Chuck R. Patteson v. Ray A.C. Johnson, State Auditor of Public Accounts for the State of Nebraska, in His Official Capacity, and Individually

PATTESON, Appellant, R. Chuck

Ray JOHNSON, A.C. State Auditor of

Public Accounts of Ne- State

braska, capacity, in his official and indi-

vidually, Appellee.

No. 82-2125.

United of Appeals, States Court

Eighth Circuit.

Submitted Feb. 1983.

Decided Nov. Gen., M. Douglas, Atty. (GAO Standards), and started issuing Paul L. Sharon dards Neb., Lincoln, Atty. Gen., Asst. Lindgren, addition, with audit. opinions every for appellee. developed Johnson his own internal audit- ing standards. Johnson instructed his staff of Perry, Perry, B. Gessford Wit- James follow all of these standards.2 P.C., Gessford, thoff, Haase Guthery, & Neb., Lincoln, appellant. 18, 1980, the Auditor’s September On Of- of operations fice issued audit on the the LAY, BRIGHT Judge, Chief Before Office to 1980. Governor’s from 1977 The ROSS, Judges. Circuit section, did not contain an opinion audit with comply reason the for this failed BRIGHT, Judge. Circuit Standards, Standards, the GAO or CPA Patteson, Audi- Deputy R. former Chuck Johnson’s own standards.3 Several months Public tor the Nebraska of of Office later, story headlined, a March Accounts, appeals from the district court’s1 of Governor’s Lacks Usual “Audit Office dismissing rights civil action judgment his Endorsements,” Sunday the Lincoln Journal Johnson, the against Ray defendant A.C. published asserting an article that and Star Auditor Accounts. Nebraska of Public State departed recently adopt- the audit from the posi- from his discharged Johnson Patteson article accounting ed standards. The noted and Patte- Deputy tion as the State Auditor issues that the audit “fails to discuss discharge son suit the vio- brought claiming embarrassment to Governor potential rights process his constitutional of due lated despite Thone the fact that John- Charles speech. also raised and free Patteson them during son’s staff members raised claims under Nebraska law. The district The noted their audit.” article also court denied all of Patteson’s claims. We Republicans. Thone and Johnson are both affirm the court’s on the due judgment Patteson, Republi- time a who this claim, but vacate the on judgment Treasurer, candidate for State declined can the amendment and his similar first claim press. the comment to claim under Nebraska law. later, Johnson, days Patteson and Four I. Background. accountant, public who also was certified accountant, Patteson, public a certified a state committee hearing attended senate working in the Audi- began Nebraska State proposed legislation would testify following year in 1975. tor’s Office The the to be a certified require State Auditor Au- promoted Deputy Johnson Patteson to appeared at accountant. Patteson Deputy ranks next ditor. Auditor legisla- the hearing at the invitation of Auditor and in his absence State Society tive committee the Nebraska place. act Accountants, which Public Certified legislation. hearing As the supporting in 1978 or Auditor’s Sometime that the sen- apparent it became direction, proceeded, Office, began Johnson’s fol- under going were audit inquire ators the American of Certified lowing Institute (Governor’s Audit). the Governor’s Office Accepted Generally Public Accountants’ hearing, left the but (CPA Standards). point The At this Johnson Auditing Standards leave, and in ask fact following also did not Patteson to began Auditor’s Office him instructions. Accounting Auditing give any General Office’s Stan- did not Urbom, trial, had Johnson this been 1. Chief 3. At testified The Honorable Warren K. opinion without an since Judge, the first audit issued Dis- United States District for the adopted new standards two office had of Nebraska. trict years nor the audit earlier. Neither Patteson audit, although signed supervisor both cus- his staff failure to follow Johnson told addition, tomarily did the audit not did so. subject would them to disci- these standards Audit, signed had not Patte- Governor’s discharge, in the it denied re- nevertheless stated, son the audit did not my opinion “In lief, first concluding that the amendment’s disclose it needed to disclose in everything protections did not extend to Patteson’s order it.” After that Patte- for me to speech. The re- summarily district court son to avoided direct answers Senator jected claims, law Patteson’s state observ- questions pressed Chambers’ for addi- ing that the state reach of the claims did tional the audit. information about not beyond extend the federal claims. senators,

