See for this post and this one for background.
In order for a plaintiff to establish a First Amendment retaliation claim, the plaintiff must prove that:
(1) He engaged in constitutionally protected speech because he spoke as a citizen on a matter of public concern; Read More...
(2) He suffered an adverse employment action; and
(3) The speech was a 'motivating factor' in the adverse employment decision.
A plaintiff must also show that each defendant "was personally involved . . . in the alleged constitutional deprivations." If a plaintiff can establish the requisite burden, a defendant employer may still prevail by showing by a preponderance of the evidence that either "(1) the defendant would have taken the same adverse action against the plaintiff regardless of the plaintiff's speech; or (2) the plaintiff's expression was likely to disrupt the defendant's activities and that the harm caused by the disruption outweighs the value of the plaintiff's expression."
In a previous Motion for Summary Judgment, the issues of public concern, adverse employment action, causal connection, and Defendants' defenses had been addressed. The Honorable Gary L. Sharpe, United States District Judge, upon hearing oral argument from the parties, found that: 1) Plaintiff's speech qualifies as an issue of public concern; 2) the failure to reappoint Plaintiff based on protected speech constitutes an adverse employment action; 3) an issue of fact exists as to whether there was a causal connection between the protected First Amendment activity and adverse employment action; and 4) an issue of fact exists as to the reason Defendants did not reappoint Plaintiff.
The court then goes into a long discussion on whether or not Jackson was speaking in his official capacity (such that his First Amendment protections are curtailed) or as a private citizen. They decide that from 1995-1999, Jackson is acting in his official capacity. However, after that time period, things are different.
At the very end of December 1999 into the early months of the following year and so forth, certain events took place that cast doubt as to whether Plaintiff was still speaking pursuant to his official duties or whether his role transmuted to that of a private citizen speaking on a matter of public concern. On December 29, 1999, an article was published entitled "Clock ticking on tax bills" (TIMES UNION, Dec. 29, 1999). This article detailed the problems county and town officials were having in getting property tax bills prepared on time. Plaintiff was quoted as saying "it's going to take something of a 'Miracle on Seventh Avenue' to get everything done by year's end." Plaintiff attributed the delay to a number of factors, including switching to an outside contractor for computerized tax roll maintenance and bill preparation work. The article further noted that if the tax bills were not mailed on time, property owners would have less time to pay their bills before penalties would accrue.
On January 7, 2000, an article in the Troy Record was released which stated that "in an unprecedented error," Rensselaer County sent out their tax bills without including late penalties due to the County (JamieGilkey, Tax Bills Fail to Include Late Charges, THE TROY RECORD, Jan. 7, 2000.) The article stated that Zwack and his staff were investigating whether the Bureau of Tax Services or the private company hired to print the bills were responsible for the mistakes. The same day, the Times Union printed an article entitled "Halt reorganization, top tax official urges," which focused on Plaintiff and other town assessors asking the Rensselaer County Legislature to "scrap . . . the reorganization of the Real Property Tax Service," which they claimed in some form resulted in the delayed distribution of local tax bills ( Cathy Woodruff, Halt Reorganization, Top Tax Official Urges, TIMES UNION, Jan. 7, 2000.) The article referenced a memorandum sent to Swartz by Plaintiff in which Plaintiff noted the tax mappers were moved into BRIS and that the County was violating the Real Property Tax Law. The article further noted that Plaintiff referred to Zwack's plan "to trade tax services office space with . . . the county Personnel office . . . as inappropriate for his operation." Within the same article, Zwack attacked the "expertise" of county department heads in assessing where the tax mapping function and personnel should be located. Other assessors and Griffen weighed in on the subject as well. The same day these articles were published, on January 7, 2000, Plaintiff wrote a letter to Zwack notifying him that he became aware of the problems with the tax bills and that he was investigating the matter.
On January 8, 2000, the Times Union printed an article regarding "flawed" tax bills and, though there was no quote from Plaintiff, Zwack was quoted as saying that he believed the tax bill problems were the fault of Plaintiff "failing to accurately calculate the amount due on each bill. " (Cathy Woodruff, County Issues Flawed Tax Bills, TIMES UNION, Jan. 8, 2000.) Subsequently, on January 11, 2000, another article in the Troy Record stated the problems with the tax bills continued and Plaintiff was being blamed for the mistakes with the bills (Jamie D. Gilkey, Tax Blunder Mounts, THE TROY RECORD, Jan. 11, 2000.) The article cited to a confidential letter sent by Plaintiff to Zwack on January 7, 2000, regarding the change in procedures with BRIS.
