Mekss v. Wyoming Girls' School

(Petitioner), MEKSS, Appellant Regina SCHOOL, STATE

WYOMING GIRLS’ WYOMING, Appellee

(Respondent).

No. 89-235.

Supreme Wyoming. Court 12, 1991.

June July

Rehearing Denied Graves, Yillemez, A. Santini & Ville-

Jane Pevar, mez, P.C., Cheyenne, Stephen L. Union, Denver, American Civil Liberties Colo., appellant. for Gen., Atty. W. Joseph Meyer, B. John Gen., Renneisen, Deputy Atty. Karen A. Gen., appellee. Byrne, Atty. Asst. Sr. URBIGKIT, C.J., and Before THOMAS, CARDINE, MACY and GOLDEN, JJ.

THOMAS, Justice. appeal involves the delicate balance

This governmental employee’s right between authority govern- speech and the of free manage their offices. The ment officials appellant, must decide whether the court (Mekss), discharged Regina was un- bookkeeper lawfully position as a from (School) be- Wyoming at the Girls’ School accept right refusing disciplinary mea- of her free of the exercise cause discharged imposed? law- sures she was speech, whether protected. fully for conduct “II. Girls’ Whether School, discharged by the she was After procedures the of the School followed the to Personnel Review appealed Mekss terminating Wyoming Personnel Rules ap- Board Personnel Board. The Review appellant? lawful, discharge but it or- as proved the Wyoming “III. the Girls’ Whether salary paid be her and dered that Mekss standing party had as a to cross- School months, period that co- five a benefits for personnel petition the decision of the re- re- during time which the incides with the view board?” appealed then to pending. was Mekss view The Girls’ is the Wyoming state court, and filed a the School the district by provide created to institution statute court affirmed cross-appeal. The district educational, vocational, and rehabilitative Review Board the action of the Personnel girls to adolescent committed services respect discharge, but reversed with to the the state’s district courts. Sections 25-4- pay months and benefit. the award of five -103, to It is W.S.1977. one of court, her to this Mekss seeks appeal In charitable, reformatory, penal in state she will reinstated and reversal so that Const, Wyo. art. stitutions described affirm pay. will the back We also receive general supervi establishes the which § respect with the order of the district court sion of Board and Reform Charities of the action of Per- to the affirmance governor, the over such institutions. The in approving Board the dis- sonnel Review state, treasurer, the state secretary of charge. of the portion reverse that We auditor, superintendent and the state state reversed the order the district court that compose instruction pay ground on the that the award back (Board). Reform Section 25- Charities and jurisdiction no had because district court 1-101, appoints Board then The W.S.1977. right cross-ap- its School had no to take secretary responsible is an executive who peal from the decision of the Personnel evaluating reporting condition Board. Review con all under the Board’s institutions Appellant, Mekss In her Brief of states 25-l-103(a) (b)(ii), W.S. trol. Section these issues: secretary coordinates 1977. The executive public employee “1. a has the Whether of the Board assists activities reprisal a right speak, to general operation of the supervision govern- matter concern to health, correctional, nursing state’s mental empowered investigate agency ment di institutions. The home and children’s subject of that concern. and resolve the day day opera rect supervision Wyoming School vio- “2. Whether Girls’ responsibility of tions of the School are Personnel Rules termi- Wyoming appointed by lated superintendent who also nating Regina employment 25-1-201(b)(i) (c), when the Board. Section steps it did not follow successive superintendent, Jack Geis W.S.1977. required the Rules. discipline primary au (Geisler), charged ler personnel all assign thority employ and Wyoming Girls’ School “3. Whether carry out the manage and necessary to standing under the Ad- lacked 25-1-201(c), school. Section mission of the appeal Procedures Act ministrative W.S.1977. the decision of Personnel Review

Board, Regina awarded Mekss five which employed at initially was pay.” months back night dormitory attend- as school in 1984 School, Appellee, in its Brief of sets she was transferred ant. way: in this forth the issues as a where she worked business office permitted assignment This bookkeeper. employee state can be “I. Whether a training de- and her Mekss to utilize employment for circum- from dismissed accounting. employment eval- gree Her authority and venting lines of established job performance performance that her the morale and ability uations indicate and, position competent in that was in the ultimately, quality the staff of ser- outstanding range. Mekss held this book- agency. vice rendered then issued a memorandum that about conditions er cies. aware that a ployee a to be night enced some ees, particularly those who worked on the keeping position until ate. events cance of this case and the cember of 1988. Because of the meeting Beginning employees, shift. Those drawn, leading dissatisfaction, March of off problems group in a detailed campus to her 1987, disregard problems 1988, discharge the School. Geisler her dismissal De- intimidation of new- with a few to discuss concerns employees the School chronology very Geisler for school included em- fine balance appropri- had held employ- became invited signifi- experi- poli- ployees point rassed press a difference dents were harassment of those who actually concerns and add staff members would reinforce stated suggestions utive one Geisler states in his “There is vast difference between exec- n perceives not prerogative in favoring already into who have been (early) does). totally n : submission, (which exist of Girls’ School em- retirement. : n intimidated. But I hard-working reiterate that many is what Mr. Geisler letter) perception, ^[*] some even to the relentlessly more question, sjc those who outright or offer (as if they prece- many sjc Mr. ha- ex- of the staff to come and members discuss unpleasantness “None of us cares for the him

their concerns with or with Assistant dealing situation nor for with the Superintendent Gary Kopsa (Kopsa). I, problems anonymous my- via letters. Through spring and summer of self, have had moments of delusion al- and, problems continued on June yearning go most to Jack Geisler of- employees anonymous two sent an fering proposal problem a of what the (Sherman), Gary letter to K. Sherman Ex- might possible suggestions be and so Secretary ecutive of the Board of Charities up that this entire mess could be cleared and Reform. That letter set forth in detail simply, quickly, finally, only but one has morale, discriminatory concerns staff about through to sit one or two uncensored promotion practices, corporal the use of (a meetings staff stinted event in the punishment, management and criticism of teacher), attempt words of one to resolve at the school. Sherman advised Geisler problem (and supervisors’ meeting a in a requested about this letter and Geisler talking very are non-threatening we lan- response. July submit a On Geisler here), guage or be involved in some crisis Board, response copies sent his to the undeniably it crystal before becomes among employees circulated were all at the clear that Jack Geisler will listen to the response School. Sherman found Geisler’s input only a select few ‘fair haired satisfactory explanation to be of condi- boys’ and ‘Boys’ members of the Club’ tions at the School and an exoneration of question consistently without and that he any wrongdoing part manage- on the presentation will even allow for ment. point another of view or the other side of that, After the Board received several * * * story. It seems that Mr. Geis- anonymous more letters that included one ler thinks there is no need for correction August written Mekss on improvement or room for in position Statements in the letter au- (Emphasis original.) ever l thored Mekss that are relevant to this proceeding following: include the appropriate “It is not to have an adminis- grave problems “There are in administra- incapable offering trator feedback to tion here at the Girls’ School correcting dignified staff manner. growing progressively which are worse

and which are negatively affecting very s|< ifc $ $ ^[*] “(cid:127) that this person Your staff to a believe “Boys’ members of the favored “Even girls judgment program beneficial Jack’s questioned have Club” staff I think most serves. in several instances. “ n No one admitted man has agree that the members would writing anony- perhaps he has objectivity, his lost (Emphasis original.) mous letters. years, after all these lazy tired grown “(cid:127) any proof of No one demonstrated out, easy way he looks for anonymous allegations. There were Dark tools from the working are we (6) uni- employees expressed who six Ages. versal dissatisfaction.” “I do not know how ^{[*] [*] [*]} these ^[*] problems ^[*] could ^[*] tions Sherman’s were conclusion spurious, was that “the mean spirited allega- any fashion other product have been dealt with As a substance.” system. grievance however, in the current changes investigation, several this situation. process not workable night for the shift made schedules were go ever to a boss subordinate can What request that Geisler Sherman did staff. making mistake they tell them copies of letter so that the staff post his Mr. situation where especially and results of aware the the School would be abundantly clear that has made it Geisler investigation. the well, even suggestions he does take 1988, a staff September scheduled On most non-threaten- couched in the those employees meeting was held for all the language?” School, Mekss attended that the at the Board then concluded Sherman and meeting. meeting, present- At Geisler the necessary to have an inves- that it would be emphasiz- speech prepared had ed a that he verify the exist- tigation at the School, School impor- mission ing the alleged any improprieties. ence of trust, harmony, and mu- honesty, tance state, for the The corrections administrator re- among employees, and he respect tual supervisor, was Geisler’s immediate who everyone his memorandum dated minded the Women’s Center and the warden at discuss that the staff to in March invited assigned two-day investi- to conduct were with him. ideas and concerns their investigation That conducted gation. was November, the Board In the month of each em- August School, statu pursuant met at fifteen at the was allocated ployee personal to make tory duty of the Board individually the inves- to meet with minutes at least inspections of all state institutions present any tigators and concerns. 25-1-104(b), every year. W.S. Section once investiga- results the confidential visit, During of this Sec the course in a from summarized letter tion were Karpan met with retary Kathy of State 26, 1988. August to Geisler dated Sherman disgruntled em and several other Mekss part, that letter advised Geisler: In meeting, employees At ployees. target you you have been the “As know investigation expressed concern letters sent to anonymous several complete and that the fair and had not been myself. elected officials and five re Karpan’s inaccurate. results were allega- raised sugges “To settle the issues was the to their concerns sponse * * * letters, I asked tions those employees [the] contact Sherman that the tion * * * administrator, corrections [the] On November complaints. their about Cen- Wyoming Women’s Mekss, Warden following up that apparently interview conduct a confidential ter to call attempted to suggestion, Sherman employee each with investigation. Sherman was discuss School. Girls’ she Mekss when to talk with not able investigation called, indicate corrections admin “The results of this he but asked called, following: he her call. When to return istrator “(cid:127) her concerns refused to discuss support of Mekss overwhelming You have the had he since corrections administrator