At the several urging of Accountancy

Nebraska II. State Board Discussion. (State Board) the audit of the considered A. Due Process. Office, and, 18, Governor’s at its March life, deprived Individuals liberty 1981 the matter meeting, referred to its or entitled property by proce a state are to Ethics and Enforcement Standards Com- protections process dural under the due investigation. mittee for an The Commit- clause of the fourteenth amendment. tee, however, its delayed investigation, and Roth, 564,568, Board of 408 Regents v. U.S. requested Attorney General issue an 2701, 2704, 92 (1972). 33 L.Ed.2d 548 opinion outlining scope of the State In only this case we are concerned with an over jurisdiction Board’s the matter. On alleged deprivation property. In 12, Roth June Attorney General issued opinion an Court stated stating that the State Board had jurisdiction no over matter. That same benefit, have a in a property interest [t]o afternoon terminated Johnson person have clearly must more than an Thereafter, employment. Patteson filed abstract for it. need or desire He must for and unsuccessfully against ran Johnson have more expectation than a unilateral for the position of Auditor. State instead, must, of it. He legiti- * * * mate claim of entitlement to it. Alleging claims under U.S.C. §§ a purpose of the constitutional right to brought suit claiming Patteson a hearing provide opportunity for a his termination violated his fourteenth person to claims. vindicate those at [Id. procedural process amendment due rights 577, 92 S.Ct. at 2709.] and his first free speech rights. amendment He legitimate also claimed that his Unless Patteson establishes a termination violat- ed claim of continued employ- state law. The district court entitlement to denied ment, protections his claim procedural Patteson’s due claim on the process ground that Patteson before dismissal must fail. “legiti- had established no mate claim of entitlement” to continued a property claims interest employment. The district court noted that in his employment by reason unwritten statute, rule, no written or regulation customs, policies, understandings granted a right to continued employment existed the Auditor’s Office. deter for addition, Deputy Auditor. the mining whether these constitute a practices court ruled that custom or practice in the “legitimate claim of entitlement” contin Auditor’s Office was insufficient to vest employment, properly ued the district court any property Patteson’s contin- looked to deciding Nebraska law. Without ued employment. government employees generally whether

Turning to right employ Patteson’s first have a to continued property amendment claim, the practice, ment or court found “that a ter- virtue of custom (1983); Hughes or 75 L.Ed.2d 708 that no custom concluded district court (8th Whitmer, Cir.1983). 714 F.2d 1407 created a “sufficient stoutness” practice of employment in Patteson’s right property Pickering principles Applying For the reasons stated Auditor. Deputy ease, the trial court should have bal this we affirm opinion, district court’s ensuring anced the state’s interest claim. Patteson’s due denial of operation of the Auditor’s Office efficient citizen,

