Case Information
*3
BEA, Circuit Judge:
Appellee Maria Brandon worked for many years as a civil litigation attorney for the Maricopa County Attorney’s Office (MCAO), and later (briefly) as a direct employee of Maricopa County, defending the county and related entities in civil lawsuits, before again returning to her previous employment at the MCAO. During her time as a direct employee of the county she received a call at her office from a newspaper reporter inquiring about a case she was handling for the Maricopa County Sheriff’s Department. One of her comments to the reporter about the case was later published in an article in that newspaper. This article suggested that the county substantially increased settlement offers to avoid having key county officials testify.
After Brandon returned to the MCAO, county officials responsible for overseeing risk management and civil lawsuits against the county thought her conduct in talking about the case mentioned was unprofessional for a lawyer representing the county. In light of what they considered were justifiable misgivings regarding Brandon’s judgment, these officials requested that Brandon not be assigned further cases in which the county was a party and which involved risk management. Brandon was later terminated from employment with the MCAO. She filed a lawsuit against the county and certain county officials. A jury found for Brandon and against Maricopa County on her claim that she had been fired in retaliation for her exercise of First Amendment rights in speaking to the newspaper reporter, and against certain county officials for state-law based tortious interference with her employment contract. The district court entered judgment on the basis of the jury’s verdicts.
We reverse.
I.
Maria Brandon, Appellee-Plaintiff, was employed by the MCAO for several decades as a civil litigation attorney. She left the MCAO in 2009 to take a job with the “Special Litigation” department formed by Maricopa County to substitute for the MCAO in certain civil lawsuits. While at Special Litigation and still representing Maricopa County as an attorney, Brandon spoke to an Arizona Republic reporter who called her office line to elicit comment on the county’s *4 settlement of a lawsuit, which claimed sheriff department brutality towards protestors, in which Brandon was an attorney of record. The newspaper reporter called Brandon because a confidential memo Brandon had written was leaked by person(s) other than Brandon. Brandon expressly authorized the newspaper to publish her spoken comments but refrained from commenting directly on the memo. The newspaper article suggested that the county made an overly generous settlement offer to prevent embarrassing certain county officials who might have been required to answer questions in depositions. On this issue, the newspaper related that Brandon said: “I don’t know why they did what they did, and I’m sure they have their reasons.”
Special Litigation was later disbanded after the Arizona courts ruled that the county did not have statutory authority to reassign commonplace legal work outside the MCAO. Brandon was then rehired in 2011 by the MCAO with a contract that included a probationary period. During the probationary period, her employment was terminated ostensibly because of an altercation she had with another staff member.
After being fired, Brandon filed a lawsuit against Maricopa County and various county officials for multiple claims related to her termination. The case was narrowed to four claims eventually tried to a jury: 1) that Maricopa County and her MCAO supervisor had retaliated against her for exercising her First Amendment rights, by talking to the newspaper reporter, in violation of 42 U.S.C. § 1983; 2) that the County and her supervisors violated her due process rights in violation of 42 U.S.C. § 1983 by terminating her without following proper procedures; 3) that the County had wrongfully terminated her employment under state law; and 4) that County risk management officials, Sandra Wilson and Rocky Armfield, had tortiously interfered with her employment contract by asking the MCAO to reassign her cases to another lawyer.
6 B RANDON V . M ARICOPA C OUNTY Following a seven day trial, the jury returned a verdict in favor of Brandon against Maricopa County on her claim of violation of her First Amendment rights in connection with the newspaper interview and awarded nominal damages of $1. The jury also returned a verdict in favor of Brandon against defendants Armfield and Wilson for tortious interference with her employment contract and awarded damages of $638,147.94. The jury found for defendants on Brandon’s due process and wrongful termination claims, which claims are not at issue in this appeal. Defendants later filed a motion for judgment as a matter of law or, alternatively, for a new trial, as to the First Amendment and contract interference claims, which the district court denied. The district court subsequently awarded $302,175.28 to the plaintiff for attorney fees under 42 U.S.C. § 1988(b) as the prevailing party on the First Amendment claim, a 42 U.S.C. § 1983 claim.
On appeal Appellants first argue that, as a matter of law, the jury wrongfully imposed liability for the tortious interference with contract claim, for their conduct did not create legal liability under Arizona tort law. Appellants next argue that Brandon’s speech to the newspaper was, again as a matter of law, made pursuant to her official duties and, therefore, not protected by the First Amendment from discipline, such that any adverse employment actions taken against Brandon by her employer because of the newspaper interview do not give rise to any legal liability under 42 U.S.C. § 1983. Appellants seek reversal on both claims.
II.
Under Arizona tort law, a necessary element of tortious
interference with contract is that such interference be
“improper.”