your staff. investigation conducted the that she was asked Mekss about her concerns with re- calling complain spect about. After their con to the School. There is a discrepancy versation, the corrections administrator as to Geisler’s and percep- Mekss’ several him called Geisler inform of Mekss’ call response. tions of her Geisler said that to Sherman and the return of that call to only Mekss told him that she wished to Mekss. things make better and that her call to Sherman had to do investigation. with the 30, 1988, Mekss, Geisler, On November testimony, In her Mekss stated that she Kopsa, supervisor Mekss’ immediate told Geisler about her concerns with staff the business office met to discuss the receptive morale and that he was to this the cor- conversation with event, any information. Geisler advised rections administrator. Mekss was asked disciplined Mekss that she would be if she had tried to call Sherman about presented insubordination. He Mekss with matter, reply school and her that her (1) options: three resign she would from call did not concern school matters. After position; (2) accept her she would a two- meeting, partici- Mekss and the other suspension apol- week and write a letter of memorandum, pants signed prepared by ogy people addressed to those who had secretary Geisler’s that memorialized the received and who had been affected meeting. concluding essence of the letter; (3) she would dis- statement was: pursue missed. Mekss elected to the sec- “Jack Geisler stated that if there were option, ond apolo- she wrote a letter of School, concerns about the Girls’ * * * gy that she submitted to Geisler the same they expressed should FIRST be day. apology The letter of drafted supervisor], Gary immediate [Mekss’ governor, Mekss was addressed to the Kopsa Regina or himself. stated that Sherman, the other members of the Board had, fact, she stated her concerns Reform, of Charities and and the School through proper (Empha- channels.” staff, said: original.) sis in “I am the writer of one anony- of five meeting, After that but also on November mous many letters as different au- 30, 1988, contacting Mekss did succeed in thors written the Board about Sherman to discuss concerns about the My Girls’ School last summer. intention investigation.1 In the course of that tele- writing convey problems was to which phone conversation, Mekss, for the first experienced I had personally, time, been wit- disclosed to Sherman that she had to, many ness and about which Girls’ one of written letters. At School staff had shared common concern conversation, point some in that Sherman or frustration. told Mekss that she was at risk for violat- ing the chain of command and that he sorry: “I am intended to inform Geisler of her call.2 “1). things sorry came to such a day, The next telephone Sherman did Geis- state of affairs that I I felt could not in ler to inform him of the conversation with good go 2). conscience let unchallenged, Mekss. thought that I anything I could do 5, 1988, it, 3).

On December help any personal Geisler and Mekss fix for suffering met might to discuss the most recent experienced Jack Geisler have this, 4). call from Mekss again to Sherman. Geisler that Girls’ School staff members discrepancy shortly 1. There is a in the record as to that the call occurred after Mekss' No- day, whether Mekss called Sherman the same meeting significant. vember 30 with Geisler is following day, November or the December 1. A-13, Hearing consisting Exhibit of Geisler’s hearing testimony 2. Sherman insisted in his phone notes of a December call from violating he informed Mekss of her "risk” in Sherman indicate that Mekss called Sherman very chain-of-command at the outset of their evening of November 30. Mekss testified warning conversation. Mekss testified that the following day, that she called Sherman the De- hour-long came much later in the conversation. Regardless cember 1. of whether the call was made on November 30 or December the fact grounds as for might inten- misconduct set forth experienced have a whole Mekss’ dismissal Geisler’s December upheaval; sified notice intention for were dismissal “but, “circumventing lines of authori- established avenues, 2). “1). I I no other saw ty refusing accept disciplinary mea- already been upheaval had know that the imposed.” responding In to Mekss’ sures years several affecting us for at least petition for review before the Personnel appears it still to be with us. and that Board, gave these two Review my hope never see Jack’s “It was reasons for dismissal: publicly he be smeared. ‘head roll’ or that “(a) circumventing established lines Board, being hope that the My only was authority. so, compre- position to seek in a do would “(b) quiet refusing accept disciplinary make im- mea- information and hensive objec- imposed.” through provement correction sures I think that it would be adjustment. tive for testifying about the first reason say the same about the other safe to ter- dismissal the December 21 notice of writers as well. mination, “attempts to Geisler said that not, that I day, “I still to this believe do peace safety of others endanger the approached this situation could have writing unsubstantiated accusations reprisal agency from this within disruptive good of the service” challenge I the conclusion of this Wyo- suggestion inserted at the allega- investigation that no summer’s That ming Attorney General’s office. were found to be substantiated be- tions ground something con- was not Geisler was information directly cause it contradicts cerned with when he wrote December presented. I know I which of dismissal. Geisler letter notification acknowledge my that the tone of let- “I telephone call to also testified that Mekss’ nasty places in a few ter was —and shortly Sherman after November I still assert that its apologize —but and Mekss meeting between himself was true.” substance authority lines of established circumvented following day, justified Geisler returned the specific The that and was the event advising that, Mekss that was an letter in further stated dismissal. Geisler acceptable apology. view, provide to an ac- his Mekss’ failure re- ceptable apology constituted letter and Mekss On December Geisler im- accept “disciplinary measures fusal to her more time to discuss letter of met one posed.” disciplinary apology the status of and to their They were unable resolve options. hearing requested a before Mekss then differences, Mekss indicated that dis- and board,” pursuant to “personnel review only alternative. missal seemed to be Act, Procedure Wyoming Administrative notifi- wrote Mekss a letter of then Geisler -115, per- W.S.1977. Such 16-3-101 to § suspended her with cation dismissal hearings employees for appeal state sonnel days. working On December pay for ten personnel by a three-member are conducted attorney Mekss’ Geisler advised to panel pursuant board review date. effective of her dismissal 9-2-1019(a), personnel W.S.1977. The § definition, board, “agency” by review that was fur- The notice termination Department of Administration within the reasons for her to Mekss listed two nished 9-2-1002(a)(i), (§ W.S. (1) and Fiscal Control They attempts to en- were dismissal. and, proceedings 1977), consequently, such safety by of others danger peace and with the in accordance must be conducted writing accusations that unsubstantiated Act. service; Wyoming Procedure Administrative good of the disruptive to the hearing a person- before request The for (2) by circumventing insubordination granted by the was authority nel review board while re- lines of established hearing held School, two-day was and the refusal to attempts counsel and fusing hearing, the Per- After the imposed. May, 1989. The disciplinary measures accept Wyoming should with “4. The Girls’ School Board filed its decision sonnel Review (5) Department remunerate Ms. Mekss five months personnel division (and benefits). Fiscal Control. The re- salary Administration and associated upon Ms. muneration should be based and conclusions of findings of fact salary Mekss’ at the time of her dismis- Personnel Review Board law made compensation This should constitute sal. are: complete full and settlement. “Findings of fact: Mr. should “5. Geisler Ms. Mekss good to excellent “1. Ms. Mekss had a Conclusions, accept the above refrain Techni- a Fiscal Control work record as from further actions related to these good rapport appeared cian. She to have Conclusions and allow the dedicated and workers. liked her fellow with be competent Wyoming staff of the Girls’ self-ap- apparently “2. Ms. Mekss was School concentrate on activities which the issues set pointed to call attention to are of direct resi- service to School’s letters, one forth dents which are direct fulfillment she authored. which of the mission of the Girls’ exhaust the nor- “3. Ms. Mekss failed to School.” by taking system options personnel mal though Even the Personnel Review Board prior directly to Mr. Geisler issues against request ruled for reinstate- manner in which she proceeding ment, the did that Mekss decide was did. pay entitled to receive five months back immediately should have “4. Ms. Mekss and associated benefits. the 11/30/88 conversa- ended Gary petitioned once court tion Mr. K. Sherman she Mekss the district pursuing pursuant risk in advised she was at review of the Board’s decision was, though 16-3-114, the issues as she even In addition to as- W.S.1977. § initially had been invited Ms. serting avenue the erroneous nature of the Board’s Kathy Karpan. decision, that the deci- Mekss also asserted specifically failed to set forth detailed sion applied some sort of dis- “5. Mr. Geisler support findings of fact to the ultimate cipline some manner to Ms. December, conclusions of law. facts and the Board’s March and between sought in turn review of the Ms. Mekss and Mr. “6. Both Geisler pay assert- award of the five months back aired failed to allow issues capri- arbitrary, the award was weigh directly and failed to the full con- discretion, cious, an abuse of excess of parties sequence of their actions. Both statutory authority, unsup- the Board’s hastily improperly at times acted and and by The dis- ported substantial evidence. directly contributed to the dismissal. arguments, heard reviewed the trict court “Conclusions: record, affirming entered an order and disharmony “1. Ms. Mekss created termination, the deci- Mekss’s but reversed Wyoming the function of Girls’ to re- sion of the Personnel Review Board School and circumvented established munerate Mekss’ with five months back authority. lines of appealed then to pay and benefits. Mekss fully comply “2. Mr. Geisler did not this court. with the DAFC Personnel Rules by Regulations application primary appeal in his consist- The focus of Mekss’ is ent, well-defined, progressive disci- an in- whether her dismissal constituted prior to his dismissal of plinary fringement “constitutionally protect- measures expression.” Ms. Mekss. ed interest in freedom of 138, 142, 103 Myers, v. 461 U.S. Connick request Ms. Mekss’ for reinstate- “3. (1983). 1684, 1687, 75 L.Ed.2d 708 S.Ct. Technician is de- ment as Fiscal Control The First Amendment to the Constitution being in interests of nied as not the best guarantees freedom of functioning of of the United States party either or the overall speech to all citizens as a fundamental School. Girls’