against Patteson’s interest as a cer accountant, tified and state official Speech. B. Free truthfully testifying pending legis that his first Patteson also contends Chambers’ responding lation and Senator He ar- were violated. rights amendment Audit. questions concerning the Governor’s found as a fac- and the district court gues, court, however, only considered The district matter, he was fired in retaliation tual interest, thus, incorrectly the state’s legisla- before the testifying truthfully test. Pickering balancing the applied tive committee. stated as to Patteson’s The district court public terminate A state cannot testimony: their first amend exercising for employees testimony plaintiff In that the made it v. Board of rights. Pickering ment See he the audit “did not thought known that 563, 574, 1731, Education, 88 391 S.Ct. U.S. it needed to disclose everything disclose (1968); Keyishian v. 20 L.Ed.2d 811 sign for to it.” Later in in order [him] 87 385 Regents, Board U.S. literature, plaintiff when the campaign 675, 684-85, (1967). 629 17 L.Ed.2d S.Ct. running against was Nevertheless, do not relin employees while Accounts, Public the office of Auditor of on issues of right speak to out quish their that he had “refused to he said public enter ser public they concern when disagree- inaccurate audit.” The shoddy, the vice, subject be rights may those the and defend- plaintiff ment between the as an em overriding interests of state governor’s the audit of the ant about test, the Pickering the ployer. Under several months before office had been for “the interests of task is to balance court’s the testimo- legislative and at the time of citizen, commenting as a [employee], the In that set- deep was and ny [devisive]. and the public matters of concern upon wherein the ting testimony the State, employer, as an interest of the the office held his ambition for indicated public of the ser efficiency defendant, declaring the his com- promoting the by employees.” through its Account- performs vice it as a Certified petency [Public] 568, 88 at Pickering, supra, ant, disagreement 391 U.S. at S.Ct. his statement of and regarding inter weighing competing superior’s these with his decision became a ests, governor’s both the nature of the office courts are to consider audit opera- the nature interference with expression significant and employee’s of the such, As it office. tion of the defendant’s employment relationship. of the See Con- — protected speech.4 was not —, Myers, nick v. U.S. S.Ct. public by accountant. Patteson testified campaign certified statements cited 4. The later bill, opening they appear in his irrelevant because of the and said district court in favor discharge. remarks, after the occurred Additionally, Deputy I have tak- State Auditor. I’m a CPA. the district court I’m a aspired out of context I think en some of Patteson’s comments to be the State Auditor. incorrectly. interpreted The court probably them and will be in the future. So I operations disrupted in the that Patteson found Auditor’s Office probably biased. I am makes me a little testimony indicating by in his an and I know I am auditor biased because compe- job and his for Johnson’s his ambition tency being an auditor. I know what’s involved per- public accountant a certified job auditing. good do a what it takes to support does not form it. The evidence reviewing before After finding. committee, evident legislative considering legislative The committee apprise the com- simply intended require Auditor to be a the State bill that would Id. at 1687. failing pervisors. applying to consider Patteson’s Before By pending legislation about testifying Pickering balancing test determine Gover- responding questions Myers’ speech constitutionally whether Audit, nor’s to con- failed noted her protected, specifically sider on a matter of Patteson’s comments especially trusted employee, status as concern, weighed public substantial important that it was “to and observed effect only disruptive speech of the operation efficient successful with his relationship superior.5 Attorney’s District office for assistants to for its in lan- support position court found close working relationships maintain with guage Pickering stating significant- Id. at 1693. The Court superiors.” their be in- ly different would considerations ultimately Pickering struck the balance in volved su- when “the between Government, only favor it did so but perior and is of such a personal subordinate weighing after in the office disruption and intimate that certain forms of nature by speech against caused extent public