[1]
Wagenseller v. Scottsdale Mem’l Hosp
.,
[2] Restatement (Second) of Torts § 773 states: “One who, by asserting in good faith a legally protected interest of his own or threatening in good faith to protect the interest by appropriate means, intentionally causes a third person not to perform an existing contract or enter into a prospective contractual relation with another does not interfere improperly with the other’s relation if the actor believes that his interest may otherwise be impaired or destroyed by the performance of the contract or transaction.” This doctrine placing a limit on what is “improper” makes good practical sense. Individuals (such as county representatives Wilson and Armfield) who have a legitimate interest in the performance of a contract between two third parties (such as the employment contract between Brandon and the MCAO entered into to provide legal services to their employer, the county) should not face potential tort liability for concerning themselves with the performance of that contract. In a word, certain county employees have a legitimate interest in who is a lawyer for their agency.
The communications of a client (the county, as represented by Wilson and Armfield) speaking to its attorney (the MCAO) requesting specific legal personnel be removed from certain county matters fits the situation contemplated by Snow and McReynolds . The district court, however, rejected Appellants’ argument on this point by finding that Maricopa County’s risk management office (where Wilson and Armfield worked) was “not the ‘client’ for purposes of this analysis.” This conclusion is factually incorrect because the record is undisputed that the risk management office *7 coordinated, on behalf of the county, with the MCAO to manage the resolution of civil lawsuits against the county. The record establishes that the County was acting through its risk management office and personnel in its interactions with the MCAO. [3] No reasonable jury could find otherwise from the record here.
[3] Indeed even Appellee-Plaintiff’s counsel during trial referred to Wilson and Armfield as the county’s representatives to the MCAO: “. . . the representative of the County, including the Board of Supervisors, and high-level person in County government Sandi Wilson and the head of Risk Management Rocky Armfield all don’t want you working on these Risk Management cases?” . C
As such, risk management officials Wilson and Armfield
had a legally protected interest
[4]
in ensuring the MCAO
provided quality legal services to the county. Wilson and
Armfield requested reassignment of risk management cases
because Brandon publicly commented on a sensitive and
ongoing county legal matter in a manner they reasonably
perceived as unprofessional and betraying her duty of loyalty.
On this record, requesting that MCAO supervisors remove
from certain cases one of their lawyers reasonably perceived
as a liability to the county certainly cannot be considered an
improper means for protecting the county’s legitimate legal
interests, even if Wilson and Armfield did not have statutory
authority to fire Brandon. Under
Snow
and
McReynolds
, no
reasonable jury could conclude that Wilson and Armfield
“improperly” interfered with Brandon’s employment contract
(made for the express purpose of serving the county’s legal
needs) when they requested reassignment of risk management
cases to other MCAO lawyers. Arizona law’s respect for a
client’s broad discretion in the selection of a legal
representative of his or her own choosing further undergirds
the propriety of Wilson and Armfield’s actions. A RIZ S UP .
T . 42, ER 1.16 cmt. 4 (“A client has a right to discharge a
lawyer at any time, with or without cause, subject to liability
for payment for the lawyer’s services”);
State Farm Mut. Ins.
Co. v. St. Joseph’s Hosp.
,
10 B RANDON V . M ARICOPA C OUNTY terminate the attorney-client relationship at any time, with or without cause”).
No reasonable jury could conclude on this record that the county’s risk management office was “not the ‘client.’” The tortious interference with contract judgment entered upon the jury’s verdict against defendants Wilson and Armfield is thus reversed because, as a matter of law, their conduct was not improper.
III.
Speech made by public employees in their official
capacity is not insulated from employer discipline by the First
Amendment but speech made in their private capacity as a
citizen is.
Garcetti v. Ceballos
,
The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee’s written job description is neither necessary nor sufficient to demonstrate that conducting the task is within *9 the scope of the employee’s professional duties for First Amendment purposes.
Id
. at 424–25. Later interpreting the
Garcetti
case, the Ninth
Circuit affirmed that generally “the question of the scope and
content of a plaintiff’s job responsibilities is a question of
fact.”
Posey v. Lake Pend Oreille Sch. Dist. No. 84
, 546 F.3d
1121, 1130 (9th Cir. 2008) (dispute over whether a school
security guard’s duties related to student discipline extended
to internal communications on security policies).