193 by limit re- counsel from both sides on the constitu- This constitutional right.3 applied to stricting speech is state free present tional issues in the case.6 The by of the and state officials virtue agencies Board, course, a was foreclosed from immunities” clause of the “privileges or constitutionality determination as Amendment to Constitution Fourteenth Belco See the dismissal School. 1, Section United States.4 Article of the v. Corp. Equal- Petroleum State Board of 20, Wyo- of the of the Constitution State ization, (Wyo.1978). 587 204 Essen- P.2d every guarantees person to ming also tially, limited its review was to determi- Cheyenne speech.5 right of freedom of sufficiency nation to as evidence 717, Airport Rogers, Board v. 707 P.2d 726 discharge justify to the School. appeal dismissed 476 U.S. (Wyo.1985), this circumstances of case demonstrate (1986), 1110, 1961, 106 90 L.Ed.2d 647 S.Ct. of the rule because this Board con- wisdom Shopping court, citing PruneYard this acting non-attorneys sisted of who were Robins, 74, Center v. 447 100 U.S. S.Ct. It, legal the benefit of counsel. (1980), 2035, recognized 64 L.Ed.2d 741 indeed, hazardous to would be afford principle that: authority a body such to decide sensi- may add to “State constitutions [United law, questions tive of constitutional which may limitations and States constitutional] question indeed is. protective more of individual liberties. be however, not, They may under the dic- Supreme States Court United supremacy, protective.” less tates be court appellate has discussed the role of speech, right of free The constitutional reviewing a determination first Arnett however, right. an absolute by trial said: amendment issues court and 1633, v. 134, Kennedy, 416 94 40 U.S. S.Ct. ‘“ * * * compelled to examine [W]e 977, denied 417 reh. L.Ed.2d U.S. 94 for the statements in ourselves issue (1974); Allen S.Ct. L.Ed.2d they are the circumstances under which Inc., Stores, Safeway P.2d * * * they or not made to see whether (Wyo.1985). principles are of a character which the turn first the constitutional We Amendment, adopted by the First duty It claims asserted Mekss. is our Due of the Fourteenth Process Clause and, the action of the Board if it review ” Connick, Amendment, protect.’ contrary found be constitutional n., 1684, 1691, 138, 150, n., 103 U.S. S.Ct. must the Board’s deci right, we set aside Florida, Pennekamp quoting 16-3-114(c)(ii)(B), W.S.1977. sion. Section 1029, 1031, L.Ed. The Personnel Review Board heard testi evidence, briefed mony, received may “Every person freely speak, write and

3. to the Constitution of The First Amendment pertinent provides, part: publish subjects, being responsible the United States on all * * * right; "Congress abridging all trials for law the abuse of that shall make no ** truth, libel, criminal, speech. *.” the freedom of when both civil good justifi- published intent and [for] Amendment to the Constitu- The Fourteenth defense, ends, able shall a sufficient provides: United States tion jury having right the facts to determine persons or naturalized in United “All born law, of the court.” and the under direction thereof, jurisdiction subject to the States and the United States and of are citizens of opening to Re- 6.In statements the Personnel they No State shall State wherein reside. Board, view both counsel framed basis any abridge enforce law which shall make or protected unpro- in terms of Mekss’ dismissal privileges of citizens of the or immunities speech. Board Counsel indicated that the tected States; any deprive any nor shall State United issues on the constitutional would be instructed life, liberty, property, person arguments during closing had after it law; and law deny any person process due nor hearing, At the end of the equal heard the evidence. jurisdiction protection of within its however, opportunity to waived their both sides the laws.” closing arguments to the Board. make 1, 20, the Constitution of the State § 5. Article Wyoming reads: following year, Supreme employer prevail Court of can still if it shows supplemented this con- preponderance the United States of the evidence that cept way: in this would have made the same decision re “ * * * raising gardless protected speech.” of the cases First Amend- [I]n tional marized veloped and refined to assist in the determi nation as to whether a these right impermissibly infringed upon the constitu States that address a from the our review of the action of the Personnel Review Board. We must public concern. [(10th Cir.1989)]. speech at issue touches on a matter of 146,103 Oklahoma “First, the court must decide pression.’ New York Times (1984). ion bidden intrusion on the field of free ex- whole record’ in order to make van, (1964)].” ment issues we have [710], at 728-729 ‘make an an employee. Recently, accept 494-95 appellate cases, of free judgment right Mekss relies balance United S.Ct. at Supreme S.Ct. these Schalk v. U.S. independent to free (10th Cir.1990): Bose City], 879 F.2d sequential speech. court 1949, 1958, [254], does not constitute a for- States, Inc., principles Corp. 1689; interest of the Connick, expression enjoyed by upon Court If it Gallemore, has an at repeatedly that test was sum [11 examination v. Consumers Un- Melton [v. public employee’s In the test has 284-286, a series of cases does, as employer has L.Ed.2d 686 466 U.S. obligation 461 U.S. at applicable ^[706] whether v.Co. Sulli- L.Ed.2d 502 the United course the court sure 906 F.2d held that been employ City at 713 S.Ct. ‘that de ed sures her failure to “whistle tion of and the subordination. The dination was based isfaction with the results of the tion. tary Sherman that Mekss was dismissed for in- tion vincing Mekss. She contacted the executive secre- second communication was initiated ment. That letter written to the Governor and other members morale, discriminatory employment practic- perception of conditions at the School with regard of the Board. That letter set forth Mekss’ es, lated, differentiate between two employment at the school. useful to us constitutionally protected right of free We are satisfied that this speech Mekss has Before free first is found of the Board and completed imposed by It was instances of the School. After that was the Board to conduct an established lines of speech. improper blower,” applying alleged mismanagement, poor infringed by comply argued following and the results deciding She contends calls constituted was instrumental use of Geisler. in the she is entitled to the expression by expressed that both the letter charge sequential Mekss’ circumven- her dismissal from disciplinary sequential corporal punish- separate, whether Mekss’ authority complaints investigation of insubor- released, that, her dissat- investiga- investiga- test, protect- Mekss. but re- test is letter mea- as a con- we highest protection. level of constitutional making ee in against statement We have reviewed this record detail as employer’s promoting interest ‘in the ef relating ficiency performs well the cases to the constitu- services it through employees.’ Pickering principles, its tional and we conclude Educ., 563, 568, expression 88 these two instances of are dif- 1731, 1735, S.Ct. 20 L.Ed.2d 811 justify separate ferent analysis. Third, preceding prerequisites if the with, agree accept, We met, speech protected, plaintiff “blowing contention that she was the whis expression must show her was a motivat anonymous tle” when she directed her let in employment factor the detrimental ter to the Board of Charities and Reform. Healthy City decision. Mount 274, 287, balancing rights “When of the Doyle, Dist. v. em S.Ct. 568, 576, (1977). ployee Finally, against employer, 50 L.Ed.2d 471 those of the an burden, plaintiff if the employee’s sustains this First Amendment interest is “Q. phone December he call around greater weight where entitled to 1st, give to it a date? exposing acting a whistle blower corruption. See Foster v. government had our first talk. “A. After we had * * * * * * (D.C.Cir. 1142, 1149 645 F.2d Ripley, 1981). expose im- that seeks to Speech * * * accept “Q. And refusal to dis- government proper operations * * * imposed, that’s ciplinary measures questions integrity governmental give the correct letter you her failure to clearly public in- officials concerns vital nutshell; put isn’t apology, to Smith, Conaway 853 F.2d terests.” it? Cir.1988). (10th “A. Yes. suggest to overstate the matter It would you nothing to add “Q. And have else “exposing government cor- Mekss was that you? do points; those two to se, ruption” per attempting she was to but “A. No. “improper operations” to draw attention And, sir, “Q. charge of circumvent- anony- We that the conclude School. authority is based ing established lines of highest letter should afforded the mous that she should upon your perception protection accord- level of constitutional brought had concerns that she have principles of applicable law. ance with the channels; correct? through proper is that anony Continuing to address Yes, yes. “A. letter, we, opin purposes of this mous for because, your perception, “Q. And ion, assume, deciding only for not, Is that cor- she was fired? she did that Mekss’ purpose opinion, of this rect? concern letter deals with a matter “A. Yes. making the state interest in and that her questions I That’s all the “[Counsel]: of the School outweighs the interest ment Mr. Geisler.” have of brings This preventing the statement. in the record to refute is no evidence There step in the constitutional the third us to testimony. Geisler's juncture, Mekss must At this analysis. establishing that her dismis- accept the burden the notice of stated in The reason motivating findings a “substantial or analysis letter was and an sal City Healthy Mt. her dismissal. Review Board factor” of the Personnel conclusions Education v. not dismissed persuade School District us that Mekss was U.S. letter. Mekss Doyle, writing anonymous for an testified, inference, contrary argues Geisler for a L.Ed.2d vigorously cross-examination, Mekss that he dismissed was not contrary inference but that letter, anonymous fact, but writing the the Personnel not for finder of adopted by the telephone for her calls Sherman no other evidence rather Since Board. Review comply subsequent refusal Geisler’s testi- and for her that refutes presented quote satisfy We burden disciplinary proceedings. mony, failed to Geisler Healthy. from the cross-examination Mt. under hearing: attorney at the argument, assume, for the sake If we up. me clear “Q. Excuse me. Let one of sev- letter was why reason you precise tell us Would contributing Mekss’ dismis- factors eral Regina Mekss was dismissed? sal, factually similar case Warner circumventing lines of authori- For “A. Md.App. City, 81 Ocean Town of agency guidelines, for ty, ignoring (1989), pertinent. War- becomes A.2d 160 discipline. refusing accept counsel officer, wrote an ner, City police an Ocean circumventing city And, sir, mayor estab- “Q. anonymous letter to authority, investigation would be of the new- urging lines of lished council Sherman, cor- Gary alleged unethi- police captain’s ly appointed call specific act? After Warner’s illegal That’s the activities. rect? cal disclosed, an administrative identity was “A. Yes. findings status, hearing board made of fact and tle blower” we first consider the “guilty” protection determined that Warner was level of constitutional afforded Upon juncture. review of at that insubordination. the ad- Mekss’ contentions are proceeding, premised upon perception her ministrative lower court re- anonymous “charges” telephone all but two of the five letter and the versed calls officer, indistinguishable against ways expressing were but did affirm the essentially Thus, the same board’s determination that the information. officer had they she concludes should be entitled to the appeal been insubordinate. The issues on same constitutional consideration. We appellate court do substantially were accept that contention. similar to those in this case. In marked contrast to the Warner, assertions set appellate