superior criticism the the sub- questionnaire upon which the touched mat- ordinate the ef- seriously undermine ters at 1694. Be- Id. concern. working relationship fectiveness of the be- cause before the leg- Patteson’s statements tween at them.” 391 U.S. 570 n. islative committee must be evaluated under Although at 1735 special n. 3. considera- test, Pickering balancing the district tions certainly Pickering enter into the only in considering court erred the state’s analysis speech by especially trusted in its analysis. interests employees disruption causes and dissension Although the ultimate determina within government, we hold that speech tion in whether constitutionally is balancing Pickering test articulated in re- law, a protected question Connick v. proper mains the standard. That test re- 10; supra at 7 1692 n. Van Myers, 1690 n. & quires of the balancing employee’s and Gray, (5th 628 F.2d 492 Ooteghem public’s free speech against interest in we in the Cir.1980), present believe that interest in promoting of the state the effi- case district court have the ini should ciency public services it performs tial opportunity weigh competing through its Id. at employees. 88 S.Ct. under the standard. Ac proper interests at 1734. opinion cordingly, district court’s is va The Supreme decision Court’s in Connick correctly cated and remanded so that v. Myers, — U.S. —, 1684, 75 103 S.Ct. apply Pickering test. (1983), analysis L.Ed.2d 708 supports this applying analysis In to this Pickering and any resolves doubt about the applicabil case, give district ity balancing special of the court should high-level public test to to the employees. case an attention nature Patteson’s assistant dis trict As the speech. was for cir Court stated in attorney, Myers, dismissed Connick, in culating attorneys to other in a “the state’s a justifying the office burden questionnaire depending inquiry particular discharge included an varies expression.” about the su- attorneys’ employee’s confidence' in their the nature of the be, public supposed mittee certified to be that as a accountant and needed for the auditor, someday being office, running exceptionally interested in he state effective of the proposed Nothing benefit from bill. place in the was to act close. [Patteson] in the record indicates that this was statement was absent. [Johnson] [Johnson] a affront to Johnson or reflected then- making carry- assisted in the and [Patteson] present political against John- ambition to run office; policies ing out of the [Johnson] son. upon depended him to and articulate discern relating all kinds of matters [Johnson] Observing posi- special Patteson held As the associate in the the office. closest tion of trust and confidence in the Auditor’s office, occupied special position Office, noted, [Patteson] court and confidence. of trust between and [T]he [Patteson] superior as subordinate and [Johnson] very This statute is similar the em- at 1691-92. Connick U.S.C. was characterized as ployee’s expression 1983, and Patteson concedes that it ap- § concerning internal employee grievance “an if this plies only court finds that Johnson given policy,” accordingly office and Patteson’s rights. violated constitutional weight balancing in the test. Id. at little Because we affirm the district court’s deni- case, however, 1693-94. In this claim, al of process Patteson’s due we also speech upon public touched issues of con- agree that he cannot recover on that basis weightier expressed cern far than those However, under Neb.Rev.Stat. § Connick. to the extent that the resting state claims upon speech free Undoubtedly, principles Patteson’s statement stand dismissed the Governor’s Audit “did not disclose because of the trial court’s improper appli- everything it needed to disclose order for balancing principles cation of the set forth it” related to a matter of Connick, in Pickering [him] that dismissal is His testimony substantial concern. subject vacated to further consideration by days press came within after the and the the district court.6 legislature significant had atten- devoted Audit, particu- tion to the Governor’s and in III. Conclusion. lar report attempted to whether audit Accordingly, we affirm the district expenses to conceal certain in the Gover- claim, court’s on the judgment due Moreover, nor’s Office. Patteson made the and vacate and remand the first amend- response question by statement to a Sen- ment and similar state law claims for fur- Chambers, nothing ator in this record opin- ther consideration consistent with this indicates his was other than ion. truthful. Pickering

