whistleblower claim. Shaffer urges the court to rule that as a matter of law, the policy-maker doctrine does not apply in this case. ISSUE: At issue are two competing interests under the 1st Amendment: (1) the strong public policy in favor of reporting government misconduct ­ whistle-blowing;1 and (2) the legitimate need for public employers to have loyalty among its policy-makers. These principles are harmonized by recognizing that a public employer "does not have a legitimate interest in covering up mismanagement or corruption and cannot justify retaliation against whistleblowers as a legitimate means of avoiding the disruption that necessarily accompanies such exposure." Ceballos v. Garcetti, 361 F.3d 1168 ¶14 (9 th Cir. 2004). THE DOCTRINE: The policy-maker doctrine allows an elected employer to terminate CV03 2344 PHX FJM PLAINTIFF'S BRIEF RE: POLICY-MAKER DOCTRINE DOES NOT APPLY TO WHISTLEBLOWERS

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Such speech "about the operation of [the] government merits the highest degree of first amendment protection." Coszalter v. City of Salem, 320 F.3d 968, 973-974 (9th Cir. 2003).

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policy-makers and confidential employees for their party affiliation or policy opposition if that elected party can show that political considerations are appropriate requirements for effective performance of the job. Fazio v. San Francisco, 125 F.3d 1328 (9 th Cir. 1997). The doctrine does not apply to non-political, whistleblowing cases. ARGUMENT: "Subject to the Pickering balancing test, First Amendment protections are available to public employees who suffer retaliation for whistleblowing . . . ." Ceballos, supra. The policy-maker defense does not apply to whistleblowing because speech that includes allegations of wrongdoing and abuse of power involve matters of inherent public concern and the burden on the employer in demonstrating that its interests outweigh the First Amendment interest of the employee is correspondingly onerous. Voigt v. Savell, 70 F.3d 1552, 1562 (9th Cir. 1995). An employer cannot merely allege the speaker is a policymaker and thereby obtain license to retaliate or silence the exposure of wrongdoing. The policy-maker doctrine addresses the second part of the Pickering balancing test: it goes to the state's interest in avoiding disruption. "[T]he State's interest in avoiding disruption is magnified when the employee asserting the right serves in a `confidential, policymaking, or public contact role.'" Rankin v. McPherson, 483 U.S. 378, 390-91 (1987)(Cited in Moran v. Washington, 147 F.3d 839 (9th Cir. 1998)). However, even the magnified concern for the state employer's interest does not eclipse the paramount protection for whistleblowing under the First Amendment. Every court that has directly addressed whether the policy-maker defense applies to whistleblower cases has held that it does not. At least five circuits including the 1st, 4 th , 6 th , 7 th and 10 th have expressly ruled on this issue.2 No circuit has ruled that policy-makers can
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Flynn v. City of Boston, 140 F.3d 42 (1st Cir. 1998)("[Policy-maker defense] does not mean that anything goes for policy-related positions: this would be a different case if an executive were fired for reporting a crime or fraud . . . ."); O'Connor v. Steeves, 994 F.2d 905 (1st Cir. 1993) ("Policymaker" defense denied: high ranking official protected in whistleblowing); McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998)(excellent discussion of whistleblower protection for policy-maker); Marshall v. Porter County Plan Com'n, 32 F.3d 1215 (7th Cir. 1994)(employees do not lose First Amendment right to whistle-

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be retaliated against for whistle-blowing. The 9 th Circuit, recognizes the policy-makers defense, but has never applied it to deny a whistleblower claim. Rather, the 9th Circuit has consistently upheld whistleblower

retaliation claims even where the claimants were confidential or policy making employees. Perhaps the best example of this is in Ceballos, supra. Although Mr. Ceballos was a Deputy District Attorney, the first amendment protected his whistle-blowing. See also, Nunez v. Davis, 169 F.3d 1222, 1228 (9 th Cir. 1999)(Judge violated his Court Administrator's first amendment rights ­ retaliating for her opposition to his improper patronage); Thomas v. City of Beaverton, 379 F.3d 802 (9 th Cir. 2004)(Judge violated his Court Administrator's first amendment rights ­ retaliating for her opposition to his discrimination). DEFENDANTS' ERR: Defendants errantly rely on a case which did not involve whistleblowing. Bates v. Hunt, 3 F.3d 374 (11th Cir. 1993). Indeed Bates expressly distinguished itself from a whistleblower case. See Id at 377 n.5. Bates did not even involve a matter of great public concern. See Id at 377 n.5 (the speech in question "mainly was a dispute between one employee and his employer about internal office matters."). Even in the 11 th Circuit, courts addressing policy makers/confidential employees still rest their analysis on the Pickering balancing test. Shahar v. Bowers, 114 F.3d 1097 (11 th Cir. 1997). SUBM ITTED this September 7, 2005. R ICHARD J. H ARRIS L AW O FFICES, P.C. By: s/Richard J. Harris Richard J. Harris 4445 E. Holmes Ave., Suite 106 Mesa, AZ 85206 /// ///

blowing merely because they are confidential assistants/policy-makers); Myers v. Hasara, 226 F.3d 821 (7th Cir. 2000)(policymaker employee had a clearly established 1st Amd. right to report City's wrongdoing); Dirrane v. Brookline P.D., 315 F.3d 65 (1st Cir. 2002).

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Electronically transmitted via the U.S. District Court's Electronic Case Filing System this September 7, 2005 and to: Jay Zweig/Melissa Berrens Gallagher & Kennedy 2575 E. Camelback Rd. Phoenix, AZ 85016-9225 Attorney for Defendants s/Richard J. Harris

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