In court addressed letter, anonymous forth her Mekss did question the constitutional under the four- necessary degree. not have the same step test set forth above. The court noted personal knowledge investigation about the that the litigated issue had not been before justify her claimed “whistle blower” sta and, case, the administrative board like this making phone tus in her Hughes calls. See that issue was decided for the first time on Cir.1983), Whitmer, (8th 714 F.2d appeal. recognized The court the consider- rt. denied sub Hughes nom. ce importance discipline, harmony, able Hoffman, 465 U.S. loyalty in organization, a law enforcement presented L.Ed.2d 680 She no evi right and it concluded that Warner’s to free investigation dence that the results of the speech had not been violated. The lan- incomplete were inaccurate. While guage Maryland court especially personal knowledge Mekss had of those instructive: things she addressed in her significant think it that Lieutenant “[W]e letter, had, most, slight she at the only * * * legitimate Warner had access to personal knowledge of how the results of procedural airing mechanisms for his investigation interviews were tabulat grievances. appro- Had he utilized the argues ed. many eighteen She that as priate channels, of which he admits he employees of her agreed fellow the investi aware, brought he could have Major gation “whitewash,” awas but the fact alleged Crone’s light misconduct to with- investigation that the simply was flawed is exposing out himself to the risk of disci- speculation part. on her The results indi plinary regard, action. In this agree we employees cated that six “universally were Judge Eshenburg, judge, the trial dissatisfied” with conditions at the School. stated, in who a well reasoned discussion Regardless of what her employees fellow aspects on the constitutional of this case: told her about their comments to the inves ‘It was not the contents of the letter that tigators, simply posi was not in a demotion, resulted in rather [Warner’s] any tion to degree know with of reliable * * * the means employed in the [it was] certainty reported that the results were not publication letter’s and his admitted vio- evidence, correct. the absence of other lation Regulations.’ of Rules and War- speculation adequate is not to over punishment ner’s resulted from ‘the presumption come the investiga that the place, means and unusual manner in properly tion was reported. conducted and ” Warner, which he speak.’ chose to We conclude telephone that Mekss’ calls A.2d at 168. acquire Sherman did not automatic police The School here is much like the protection and, “whistle blower” in that Warner, department in and the same de- light, apply sequential we test summa- gree discipline, harmony, loyalty Schalk, rized in 906 F.2d 491. In determin- part employees of its justified is a protec- the extent of the constitutional expectation in order for the ac- Mekss, tion afforded we first consider complish its mission. speech whether the touches on a matter of Turning to Mekss’ claim that concern. Our evaluation of that “content, calls to Sherman question analysis deserve “whis- demands

]97 that, form, telephone the as onstrates before these calls context” of statement Connick, made, the whole record. the had revealed were issues that been raised 138, 146, If 1689. 461 U.S. had exam- in Mekss’ letter been on dis- speech the focuses content ined the record to have what discloses public wrongdoing, officials’ it is closing thorough comprehensive a inves- been likely a of to be considered matter more tigation. The results of summarized the Wichita, public City concern. Wulf of investigation by of the Board Charities and Cir.1989). (10th Conversely, 883 F.2d publicized. Reform had The tele- been protection to a speech is not entitled as up as phone calls Mekss made a follow point simply if air general matter the is to personal disagreement reflect her with the grievances purely personal of a nature. way investigation pursued was regard pertinent inquiry be- with its results. employee speaking as comes whether is The record also demonstrates that public a of citizen about matter concern process by investiga- interview which the of employee addressing or as an a matter standardized, pursued tion was was and the personal interest. Connick. questions were asked of School same each calls, telephone In relation to the employee. employees All of School recognized in Supreme United Court States involved; process were the interview was Connick, 461 U.S. 138 S.Ct. sample employees. not a The relia- 1684 at that: * “** process gener- bility validity of such a can- employee expression When given ally quite high, is and it should be fairly relating to not be considered weight. The results of that substantial social, political, any matter of other investigation every- not indicate that do community, government concern to the fact, School; thing perfect at the was enjoy officials should wide latitude report “universally noted six dissat- offices, managing their without intrusive Mekss, however, employees. isfied” did oversight judiciary by the in the name knowledge have firsthand of what oth- not First Amendment.” investigators. employees Cer- er told arguable It here as to these is whether they tainly, possibility exists re- upon matters of telephone calls touched entirely to ported something different public position is that the concern. Mekss’ they actually what told the Mekss than investigation in- product any state investigators.7 light in the Examined public stitution is a matter of concern since factors, is record to these there little has in an insti- the entire state an interest Mekss wanted indicate that the information argues, like the tution School. convey telephone to in the calls Sherman contrary, calls actually upon matter of touched legitimate did not involve a Sherman Connick, S.Ct. concern. The record dem- concern. matter openness, honesty, direct example communica- how different communications 7. An tion, understanding encourage- expertise, may & be made in different contexts shown my performance supervisor.” evaluations. One Mekss’ Performance Mekss’ own ment of complaints August was the lack of Report about the School [This dated 1988. Review unresponsiveness and the days communication Mekss eleven after she was written management employee This issue concerns. anonymous letter to the Board of wrote her times the course of was raised numerous during the same Charities Reform and Yet, performance hearing. eval- two formal period Girls’ School of time that hearing at her into evidence uations admitted going investigation on!] under the comments from Mekss contain these part were of the record These comments which heading "Employee Comments”: Board, even Review before Personnel hearing, though they discussed at that were not open atmosphere of communication "An high who, complaints from someone do not manifest degree accessibility my superiors harassment, context, intimi- perform in another dation, claimed my ability greatly enhanced has managerial openness. and total lack greatly appreciated.” Mekss’ Perform- and is signals sending mixed Mekss herself was Appraisal January dated ance respect job the condi- very generous. to her satisfaction and I not do “This evaluation my job tions at the School. could do as well if believe that I 198 contention,