On the other side of the balanc- test, ing the court must consider the state’s ROSS, Judge, concurring part Circuit ensuring operation the efficient dissenting in part. of the Auditor’s Office. As the district majority’s analysis I concur in the observed, disagreement between However, due issue. it is my opin- Patteson and Johnson over the Governor’s ion that Patteson’s before the Audit was and The deep devisive. legislative hearing committee was not con- weigh disruptive court should the effect of and, such, I stitutionally protected speech as legislative testimony upon Patteson’s the affirm When the district court. right his employment relationship against light Patteson’s remarks are viewed in testify upon pending legislation, to his obli- appointment, the nature of his the political gation legislative to to respond truthfully job, necessity nature of his the of a close the to questioning, relating the working relationship appellee, with the in or controversy, the matter and whether already pub- fact that the information was out, speak not it was essential that he as he great public lic and not have been of did, retaliatory without fear of dismissal. event, in I importance any respectful- must Accordingly, we remand to the district majority’s from Part IIB the ly dissent applica- court for further consideration and opinion. tion in balancing of the test as enunciated Pickering and Connick. The defined the court’s majority correctly to balance the state’s interest as an duty Law

C. State Claims. employer against Patteson’s interest as a citizen, mandated the by claims un- brings Patteson also state law (Reissue 1977). Pickering in Board of holding der v. Neb.Rev.Stat. Court’s § public poli- reject wrongfully in violation of 6. We claim under state law dismissed Patteson’s public pol- cy, apply would not that his dismissal violated Nebraska such a cause of action icy. case. We see no reason to disturb this The district court ruled that even if Ne- this they employees braska allows to claim were determination. has threatened the au- employee that the Education, 391 88 S.Ct. U.S. employer the to run the office. thority of However, (1968). At 231. L.Ed.2d 811 Pickering misapplied then majority at 1693. Id. ' of this case and con- to the facts principles clearly applicable is statement This view, striking erred in my sequently, legislative statements to the Patteson’s for Patteson. balance from speech arose committee. concerning office employment dispute Myers, — U.S. —, In Connick signing the audit the Gover- policy (1983), the 75 L.Ed.2d 708 Su after Johnson and Shortly nor’s office. position clarified its preme recently on the disagreed application Pickering properly apply on how to instance, in this to Johnson policy such similar to this quite balance test a case voluntarily leg- testified before Johnson majority applied The should case. Thus, according to Con- islative committee. instead of teaching of Connick to this case nick, given must be weight additional an at analysis by its trying sidestep had threat- Johnson’s view that Patteson At 232-233. This case tempted distinction. the office. authority to run ened employment dispute involves an between majority misapplied I believe superior. Because Con- subordinate and they ignored one of the most Connick when controlling nick is and the district the district important findings made Connick, I not see opinion comports with do court. The district court stated: necessity of a remand. present facts of the case show that that relevant The Court in Connick held plaintiff between the Pickering applying considerations superi- as subordinate and the defendant 1) a close work- balance test are: whether be, supposed or was and needed to be 2) man- ing relationship necessary; office, of the running for the effective ner, place speech time and in which plaintiff close. The exceptionally occurred; 3) the context in which the place act in the of the defendant ger- All of these factors are dispute arose. plaintiff absent. The the defendant was striking the require mane in this case and out making carrying assisted in the First, the appellee. balance in favor of the office; policies working relationship a close necessity of and articu- depended upon him to discern the state deputy between a auditor and all kinds of matters late to defendant appointed goes auditor who him without relating to the office. As the closest Second, manner, time and saying. office, occu- associate in the remarks arose in- place which Patteson’s and confi- special position of trust pied to the speaking dicate his true motive Therefore, whatever would cause dence. legislative Patteson was not committee. that was a material breach of requested testify the committee to but by the state. destructive to vital interests of appellee volunteered such information after case fits the facts of Accordingly, Moreover, had his hearing. open- left (C.A. Fitzpatrick, v. 546 F.2d Sprague ing statement it clear that he was made it fits Cir.1976), closely more than 3rd giving political speech a which was certain Gray, v. 628 F.2d Ooteghem Van At to cause dissension within the office. (C.A. Cir.1980). It be remem- 5th must discussing the Third, n. 4. though bered that even in which the significance of the context plaintiff in advance that was knew arose, stated: dispute the Court in Connick hearing, going testify legislative at the that, he not speech concerning objection When office no did employee and had dispute say from an intended to policy employment plaintiff arises know what time he consent- of that not know at the concerning very application and did weight plaintiff’s testifying ed to the speaker, to the additional policy disagree- his testify plaintiff view given supervisor’s must be to the therefore did not report charge the defendant’s offend the first ment with office of several and the governor’s judgment audit of amendment of the dis- testimony months earlier. trict should be affirmed. thought known that he made it plaintiff it everything

the audit “did not disclose in order for

needed to disclose [him] 2, 27. page Plaintiff’s Exhibit sign it.” literature, campaign

Later the defend-

plaintiff running against office of Auditor of Public

ant for the

Accounts, he said that he had “refused to De- inaccurate audit.” shoddy, disagreement

fendant’s Exhibit 105. The defendant plaintiff

between the office governor’s about the audit of CLEMMONS, Appellant, Edward Lee had been for several months before and legislative testimony at the time of the setting In that deep STATES,* and devisive. Appellee. UNITED indi- wherein No. 82-2448. by the office held cated his ambition for defendant, declaring compe- Appeals, Court of United States Account- ás a Certified Professional tency Eighth Circuit. ant, disagreement and his statement of regarding decision superior’s with his Sept. 1983. Submitted governor’s audit of the office became Decided Nov. with the significant opera- interference such, As tion of the defendant’s office. protected speech.

was not mine.) The cit-

(Emphasis majority opinion of the above part passage.

ed At n. cite, they not nor did they

5. However did

consider, legal the crucial factual and con-

clusion drawn the district court: significant conduct became “a

appellant’s of defend- operation

interference with the caused a

ant’s office” and that whatever of an close exceptionally

material breach vital in-

relationship was destructive to the of the state. The district court dis-

terests very upon

cussed the factors relied Con- similar conclusion.

nick and reached a sum, find, I as did the Connick, the limited first amend- re- involved here does not

ment action which he

quire that Johnson tolerate disrupt believed would of-

reasonably

fice, destroy authority, undermine his Patteson’s dis- working relationships.

close * caption appel- States as de- complaint originally to name the United filed pro The United States is fendant. lant se the “United named as defendant Court, properly in motions under 28 U.S.C. District of Mis- named States District Western federal convictions. amends 2255 to set aside § own motion souri.” This Court on its notes financial contain auditors p2jne statements. hearing plaintiff’s employment at and mination of the Patteson remained proposed legisla- testified in favor mid-1981 not occurred if of his testimony, tion. In the course before legisla- had not testified legislators about the questions asked Gover- Although tive committee.” the district question nor’s to a response Audit. In from court found that Patteson’s con- inquiring why Senator Chambers motivating stituted a substantial or factor

Case Details

Case Name: Chuck R. Patteson v. Ray A.C. Johnson, State Auditor of Public Accounts for the State of Nebraska, in His Official Capacity, and Individually

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 16, 1983

Citation: 721 F.2d 228

Docket Number: 82-2125

Court Abbreviation: 8th Cir.