See also
Eng v. Cooley
, 552 F.3d 1062, 1071 (9th Cir. 2009) (“the
question of the scope and content of a plaintiff’s job
responsibilities is a question of fact”) (internal quotation
marks and citation omitted). Yet in synthesizing relevant
Ninth Circuit precedent since
Garcetti
, an en banc panel of
this Court in
Dahlia v. Rodriguez,
1. “First, particularly in a highly hierarchical employment
setting such as law enforcement, whether or not the employee confined his communications to his chain of command is a relevant, if not necessarily dispositive, factor in determining whether he spoke pursuant to his official duties. When a public employee communicates with individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.” Id . at 1074 (internal citations omitted). 2. “Second, the subject matter of the communication is also
of course highly relevant to the ultimate determination whether the speech is protected by the First Amendment. . . When an employee prepares a routine report, pursuant to normal departmental procedure, about a particular incident or occurrence, the employee’s preparation of that report is typically within his job duties. . . By contrast, if a public employee raises within the department broad concerns about corruption or *10 systemic abuse, it is unlikely that such complaints can reasonably be classified as being within the job duties of an average public employee, except when the employee’s regular job duties involve investigating such conduct.” Id . at 1074–75 (internal citations omitted).
3. “Third, we conclude that when a public employee speaks
in direct contravention to his supervisor’s orders, that speech may often fall outside of the speaker’s professional duties. Indeed, the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a ‘practical’ matter, within the employee’s job duties notwithstanding any suggestions to the contrary in the employee’s formal job description.” Id . at 1075 (internal citations omitted).
The Dahlia court went on to apply these principles to find that the record showed that Dahlia’s statements disclosing police brutality raised triable issues of fact as to whether the statements were “protected by the First Amendment.” Id . at 1078.
With this legal standard in mind, we now turn to Appellants’ argument on appeal. Appellants claim that Brandon’s comment quoted by the Arizona Republic was made in her official capacity and thus not protected by the First Amendment for three reasons: 1) the comment involved a case she worked on as a county employee, 2) the comment discussed her work product, and 3) the comment was made on her county office phone in response to a call during normal business hours. [5] The Appellants conclude from this that “the only reasonable conclusion that can be drawn is that Ms. Brandon commented to the press about one of her cases in her capacity as an attorney for the County,” such that her speech would not be citizen speech constitutionally protected under the First Amendment.
The district court rejected this same reasoning explaining
that “[t]he key inquiry in determining whether speech is
public or private is whether the speech was made pursuant to
the employee’s official duties.”
Garcetti
,
Brandon’s First Amendment retaliation claim, but found that
the defendants provided no evidence to show that Brandon’s
statement violated any policy, contained confidential
information, harmed the county, or interfered with her duties
so as to outweigh her First Amendment protections.
Connick
v. Myers
,
The error in the district court’s conclusion stemmed from
its failure to undertake the “practical inquiry” required by
Garcetti
. Under Arizona law, as an attorney for the county
Brandon had a broad fiduciary duty to her client – the county.
In re Zang
,
B RANDON V . M ARICOPA C OUNTY
15
24, 26 (1997) (“A lawyer is a fiduciary with a duty of loyalty,
care, and obedience to the client. The relationship is, and
must be, one of utmost trust.”). Moreover, Arizona’s rules of
professional conduct for lawyers anticipate public statements
made to media outlets to be part of an attorney’s duties
representing a client.
See
A RIZ . S UP . C T . 42, ER 3.6(a);
cf.
Cox Ariz. Publ’ns, Inc. v. Collins
,
With the legally defined scope of an attorney’s duties in
mind, it becomes obvious that Brandon’s comments to the
newspaper could not constitute constitutionally protected
citizen speech under the principles from
Dahlia
. First, while
Brandon was not speaking within her chain of command, she
was inevitably speaking as a lawyer representing the county
as her public statements touched on the very matter on which
she represented the county. Second, unlike in
Dahlia
,
Brandon did not bring up any allegation of corruption or other
serious misconduct in her statement to the newspaper, she
merely suggested that she disagreed with the settlement
figures authorized by the county’s representatives. While the
newspaper article suggested the county paid too much to
protect certain employees from public criticism, Brandon’s
published statement made no such allegation but merely
reflected negatively on her client. That the attorney who
handled the case did not “know why [the client] did what they
did” implies the client was acting without professional advice
when paying the settlement. Brandon’s statement that they
must “have their reasons” cements the implication that the
client was acting unprofessionally. Indeed, if Brandon
alleged any sort of misconduct this would be a different case.
Third, as was expressly recognized by various witnesses at
trial, Brandon’s statements to the
Arizona Republic
did not
violate any MCAO policy, to the extent applicable, or County
policy, which according to
Dahlia
is relevant to the analysis
of whether Brandon’s speech was made in an official capacity
*13
IV.
Because we remand for the district court to enter judgment for Appellants, there are no successful claims that could serve as the basis for a fee award. As such, the district court’s fee award must be vacated.
REVERSED.