1684. than Mekss’ purposes Other which conceded for of this case that the objectively supported, telephone is not calls public there is no involved a matter of concern, pursue we then step substantive evidence in the record the second in that analysis, investigation Pickering balance. results of the were inaccurate investigative process was The balance in Pickering described re- flawed.8 quires employee that the interests of an as the first constitutional hurdle. her burden and that the calls do meet the Education sion U.S. reh’g purely private interest. Hesse v. Board of F.2d 748 104 L.Ed.2d 442 point bring wrongdoing trict No. (1986). cert. denied 318 N.C. tion or even some other motive. pleasure with the results hart v. North Carolina School based on stead, record public 819 nied 483 U.S. law. Rankin v. 107 S.Ct. Whether N.C.App. as 1015, (1987). denied 490 U.S. of Mekss’ were On this concern is that to whether the It is deciding, 211, (7th Cir.1988), 2891, 109 S.Ct. public-spirited motivated speech equally 339, 1056, Township High One score, also, Cook ultimately 97 (1989). McPherson, telephone that Mekss did 342 S.E.2d 914 108 S.Ct. L.Ed.2d interpretation 1128, involves a matter of County, light phone unclear whether the 507, It cert. denied 489 concern 103 L.Ed.2d of the we will is a 349 S.Ed.2d 862 or to further a ais 109 S.Ct. 315, calls were not 31, calls was to 483 U.S. Illinois, personal School Dis question 97 L.Ed.2d close deci calls investiga See reh’g assume, but, of this satisfy (1986), Leip Arts, pass 190; 378, dis de in way: cussed this The United States Education U.S. at to its 563, efficiency trict lic concern be a citizen provider under government entity operating necessary in order to accommodate the Pickering 75 L.Ed.2d 708 dual role L.Ed.2d 811 U.S. es it matters of moting ployee], est of the balance between the interests of the [em- ployer ployee “The State as an 88 S.Ct. 205, employees. Pickering 563, 568, determination whether a performs through 384, commenting upon has as a of the Will 138, 140, balancing of the engaging State, v. Board efficiency public properly discharged 1731, weighed Township High citizen, (1968); public 88 S.Ct. County, employer public S.Ct. at as an public 20 L.Ed.2d 811 concern and the inter- Supreme test services and as a with the Connick v. of the service it speech requires commenting upon Illinois, employer, This in promoting Education, 2896-97, in employer its matters of public Rankin, [1734-35] balancing v. Board School Dis- employees.’ interests Court public performs 391 U.S. an em- Myers, servic- (1968). ^[1686] as a pub- pro- em- 483 dis- is ‘a requirements step of the first in the consti constraints of the First Amendment. On analysis tutional public a matter of hand, public employers the one are em- concern part, be involved. In this benefit ployers, concerned with the efficient of the doubt is afforded because Mekss operations; function of their review of requirements was constrained every personnel by pub- decision made Personnel presenting Review Board from could, run, employer long lic in the ham- concerning evidence in inaccuracies per performance public functions. vestigation. hand, We also note that there is no On the other ‘the threat of dismis- * * * argued record of whether this issue was sal employment from and decided Having potent district court. inhibiting speech.’ means of may presenting 8. The Personnel Review Board established a have been dissuaded from what- quite rather strict and narrow regarding forum for the ever evidence Mekss had inaccuracies parties argue improprieties product investiga- merits of Mekss’ dismissal. in the Still, clearly obligation Board stated that it was not inclined tion. counsel had the testimony attempt present to hear or examine evidence that did client to such evidence if it relevant, directly perceived tie timely to whether there was due cause and to make a proper pro- objection for dismissal and whether dismissal should the Board have refused its ad- Thus, cedures were followed. Mekss' counsel mission. staff, of the staff to U.S., S.Ct., and the need at to School Pickering, 391 upon co-workers is necessary rely to ensure with confidence Vigilance important authori- employers do not use The School has valid vital. discourse, employees maintaining discipline esprit to silence ty over interest hampers public functions not because Police corps. Crain de superiors disagree simply because Dept. but Metropolitan Police Com’rs of of employees’ speech.” the content of Louis, (8th with 920 F.2d 1402 Cir. City St. original.) in (Emphasis 1990); Hughes, 714 F.2d 1407. The chain- in applied by rule School of-command Appeals United for the The States Court designed to pro is and intended this case pertinent has described other Tenth Circuit very Perry City interest. v. balancing including: tect that considerations *“ * * (E.D.Mo.1988). Kinloch, F.Supp. 1339 680 impairs ‘Whether the statement uncertainty as suspicion If of co-workers or harmony or discipline by superiors present, factors is those co-workers, to trustworthiness im- among has a detrimental disruptive counterproductive. and are working relationships for pact on close is to establish a whole goal of the School personal loyalty and confidence which impedes perform- with individual role mod necessary, some environment residents; speaker’s duties or interferes for the not to demonstrate ance of the els regular operation of the enter- hypocrisy. with the distrust McPherson, 483 prise.’ U.S. v. Rankin factors, we hold that light of these 378, 388, S.Ct. 97 L.Ed.2d 107 directly telephone calls to Mekss’ Sherman (1987). also con- 315 The Rankin court authority ability to impaired Geisler’s manner, time, place of sidered discipline When Mekss told him the staff. as as the employee’s expression, well nothing call to Sherman had that her first dispute in which arose.” context School, promptly then do to with the Schalk, 906 F.2d at 496. again complain to about the called Sherman balancing of It conclusion that the is our deception there that was investigation, in with Mekss’ connection interests deliberate, untruth. if not an intentional Sherman, light to in the telephone calls and detrimen- Those calls did have a direct tips in of the School. Pickering, favor in on confidence Mekss’ impact tal Geisler’s institution, publicly-funded state School is It is true the School and to him. loyalty to providing charged education- and it is ability perform to her duties al, vocational, to and rehabilitative services affected, po- might not have been but re- girls. In some adolescent troubled regular interfering with of her calls tential institution, penal spects, may resemble a general- See operations is obvious. School stronger places a much em- the School but City, 879 City Oklahoma ly Melton v. positive aspects of rehabilita- phasis on the Cir.1989), (10th reh’g vacated F.2d 706 emphasis re- tion education. That 928 F.2d grounds on other and remanded atmosphere in institutional flected Cir.1991). (10th The School’s interest 920 endeav- administration which School working relationships maintaining good goal of the School maintain. One ored to public image and a stable the staff within that the has to teach its residents best been light weighs heavily of Picker- more meet the way problem solve a to repeatedly at- interest ing than Mekss’ init a direct and and deal with situation Sherman her views about tempting tell way; not endeavor circumvent honest Rankin, investigation. the results responsibility. A authority evade 378, 107 S.Ct. staff, impose trusting able to confidence by like that envisioned case is This intentions, their work- co-workers and Arnett, Supreme Court United States purpose, is an common essen- ing toward a discipline 1633. The 416 U.S. the attainment prerequisite to tial “at to Mekss was directed administered success. ultimate institutional goal and behavior, such, employee but at speech as cre- residents at The adolescent detrimental including speech, which danger potential physical [was] inherent ate an efficiency employing agency.” County, Commissioners Laramie Arnett, (Wyo.1983), at 1648. P.2d appeal U.S. S.Ct. remand after (1985); Department See Battiste v. 712 P.2d 331 By Social Ser- Toavs v. State & vices, Mich.App. Commission, 398 N.W.2d 447 Through Real Estate (Wyo.1981). We hold that the School’s dismissal P.2d 1172 Substantial evi permitted her actions Mekss is because dence this context means “such relevant managerial authority. might accept undermined Geisler’s evidence as a mind reasonable Length adequate unblemished support of service and an a conclusion.” justify open Compensation work record do not suffice to State ex rel. Workers’ Ohnstad, insubordination. A limited First Amend- (Wyo.1991); 802 P.2d 865 Shene ment interest in connection with involved County Sheridan School District field calls to Sherman does not (Wyo.1976),quot No. 544 P.2d 874 require Lindmier, that the tolerate this action from Wyo. Howard v. 67 expected reasonably which could be to dis- 214 Findings P.2d 740 of fact rupt operations, authority, if, undermine supported by are substantial evidence destroy working relationships. close preserved record, Be- from the evidence in the already cause actions premise have under- we can discern a rational for those mined, potential findings. and indeed enhanced the Wyo ANR Production Co. v. undermining, authority, Gas, ming (Wyo.1990); Geisler’s she Oil & 800 P.2d 492 balancing does not survive the test Employment Security re- Commission of quired by Leis, Pickering. Processors, Huber v. 704 Wyoming v. Western Gas (S.D.Ohio F.Supp. 1989). Ltd., 131 There is no (Wyo.1990). 786 P.2d 866 The second reason to aside step set the Personnel Review is a determination as to whether the Board’s decision because of a violation of by agency conclusions of law made are rights. Mekss’ First Amendment in accordance with law. Belle Fourche State, Pipeline (Wyo. Co. v. 766 P.2d 537 parties While the do not debate the 1988). Conclusions of are if law affirmed sufficiency of the decision of the Personnel they are in accord with Depart the law. record, Board and recognize Review we ment Revenue and Taxation State of of of duty regard. to be satisfied in that That Club, Wyoming Casper Legion v. Baseball duty 12.09, W.R.A.P., flows from Rule Inc., (Wyo.1989). 767 P.2d 608 If conclu 16-3-114(c), (July Repl.).9 W.S.1977 1990 § applica sions of law are not in accord with cases, duty Under our to review the rules, they ble are Employ corrected. First, process. record is a tandem we re ment Security Commission. view the record as a whole to determine agency’s findings review, accomplishing whether of fact are In our we are supported by substantial accept any evidence. Hold not bound to of the determina ing's Little County America v. Board tions of the district court and are not re- Section provides, part: Rule bility terpret sions, making shall decide all relevant "(c) sion and when § tion to the issues raised before the court’s review shall be limited to a determina- mented shall “The review 16-3-114(c).” To the extent shall be 12.09, W.R.A.P., provides, 16-3-114(c), and determine the pursuant conducted constitutional and pertinent part: confined to the record as terms the matters following [of presented, to Rule W.S.1977 an administrative necessary the court without a questions determinations, meaning 12.08, W.R.A.P., agency (July statutory provi- to make a deci- reviewing specified agency. 1990 action. pertinent applica- law, supple- action] Repl.), court jury in- case reviewed on the record of an hearing provided by "(E) "(D) privilege right; quired by thority "(B) Contrary tion or otherwise not in accordance with "(C) "(ii) tion, "(A) Arbitrary, capricious, shall parts court shall review the whole record or those reviewing Unsupported by In excess of Hold unlawful and set aside Without observance of be findings of it cited ^[******] or limitations or taken of the rule of or law; immunity; to constitutional and conclusions found to be: court shall: by statutory jurisdiction, substantial evidence in a statute." party an abuse of discre- lacking statutory and due account prejudicial procedure right, power, agency agency error. law; au- ac- re- agency’s were based on unwar- def actions quired afford those determinations instead, but, assumptions.” obligated are ranted or undeclared Jack- we erence directly as if it came son v. ex rel. appeal review the State Workers’ Division, v. agency. Wy Compensation Sellers 786 P.2d this court from Examiners, 16-3-110, Psychologist (Wyo.1990). W.S.1977 oming Board Section (Wyo.1987). is af supports proposition 739 P.2d Deference (July Repl.), of fact made by requiring forded to the determinations that: “ * * * agency and to the decisions of not Findings of if fact set forth in Ranch, Inc. v. the district court. Zezas statutory language, accompanied shall be Control, (Wyo. P.2d explicit statement of the by a concise and 1986). Palmer Board Trustees See underlying supporting facts the find- 1, 785 P.2d County School Disk No. Crook ings.” (Wyo.1990). rely We are entitled provision this statutory Our rule any agency upon and afford deference findings upon all demands basic facts evidence, and weighing we expertise proceeding in the material issues do disturb the determination findings of fact or con- which ultimate “clearly contrary to the agency unless it is Lane, 773 P.2d clusions based. FMC weight overwhelming evidence In (Wyo.1989). Zoning 163 Cook v. Compen State ex rel. record.” Workers’ Laramie, City Adjustment Brown, 830, (Wyo. 805 v. P.2d 833 sation 181, (Wyo.1989), 776 P.2d 185 we stated: 1991); Employment Security Commis an administrative “It is insufficient for 871, sion, quoting from 786 P.2d at South only fact agency to an ultimate state Wyoming west Rehabilitation Center conclusion, or con each ultimate fact but Employment Security Commission of thoroughly explained in clusion must be 918, (Wyo.1989). P.2d 921 Wyoming, 781 upon for a to determine what order court review, assigned to On burden each ultimate fact conclusion basis agen appellant to demonstrate that know the was reached. court must findings sup cy’s and conclusions are not Schrader, why.” 531 P.2d Geraud by ported substantial evidence. Westates 872, (Wyo.), 879 cert. denied sub nom. County Construction Co. v. Sheridan Education Associa River Indian Wind Trustees, 2, Ward, 904, District No. Board tion, School Inc. v. substantia] (Wyo.1986). If P.2d 1366 205, 134 46 L.Ed.2d found, two differ the fact that evidence 878, 874, Jackson, set forth P.2d we may from the conclusions be drawn ent of the rule: this statement holding that the not inhibit a evidence does surviving have held essential “We drawn an administrative conclusion record of a con- judicial review agency supported substantial evi contain such factual agency action tested Developers v. Public dence. Vandehei permit a to fol- findings court as would Wyoming, 790 Commission Service reasoning from the evi- agency’s low (Wyo.1990). P.2d eventual dentiary on record its facts (10] v. Oil and legal conclusions. Larsen requires degree of detail Our law ’n, 87, P.2d Comm 569 Conservation findings of fact and conclusions Gas (Wyo.1977); Powell v. Board agency. 90-91 made administrative law Trustees, County School District purposes of the Crook the fundamental One of (Wyo.1976). 550 P.2d Act is No. Procedure Wyoming Administrative that a contested Similarly, have held we issues involved that controverted assure provide, must hearing fully devel- case case will be any contested proceeding must doc- of that a finder of fact. record oped agency as before the ument, to the mak- sufficient information evi- of material and substantial “A record decision. Absent a reasonable reviewing ing of that a must created so dence information, agency decision such such factual can determine whether court arbitrary. whether, instead, Western must be set aside development occurred or Communications, incorporated ance. The Board five conclu Inc. v. Two- Radio sions, Inc., think that its first conclusion: Service, but we Way 718 P.2d Radio (Wyo.1986); Monahan v. Board disharmony created “1. Ms. Mekss Trustees, Elementary District School of the the function Girls’ (Wyo.1971). No. 486 P.2d and circumvented established compliance with stat- authority.” need for such strict lines of relating utory provisions to the content significant is the basis for the Board’s deci- agency largely record derives sion. One of the reasons stated con- from a need to ascertain whether notice of termination furnished to Mekss hearings actually provide tested case involved insubordination based cir- statutorily procedural protec- mandated cumventing authority. established lines of protec- process the due tions. To assure The first conclusion of the Board addresses [Wyoming Adminis- tions inherent in the this matter. Insubordination is cause for statutory Procedure trative Act’s] rules, according personnel dismissal effect, given this court scheme will be finding by factual the Board that requires compliance pro- those strict justify Mekss was insubordinate would provisions.” cedural dismissal in accordance with this conclu- sion.10 review, process judicial In the finding only We then examine general presumption no attaches to a find particular fact that relates to this conclu- specific requirements because Finding sion. No. 3 states: 16-3-110, W.S.1977, quoted above. If § “3. Ms. Mekss failed to exhaust the nor- any agency premised upon action is a deci personnel system options by taking mal pro sion entered without observance of the directly prior issues to Mr. Geisler to law, required by cedure decision must proceeding in the manner in which she FMC, held and set aside. unlawful did.” findings adequately P.2d 163. If the do not agency posi justification reflect the for the finding specifically This relates to insubor- adopted, tion that is then the case must be by dination Mekss and her circumvention agency requisite remanded to the so that authority. of established lines of Our ex- supplemental findings can be made. A de finding requires amination this a deter- comply cision that does not these re sufficiently mination as to whether it artic- subject being quirements is to attack as ulates the reasons for the Board’s affirma- arbitrary, capricious, contrary and to law. pursuant tion of Mekss’ dismissal to Supply

