Public-works employee’s complaint steamrolled

Friday, June 17, 2011

The former acting director of the Beaver Dam, Wis., Public Works Department could not establish a First Amendment retaliation claim against city officials who allegedly refused to promote him to full director after he publicly criticized them, the 7th U.S. Circuit Court of Appeals has ruled.

The appellate court decision shows how difficult it is for public employees to maintain free-speech lawsuits since the Supreme Court’s decision in Garcetti v. Ceballos (2006), in which the high court ruled that public employees have no free-speech rights for official job-duty speech.

Daniel J. Wackett worked for Beaver Dam in its Public Works Department from 1972 until his retirement in 2009. In 1990, he was promoted to public works supervisor, in charge of evaluating and recommending proposed equipment purchases. One of these was a front-end-loader tractor.

In February 2003, Wackett attended a meeting of the Board of Public Works in which the board considered bids from three companies. Wackett recommended the board accept the bid for the John Deere tractor. Instead, the board initially voted to accept the bid by Caterpillar, even though it was $10,000 higher than John Deere’s. The board  affirmed its vote later that month.

Wackett claimed that during and after the meeting he publicly spoke out against the decision. He said he expressed his concern that the board might have been influenced by personal relationships with Caterpillar sales representatives and offers of a free trip to Chicago to visit a Caterpillar plant. Wackett claimed he stated his views to a local businessman named Jeff Schmidt, who later wrote an op-ed letter criticizing the board’s vote for the higher bid.

After Schmidt’s letter appeared, many citizens called city officials and complained about the board’s accepting the higher bid. In March 2003 the Common Council voted to reject the board’s recommendation. Later the board changed its mind and voted to buy the John Deere tractor after all.

In July 2003 Wackett’s boss – who also opposed the Caterpillar bid – retired and Wackett temporarily assumed the role of acting director of public works. However, the city never promoted Wackett to full director. A board member allegedly declared there was “no way that Wackett will get the job.” Even after an interview committee recommended that Wackett be promoted to director, the board refused.

Wackett ended up serving as acting director for more than four years with no added pay even as he continued to hold down his original supervisory position. After retiring in February 2009, he sued the city and four board members, alleging retaliation.

A federal district court rejected his claim, reasoning that he had not spoken out a matter of public concern and, even if he had, the defendants were not aware of his protected speech.

On appeal, a three-judge panel of the 7th Circuit unanimously affirmed the lower court in its June 13 opinion in Wackett v. City of Beaver Dam. The appeals court determined that Wackett’s comments against the Caterpillar bid were unprotected employee speech within the meaning of Garcetti.

Although Wackett argued that he had made some of his comments and complaints as a citizen and a taxpaper, including his remarks to Schmidt, the panel was not persuaded. “Even if repeating statements made earlier as part of an employee’s official duties were enough to trigger First Amendment protection, Wackett’s theory cannot stand because there is no evidence that the defendants knew of Wackett’s additional ‘unofficial’ speech.”

The panel also said Schmidt’s letter seemed to show that he was relying on Wackett’s statements during the official board meeting, not in unofficial, private conversations.

Wackett further argued that there was no other rational explanation for the consistent refusal of the city to promote him other than retaliation. The panel referred to this argument as “circular,” writing: “Wackett is essentially maintaining that the defendants must have known about his protected speech because they retaliated against him. That conclusory assumption does not suffice.”

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