Then on January 12, 2000, the Times Union printed an article regarding the previously inadequate tax bills that were sent out. (Cathy Woodruff, Delinquent Tax Re-Billing Approved, TIMES UNION, Jan. 12, 2000). The article discussed supplemental tax bills to be sent out to property owners and that Plaintiff told legislators he was in contact with the private company issuing the bills and would find out how quickly they could be printed. Citing to a memo written by Plaintiff, the article stated Plaintiff regretted that bills were not double checked to which Zwack was quoted in stating that all these problems were "clear evidence that Jackson is to blame for the error." A second article also appeared in the Times Union the same day wherein Zwack stated that because of the error on the tax bills, there would be no change in Local Law. No. 6. (Cathy Woodruff, Director Erred, Zwack Asserts, TIMES UNION, Jan. 12, 2000). Zwack again placed blame on Plaintiff stating that the mistakes on the tax bills were due to the failure of the Director. On January 17, 2000, a scathing editorial was published regarding Zwack's behavior as County Executive and how Zwack "characteristically blamed a career civil servant named Jeff Jackson" for problems occurring in the County. (Fred LeBrun, Editorial, Inspector Zwack's Cuban Caper, TIMES UNION, Jan. 17, 2000). Subsequently, on January 25, 2000, two articles were printed in the Times Union. (Cathy Woodruff, Towns Want Own Mapping System, TIMES UNION, Jan. 25, 2000 & Cathy Woodruff, Assessors Group Backs Tax Services Supervision, TIMES UNION, Jan. 25, 2000). The first article was from the assessors point of view regarding the computer network maintained by Rensselaer County, Towns Want Own Mapping System. Plaintiff responded to the assessors by stating "right now, we're trying to reassemble and repair something that we can feel good about again." He went on to state that he was not giving up on the network, but that the network was "only as good as the people who operate and maintain it." The second article pertained to the RCAA's endorsed proposal to return the tax mappers back to the office of Plaintiff and explained how the RCAA hoped the proposal would be approved by the County Legislature, Assessors Group Backs Tax Services Supervision. On the same day, January 25, 2000, Plaintiff wrote a letter to Chairman Swartz regarding some of the issues described within the articles, including the transfer of tax mappers, the legality of Local Law No. 6, computer problems at BRIS, and Plaintiff's reputation.
On January 26, 2000, an editorial was published in the Times Union regarding the RCAA's distress over the removal of the tax mappers from Plaintiff's office. (Cathy Woodruff, Editorial, Assessors Rate a Taxing Lesson in Politics of the County, TIMES UNION, Jan. 26, 2000). The editorial detailed how the assessors began "pleading publicly" for the return of the tax mappers to Plaintiff's office after Zwack blamed Plaintiff for the tax bill errors. One of the assessors stated in the editorial that he expressed to Plaintiff that Zwack "made him the target and Zwack doesn't understand that Plaintiff is expressing the assessors' concerns." Thereafter, on February 4, 2000, another newspaper printed an article stating that Republicans in the Rensselaer County Legislature were asking Zwack to return the tax mappers back to Plaintiff's office (Jamie D. Gilkey, Lawmakers Address Tax Issue, THE TROY RECORD, Feb. 4, 2000). The article described how Zwack has "publicly questioned whether Jackson was performing his duties properly when more than 3,000 erroneous tax bills were sent to property owners." It also noted that Zwack's administration had attempted to forward a resolution specifically holding Plaintiff's office responsible for the errors but that the measure was ultimately amended to "delete Jackson's name" before being approved by the Legislature.
Kathy Jimino became County Executive in May 2001. A short time later, Plaintiff sent two letters to Jimino on July 19 and August 21, 2001, touching upon issues previously discussed by the press, mainly the tax mapping functions as well as Plaintiff's qualifications for his position. Then, approximately three months past the date Plaintiff's term as Director expired, the Troy Record published an article stating that Plaintiff was not expected to be reappointed as Director (Jamie D. Gilkey, Jackson is Being Dropped as Head of the Department of Tax Services, THE TROY RECORD, Dec. 2001). However, Jimino was quoted as saying "we haven't decided on reappointment yet . . . and he still serves in that position until a decision is made on it." Notwithstanding, the article went on to describe the "public spat" between Plaintiff and former County Executive Zwack and the extensive press coverage relating to the battle over the tax mappers.
The court found:
Based upon a review of this record we are left with too many questions* and thus there is a presence of a material issue of fact: Was Jackson drawn into the public debate on the tax bills in his official capacity or as a knowledgeable private citizen? Was he contributing to the civic discourse on this major public concern for Rensselaer County outside the scope of his official obligations? When Jackson's competence and character was being publicly impugned by Zwack, didn't he have the right to defend himself as a private citizen and publicly at that? In some situations, as here especially after 1999, the delineation is not truly black or white. As so eloquently noted in Garcetti, "we . . . have no occasion to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate . . . and we reject . . . that employers can restrict employees' rights by creating excessively broad job descriptions."
The Defendant also argued Qualified Immunity.
Defendant Jimino asserts that whether or not a constitutional violation occurred, she would be entitled to qualified immunity. Qualified immunity will shield "government officials from liability for civil damages when their conduct does not violate 'clearly established statutory or constitutional rights of which a reasonable person would have known.'
On the issues present in this case, at the times the relevant acts were committed, it was clearly established that while "a governmental entity enjoys significantly greater latitude when it acts in its capacity as employer . . ., the First Amendment nonetheless prohibits it from punishing its employees in retaliation for the content of their speech on matters of public importance." An "employee's right to be free from such retaliation has been clearly established since at least 1968."
So, where are we? The County failed to prove they did not violate Mr. Jackson's First Amendment Rights, therefore a Jury can decide the issue. Only, a jury will not decide the issue because the County folded like a cheap tent.
The County moved to reargue but that was denied in April. Which, of course, must be Mirch's "updated facts." So, there were no updated facts, only a Hail Mary that failed. So, in order to avoid having Jimino and Zwack placed under oath, the County settled the matter.
* We know what you mean