Mountain Fuel Co. v. Public Ser 16-3-110, W.S.1977, and, secondly, § Wyoming, vice Commission 662 P.2d supported by it is substantial evi- whether (Wyo.1983). Finding dence. It is our conclusion that statutory No. 3 is sufficient to meet the argument, In the course of her requirement set forth in the In statute. asserts that the decision of the Personnel Westates, 719 P.2d we said: Review Board that affirmed her dismissal perhaps perfec- “While not a model of foregoing by failed to meet the standards tion, findings by of fact the Board in incorporating specifically findings detailed sufficiently per- this case are definite to support to the ultimate facts and conclu action, judicial mit review of the Board’s contention, considering sions. this we they satisfy and the test of our earlier findings will scrutinize the and conclusions cases.” Personnel Board and of the Review arrive they single, finding at the determination as to whether are It follows that this viable fact, sufficiently support supported justify to an affirm- basic sufficient to one valid 10. We take tion Mekss’ dismissal. ming Personnel Rules in effect at the time of Reasons for judicial Chapter notice of the State of Discipline, XII, states: Discipline, Wyo- Sec- ployee "(vi) Insubordination: "(a) following An ^[******] for cause agency reasons: head including, may discipline an * * but not limited em- to, conclusion, Personnel contention that reason the justifies correct af- legally and Review Board affirmed Mekss’ dismissal dismissal. firming Mekss’ anonymous had was because she written requirement of sub- We then turn find letter. We do substantial evidence finding support stantial evidence the record to demonstrate that Mekss vio- guilty of insubordination that Mekss was obligation employer to ex- lated an personnel rules. the context personnel system options” haust “normal adequately that Mekss record discloses complaints calling Sherman with before administrative failed to exhaust available ques- investigation. is no about There procedures prior sending support tion that substantial evidence does making prior letter and Finding finding No. identifies completely We not calls to Sherman. Personnel the behavior relied on connoted the Board’s certain what is justify Review Board to dismissal based on personnel system op- to “normal reference insubordination. tions,” would understand this but we phrase to relate to face-to-face communica- modify do Conclusion 1 so that it We No. supervisory personnel tion with use read: should grievance proce- of traditional internal in circum- “Ms. Mekss was insubordinate question There no that all em- dures. is venting authority.” lines established repeatedly encouraged to ployees were Board, bring concerns to problems Geisler As drafted Conclusion No. administra- incorporated other members also had that Ms. Mekss cre- did not follow this re- disharmony Wy- tion staff. Mekss function of the ated Geisler, course, during and she also told finding oming Girls’ School. There no meetings Decem- their on November by the Personnel Review Board that fact attempts to contact Sher- conclusion, ber that her are not justifies this and we man School matters. Effec- did involve persuaded that substantial evidence governmental operation tive of a function supports the actual creation dis- record require honesty permits employer Schalk, harmony by 906 F.2d Mekss. See employees. In a loyalty from state We, therefore, the conclusion correct setting designed to ful- institutional our found in in accordance with rule law purposes, fil and educational rehabilitative Commission, 786 Security Employment harmony, efficiency honesty, loyalty, P.2d 866. critical. The desirable become even more corrected, this conclu- As modified modeling impres- role positive effect of sup- is sion the Personnel Review Board residents at the School becomes sionable finding ported by appropriate of fact necessary attribute for all em- vital and supported by evidence. that is substantial ployees. We understand Mekss’ at- justifies She had ac- It Mekss’ dismissal. tempts to draw a distinction between mat- procedures grievance internal avail- cess to underly- and the involving ters the School rules, personnel and she under the able School, ing investigation of the but testimony Her not use them. own chose argu- affect Mekss’ simply a semantic repeated knowledge Geisler’s discloses easy to see that Geisler ment. What is employ- efforts to invite and written verbal Mekss as interpret these actions could those comply did not with input, ee but she disloyal. dishonest and conclusion On the basis of our efforts. Finding supports earlier, substantial evidence anony As we have held justification for Conclu- No. speech in 3 which is qualifies protected as mous letter 1, modified, we hold it is sion No. manner in which was the context and calls, unnecessary the case to dis- to remand telephone as we also used. remand to Per- earlier, protect trict court for further similarly have held not for additional find- sonnel Review Board Finding Personnel Review No. 2 of the ed. adopted in letters, ings rule but and conclusions. Board does mention FMC, is satisfied. for 773 P.2d in the record support we find no case, tempt employee discipline raised in this to administer As the second issue progressive stages so as to seek cor- urges that the School violated ” * * * by failing pursue (Emphasis rective results. add- personnel state rules prior ed.) discipline levels of successive

upon bringing concerns about School knew of Geisler’s states: dismissal. Mekss finds sion of the Personnel Review argument plinary with the This record demonstrates Ms. Mekss.” Regulations ent, well-defined, “2. Mr. measures Geisler DAFC Conclusion in his emphasis and insistence prior did not Personnel Rules and application No. 2 of the deci- to his dismissal of progressive disci- support for this fully comply Board, that Mekss consist- opera- which good is such that other not dismiss a If served “(c) Dismissal. “(i) the nature and extent “Section 3. Types of previous disciplinary n ^[*] ! Dismissal of Permanent appropriate, of the service.” achieve ^[*] Sfc permanent employee n ^[*] corrective disciplinary (Emphasis agency Discipline. ^{[*] [*]} action has not results, Employees. ^[*] ‡ just head action is for the added.) cause Sfc ^[*] may if We affirm the reversal the dis or to that of other tions to his attention the Per trict court of Conclusion No. of sent memoranda administrators. Geisler sonnel Review Board which reads as fol specific to the staff and addressed remarks lows: relating importance of inter- to them fully comply

nal communication. November “2. Mr. Geisler did not On Personnel Rules and Geisler met with Mekss after her with DAFC Regulations application by telephone call to He then his consist- first Sherman. ent, well-defined, progressive had concerns disci- asked whether she about School, plinary prior measures to his dismissal of and she advised that she did not. respon- then reminded Mekss of her Ms. Mekss.” Geisler sibility complaints him to come to with pro- The Personnel Board did not Review concerns, he did not initiate other for- but findings support vide of fact to Conclusion disciplinary mal action. the record did No. 2. Our examination of develop support substantial evidence to After Mekss’ second call fully a conclusion that Geisler did not com- Sherman, met her on Decem- Geisler personnel ply with the rules because those impose discipline 1988 to for her ber explicitly grant authority to rules dismiss a meeting That and the fact that behavior. permanent employee flagrant behavior suspension ten-day issued a Geisler going through steps successive required apology Mekss to a letter of write reason, discipline. For this was not Geisler reasonably perceived discipli- could be aas obligated impose progressive discipline to nary “step” prior to dismissal. con- We Mekss, prior dismissing particularly in to clude that we need not decide whether such appropriate of her refusal to write an view discipline step” the satisfies “successive re- apology. The circumstances in this case personnel quirement under the rules be- justify summary to dismis- were sufficient reading plain cause a of those rules allows Mekss, repeated attempts after sal when to permanent for immediate dismissal of a Sherman, accept discipline contact failed to employee flagrant perti- for conduct. The that would have involved a reasonable let- XII, portion Chapter is found in Disci- nent apology. only ter of Her letter was a Rules, pline, Wyoming of Personnel State relating of the crusade to the continuation dismissal, in effect at the time of Mekss’ constitutionally that could not be School and it states: investigation protected once the had been Appro- 2. “Section Determination of accomplished. priate Discipline. “(a) should, in Agency except heads The last issue Mekss’ brief is behavior, standing was without flagrant employee cases at- whether School of 16-3-114(a), of the Personnel a contested case. Section appeal the decision W.S.1977; State, her the five Review Board that awarded Pritchard v. Division pay As Rehabilitation, months back and benefits. we have Depart- Vocational of noted, cross-appeal to took a Services, ment Health and Social of court from the decision the Per- district (1975).” Wyo., 540 P.2d Board, claiming that sonnel Review argues is The School that Pritchard pay arbitrary, capri- of the award back applicable It in this case. contends that cious, discretion, in an excess of abuse question standing Mekss raised the statutory authority, unsup- the Board’s argu- the first time before this court. This In ported by evidence. our substantial expeditiously ment can be resolved because judgment, this issue is controlled stat- standing essentially in this context ais holding ute and our in Pritchard v. jurisdictional concerning power issue State, Vocational Rehabilita- Division of the court a In to hear and decide case. tion, Department Health and Social context, standing any that can be raised at Services, (Wyo.1975). In 540 P.2d judicial proceeding. time in a Pritchard, analyzed statutory we argues The School then that once Mekss “person” light “agency” terms review, petitioned for the School became a Wyoming the definitions in the Administra- aggrieved proper party. The State agen- tive Procedure Act. that an We held endeavors to avoid the definitional barrier cy right appeal is an adverse court, light Wyoming decision to the district Pritchard and the administrative saying: arguing Act Administrative Procedure should to allow Pritchard be modified we reach is “The conclusion here bot- Although agency cross-appeal. an plain English language tomed in the presents argu- State concise and forceful reading statutes of the rules and represents weight regard, recog- ment in must overwhelming it still authority province under statutes and rules identi- nized that it is within and, cal legislature necessary; with or similar to our Administrative if to consider 72.1, and Rule Procedure Act W.R.C.P. agency redefine whether an administrative

