Federal appeals panel sides with former public safety officers in retaliation claim

Monday, April 24, 2000

Two former public safety officers in Des Peres, Mo., had a constitutional
right to reveal potentially illegal wiretapping in their workplace, a federal
appeals court panel has ruled.

The former head of the Department of Public Safety, Ronald Martin, fired R.
Scott Sexton and Kris Kistler after they went public with the fact that a
private telephone line in the DPS building was being tapped.

Sexton and Kistler went public with the allegations on Oct. 22, 1995. Kistler
was fired on Oct. 30, and Sexton was terminated in December.

The former officers then sued Martin and the city in federal court,
contending that they were fired in retaliation for the exercise of their First
Amendment free-speech rights.

Martin contended that he was entitled to qualified immunity because the
plaintiffs’ rights were not clearly established. Defendants in civil rights
cases can claim qualified immunity if their conduct does not violate a clearly
established constitutional right that a reasonable person would have known.

In January 1999, U.S. District Judge Lawrence Davis rejected Martin’s
qualified immunity defense. Martin appealed to the 8th U.S. Circuit Court of
Appeals. On April 19, a three-judge panel of the 8th Circuit agreed with the
lower court, finding that Sexton and Kistler had a constitutional right to speak
out on their allegations.

The 8th Circuit panel determined in Sexton v. Martin that the
plaintiffs “properly alleged a violation of a constitutional right.” The next
step, according to the panel, was whether the First Amendment protected the
speech in question.

Public employees must show that their speech was a matter of public concern
and that their free-speech interests outweigh employers’ interests in an
efficient workplace.

The panel cited a long line of cases establishing that revealing public
abuses is a matter of public concern. “In examining our own case law, as well as
that of other circuits, we conclude that at the time the plaintiffs were
terminated, the law was clearly established that the disclosure of potential
illegal conduct of public officials was a matter of public concern,” the panel

Martin contended that the plaintiff’s speech should not have been protected
because it led to a morale breakdown in the department. However, the appeals
panel wrote that “a simple assertion by the employer that contested speech
affected morale, without supporting evidence, is not enough to support a grant
of qualified immunity.”

The appeals panel also noted that the closer the plaintiffs’ speech reflects
on matters of public concern, the more evidence the employer must show that the
speech was disruptive.

Revealing misconduct by public officials rests on the “highest rung” of First
Amendment protection, the panel wrote. “For this reason, we find the balance
weighs heavily in favor of plaintiffs’ protected speech.”

Martin then argued that the reasons that he discharged the plaintiffs had
nothing to do with their allegations. However, the appeals court panel wrote:
“there is sufficient evidence for a reasonable juror to conclude that Sexton and
Kistler were discharged for their disclosure of the wiretap on the private line
and not for the reasons stated by Martin.”

Gregory Rich, attorney for the plaintiffs, said his clients were fired for
speaking out on a “matter of extreme public importance.”

“We argued and the court recognized that where First Amendment interests are
of extreme importance, employers must come forward with evidence of more than
minor disruption to justify termination,” he said.

The attorney for Martin was out of the office and unavailable for comment.