may appeal cross-appeal to the district “ * * * passing We note in that there is no court. ‘agency’ given specific an is [I]f agency right inhibition an courts, right appeal such a appeal an adverse decision from district grant legisla- power within the Safety Supreme court to the Court. See ture and must be honored. But there Services, Employment Medical Inc. v. Se- applicable appeal procedure must be an Wyoming, 724 P.2d curity Commission of spelled It out the statute. cannot be view, (Wyo.1986). our Pritchard and, here, where the statute inferred Proce- and the Administrative specifically agency’s right an excludes dure Act be construed to inhibit should question appeal, any there cannot be but at cross-appeals brought by agency agency enjoys appellate no such appeal district court level like direct (Emphasis original.) privileges.” inhibited. Pritchard, 540 P.2d v. Em- Hupp Ultimately, argues This rule was reiterated the School ployment Security Wyo- Commission was without au- Personnel Review Board (Wyo.1986), ming, pay- 715 P.2d n. thority jurisdiction to order the we stated: when ment from the state trea- funds argues sury. The State that the remunera- bring ap- an agency itself cannot “The by the violates state tion “ordered” Board court because it peal to the district Wyoming adversely personnel rules the constitu- aggrieved affected ‘person logic, in tion.11 As a matter of the State by agency in a final decision of fact XIII, rely Chapter Appellees Grievances Rules: 11. Wyoming Appeals, State of Personnel that,

presents proposition premise discharge. the if the Person- as a for a We valid Review Board found evi- there nel substantial hold that was no violation of the state termination, justify by School, then personnel dence rules the we af- of remuneration antithetical to the award firm order of the district court that discharge. Certainly, its of her affirmation affirmed decision of the Re- Personnel may good this contention deal of have in turn approving view Board the dismissal merit. of Mekss the School. that We reverse portion the order of the court district question doWe not need to decide that that reversed award of remuneration case, application this however. The of the ground on the that the district court was rule in Pritchard leads to a conclusion that jurisdiction cross-appeal without over the standing did not have to cross- by the School. appeal to the district that rea- court. For son, jurisdic- district court was without part part. Affirmed reversed adjudicate presented by tion to the issues cross-appeal. CARDINE, J., specially files a concurring opinion.

The School is not recourse. A conclusion that Review Personnel URBIGKIT, C.J., dissenting files a pay award of Board’s five months back GOLDEN, J., opinion which joins. pro- cannot in this benefits be addressed CARDINE, Justice, ceeding require does not to make specially the State If payment. pay, concurring. the State refuses to or, could sue for money alterna- opinion I in the concur of the af- court tively, declaratory the School could seek a firming dismissal I appellant. con- judgment respect authority with cur also in the reversal of the district court the Personnel Review to “order” denying appellant pay order five months’ remuneration. Since we conclude that the personnel awarded review board court did jurisdiction district not have over precedent because of established issue, we reverse portion that State, Pritchard Div. Re- Vocational court district order that reverses the award habilitation, Dep’t Health and Social pay. of back Serv., must, (Wyo.1975). P.2d 523 I summation, however, express my opinion we hold Mekss’ con- there is right of free speech logical stitutional was not no sound reason denying respect with infringed any Wyoming right matter of appeal. State of The present concern when she dismissed state law makes board final a position bookkeeper against from as a at the decision State no matter how recognized wrong We have may School. her constitu- absurd or possible be. It is tionally protected right speech of free that in the future the be the may State appropri- the extent it was exercised victim of an unwarranted multimillion dol- but, ately respect powerless to those actions lar award and to do other than constitutionally us, do not manifest a pay. which When that case comes before we right, protected approved pressed we have their use will be hard rule of continue the they for whether "(e) Hearing Authority Purpose and Authori- ty- dismissal. cide, at "(i) mine "Section the dismissal under the dismissal fairly based whether (cid:127)k hearing purpose the and reasonable ^[*] Dismissal allegations are true there exists Hearing Authority all of the evidence ^[*] upon Appeals. and, Personnel made in ^[*] hearing good constitute no if true, ^[*] cause for the other is to deter- support Rules. produced shall whether grounds ^[*] basis, de- of Appellees warrant drawn suance of law.” islature, sury only " * * * [MJoney er and recommendations are not reverse the dismissal Personnel sis “(ii) personnel added.) The also find and in Hearing on Rules and State Constitution which appropriations actions by no case shall be support Authority so and/or proper long otherwise than paid in Article Statutes." made recommend shall affirm or out officer states the decisions conflict with of by 3, 35, (Empha- the trea- § the part: pur- oth- leg-

207 recognized Although whistleblowers will legislature Perhaps the Pritchard. pro- our democratic a element of the hard as “vital of the law before at state look minimum, system serving early-warning I would “an along. At cess” as a comes case by aggrieved deception within “person” against fraud and when the hold that against appeal, reprisals whistle- government,” initiates an decision the board’s respond to E. may “swift and harsh.” is then court are often State blowers Devine, or otherwise. appeal cross-claim T. The Government’s Slavin Whistleblowers, ABA 18 War on Secret Justice, dissenting, URBIGKIT, Chief 1991). 12, 15, (Spring Public 36 Barrister GOLDEN, Justice, joins. with whom fear employees speak out should now who jobs, salary they lose their forfeit will INTRODUCTION increases, promotions. When or be denied employee termination public a self-imposed This is consequences, faced with such discharged from Regina Mekss was prudent case. censorship is often the most Girls’ employment with the her is censorship of self-imposed This choice. facility) be- (a juvenile confinement mil- only to the consequence not profound 1 chain she went outside School’s cause government, for the but who work lions call to the telephone of command a interest may who have an also Chari- of Board of Secretary Executive unexpressed views. See hearing their challenge the sufficien- and Reform to ties Massaro, Silences: Freedom Significant reports investigation into cy Board’s Workplace, Public Speech in the Sector institution. problems at the management (1987). Chafee Professor 61 S.Cal.L.Rev. char- Violating the chain of command has observed: justifica- as insubordination acterized state, federal, and mu- “The number by the School.. for her dismissal tion part of employees is a substantial nicipal that her dismissal does This court holds working Add workmen population. First Amendment violate the contracts government in factories with because the Constitution United States teaching universities professors maintaining discipline School’s “interest grant government a R.O.T.C. or ” right outweighs esprit corps de assigned unit or an for research scientific her efforts speech. Because to freedom hardly Navy, and Army or the from call a matter addressed and the If millions of Ameri- is out. anybody left adversely did not public concern and assem- speech and freedom of cans lose operation of either the School affect the earning living, mere act of bly Board, I dissent. mock- Amendment becomes the First ery.” again is demonstrating that By risk, this whistleblow- messenger who at 6 n. 15 Massaro, supra, 61 S.Cal.L.Rev. my of either not suit sense er case does Chafee, Liber- Blessings (quoting Z. justification approve

justice or (2d 1956)). ed. ty 94 As public employment. from termination in dis- Thurgood Marshall observed Justice RIGHT TO CONSTITUTIONAL from, of, discharge sent, denial FREE SPEECH any citi- “a blow to serious employment * * * the law has twenty years, than For more something [wjhen as valuable zen governmen that a stake, firmly established been work is at opportunity to employment entity condition cannot tal may some citizens government not reward employee’s infringes any limitation that demonstrating that and not others in free protected interest constitutionally equitable.” are fair and actions its Myers, Roth, expression. Connick See 408 dom Colleges v. Regents State 138, 146, 103 S.Ct. 2701, 2715, U.S. U.S. (1983) Galle and Schalk L.Ed.2d (1972). L.Ed.2d Discharge Retaliatory Westman, statistics, ing: The Law See, Whistleblow- D. more, (10th Cir.1990). 906 F.2d 491 I Although disagree The majority the impermissibly School Mekss’ suspect violated con anonymous that the letter was right speak stitutional on matters of a motivating substantial or factor public concern it her dismissal, when fired for ex Mekss’ the record shows that the pressing opinions views the supervisor at the that School testified he Secretary. Board and its Executive did not writing dismiss Mekss for the anon- Schalk, 906 F.2d 491. ymous letter, “circumventing but for estab- authority” lished of by making lines the SEQUENTIAL THE TEST telephone one call to the Executive Secre- tary majority of the Board. The majority correctly This a modified adopts sequen- the tial Personnel test to determine the Review Board’s Conclusion whether School’s No. 1 impermissibly action of to state that “Ms. infringed dismissal Mekss was insu- upon protected circumventing Mekss’ bordinate constitutionally established right authority”, lines of speech, recently thereby accepting free summa- the supervisor's analysis testimony rized Schalk. In its that appli- Mekss was not test, sequential writing anonymous cation the dismissed the majority the letter distinguishes separate making but rather for telephone two call. I instances of will apply sequential communication initiated by Mekss: test to the tele- phone being call to first demonstrate that letter written to impermissibly infringed right other Governor members of the Board, speech by dismissing and the a free being telephone second her for mak- telephone call Secretary Pickering Executive that call. regarding Township Board Board Ed. investigation.2 High School For 205, purposes test, Illinois, applying Dist. Will majority County, 391 U.S. assumes, 563, 1731, (1968). deciding, that each in- S.Ct. 20 L.Ed.2d 811 Perry Sindermann, See stance communication a also addressed mat- 408 U.S. 2694, public (1972), ter concern. S.Ct. 33 L.Ed.2d 570 professor’s which that a college public held THE ANONYMOUS LETTER Regent’s opposi- criticism of the proposal tion to college a that the be elevat- majority accepts Mekss’ contention four-year ed to status was constitutionally the anonymous that letter constituted protected speech public about matter of whistleblowing speech and that should be Therefore, unnecessary concern. I find it given the highest level of constitutional to further address anony- the matter of the protection. agrees It further with Mekss mous letter. that her in making interest the statement outweighed the interest of the School in stifling speech. However, majority PUBLIC CONCERN ANALYSIS

then concludes that she failed to meet her proving burden of the letter Supreme was a The United States Court motivating Connick, substantial in her factor dis- 461 U.S. 103 S.Ct. 1684 held Healthy City missal. Mt. School Dist. public employee’s Bd. work-related v. Doyle, speech Ed. covered the First Amend of 568, L.Ed.2d ment unless it addresses matter of clearly record shows get right that the "she should side or [the] Sherman, get Gary call Mekss to K. Executive out.” Board, Secretary of the was the result of a events, Subsequent to the occurrence of these suggestion Kathy Karpan, Secretary from Ms. and, superintendent facility retired State, who was a member of the Board date, a later the institution itself was transferred employed. whom Sherman was Mekss fol- (confinement) Depart- from the Board suggestion lowed that and was then terminated. (social Family ment of Services welfare and superficiality The factual and obviousness of family support). No will one ever know how subject hardly question. this case Notes of much contribution to benefit this one director, facility Superintendent strong-willed the ler, Jack employee may actually Geis- have apparent warning by reveal Sherman to made.

209 Wichita, 1986)). City also v. workplace. See disrupt not the and will concern Wulf of 842, (10th Cir.1989) 857 and Cona determining in 883 F.2d Thus, inquiry the threshold (10th 789, Smith, F.2d 796-97 employer’s way em 853 governmental whether Cir.1988). the First violates ployment decision adversely affected rights of an Amendment that justifies my conclusion This record speech at issue the employee whether telephone public the call was made as as constitut ‘fairly “may be characterized employee speaking as a citizen and did ” public concern.’ speech on a matter public a matter of concern. indeed address 384, 378, McPherson, 483 U.S. Rankin v. 2891; Rankin, 378, 107 483 U.S. S.Ct. Con 315, 2891, 2897, reh’g L.Ed.2d 97 107 S.Ct. nick, 138, 461 U.S. 103 S.Ct. 1684. It was 31, 1056, 97 108 S.Ct. 483 U.S. denied directly sufficiency the addressed Connick, (1987) 461 (quoting L.Ed.2d 819 investigation which was a function and 1690). 146, 103 Speech on a at at S.Ct. U.S. duty nothing of the Board. Mekss had generally de public concern is matter of by airing her concerns. personal gain “fairly considered as relat speech fined as the education improve Her motive was to social, political, any matter of or ing to clientele and treatment of the institutional ** community to the other concern working conditions of improve and to 146, 103 1690, Connick, at S.Ct. at 461 U.S. perspective, employees. From her speech employee “as an contrast reasons to view the Mekss had sufficient * * personal interest *.” only matters inadequate investigation superficial Thus, 147, at 1690. at 103 S.Ct. Id. reported had and what she because what out a inquiry is to weed purpose reported had not she others had believed employee speech which range narrow sufficiently or considered been documented purely disputes and is personal addresses report. official protection. entitled to First Amendment not statements, true, if of her The content 992, (4th F.2d 998 Berger Battaglia, 779 (or School) was suggest the Board that Cir.1985), 106 cert. denied discharging This properly its duties. (1986). 720 90 L.Ed.2d S.Ct. “[sjpeech category into the falls speech employee’s address “Whether an expose improper operation of the seeks to public must be es a matter concern integrity of questions the government or content, con by the form and determined “clearly con- officials” which governmental statement, given as revealed text of a Conaway, vital interests.” cerns Connick, 461 record.” U.S. the whole 853 F.2d at 797. 147-48, inquiry at 1690. This erroneously majority concludes that the content on “the extent to which focuses issues her call addressed because speech employee was calculated had discussed been inefficiency wrongdoing or oth disclose subsequent investigation, and the letter part governmen er malfeasance on part any on her was further discussion conduct of their official tal officials in the personal grievance or com- of a the nature Hutchinson, 847 City duties.” Koch v. Connick, 138, 103 S.Ct. plaint. U.S. Cir.), 1436, 1445(10th cert. denied F.2d recognize that majority fails to 1684. The L.Ed.2d 250 S.Ct. U.S. “ did not address speech juncture at this is on the role ‘The focus se, per but operation of the School advancing particular employee has manner which rather the Board and the public citi of concerned expressions: that investigation into mat- they conducted their zen, informing the state To substanti- concerning the School. ters discharging its properly institution is not ** investigation view that ate Mekss' *; merely employee, as an duties necessarily required that she inadequate policies or only internal concerned made she had specific statements reiterate only to practices which are relevance ” of course re- investigators, which Id. at institution.’ employees of that operation of about the her concerns flected Public (quoting v. Dardanelle Cox resulting (8th Her concerns the institution. Disk, Cir. 790 F.2d fairly be accurately employee knowingly recklessly statements cannot or or made merely statements, personal characterized as com- false his criticism could not plaints concerning policies internal and furnish a lawful basis dismissal. Id. at practices only 563, of relevance to Mekss as an 1176. Pickering, See also 88 Connick, 148, employee. 461 at U.S. 103 S.Ct. 1731. Cox, 1690;

S.Ct. at 790 at 673. F.2d majority The also determines the argument, assuming speech For the sake of did not on a of public touch matter telephone purely the part call was critical of the concern in because Mekss did not have of personal not critical the Board’s knowledge inves sufficient the in- about tigation, it vestigation. would still touch on a matter of It is true she did not know essentially concern for the same However, rea how the results were tabulated. majority sons the the anony necessary concludes that it is not that she have intimate mous letter touched a matter of knowledge investigation of how the was 789; Conaway, concern.3 853 speech F.2d before protected Wren conducted (10th Cir.1986), Spurlock, by 798 F.2d 1313 provided the courts. The courts have 1085, 1287, protection cert. 479 denied U.S. 107 S.Ct. even though speaker had no (1987). 94 L.Ed.2d 145 knowledge firsthand of reported inci- Hughes Whitmer, dents. 1407, 714 F.2d points out, majority As the the record cert, (8th Cir.1983), 1423 denied U.S. support does not the veracity of Mekss’ 104 S.Ct. 79 L.Ed.2d 680 permitted concerns as she was not present concerning evidence in inquiry inaccuracies The next is whether the commu- investigation Personnel disrupted Review nication workplace. The Board. Whether her concerns were well United Supreme States Court in Givhan v. significant is not strong Disk, founded since the Western Line Consol. School protecting in type speech interest of U.S. 58 L.Ed.2d 619 (1979) determines that the whistleblower need not private held that a teacher’s series of absolutely be protected by accurate to be supervisor regard- communications to her court, ing courts. This Trust- racial discrimination the school was ees, County protected Laramie speech. School Disk No. 1 v. The court noted that Spiegel, (Wyo.1976), P.2d when employee held expresses grievance a that the school district erred in discharging private meeting, a courts can consider the time, its making publish- tenured teacher for place, and manner of the confronta- ing statements critical the school’s tion in evaluating ad- it impeded whether insti- generally. ministrator and of schools efficiency. This tutional at 415 Id. n. S.Ct. proof court concluded that absent that the at 696 It speech n. would follow that judiciary, requirement presented 3. The Directly to confine sequence fe- first juveniles, high per- male a has interest in the mismanagement. these events was contention formance of this institution with no other facili- sequence The question second invoked the Lusk, ty except prison the women’s mismanagement. Nothing whitewash something available when done must be provided permits justifies in this record or de- controversy consequently the individual. This termination whether either or were both involved one available state institution for unjustified, unprincipled, factually result of an judicial commitment the uncontrolled or activity employee, untrue malicious or criminally juvenile Wulf, inclined females. just cover-up a where the whistleblower is ter- Nothing F.2d 842. in this record shows that the problems minated so that will not be uncovered judiciary performance agency was asked about publicly considered. when the Personnel Review Board rendered the brief, Attachments to Mekss' which consisted employee. adverse The decision issue of contemporary news stories from a statewide performance assigned institutional its within newspaper, by were attacked motion to strike unquestionable importance mission to Attorney General’s office. The motion managerial got ego state right, lost in "I am of this sustained order court determin- up” syndrome. shut record real- Casper that "various news articles from the istically provides compelling no evidence to disregard- Star-Tribune stricken shall be employee right demonstrate that this was either wrong employee ed about the court.” the substance of con- facility’s operation. cerns for the basic analogizes the School to majority away workplace, such from the that occurs importance of stressed the police force and Executive telephone call to the Mekss’ loyalty harmony, law discipline, significant poses an even less Secretary, organization and holds that enforcement efficiency authority threat to Executive calls personal confron- private than a institution “directly impaired Secretary of the Board Likewise, the supervisor. with a tation authority ability discipline and Geisler’s is insufficient that there majority concedes had “direct and detrimen- the staff” and disrup- support a in the record to evidence impact in Mekss’ tal on Geisler’s confidence workplace. tion in the loyalty to the him.” How- School and to ever, it the Personnel Review then modifies TEST BALANCING THE PICKERING by eliminating the con- Board’s conclusions disharmony Mekss created clusion that is to Pickering of the test The function stating, of the “we the function school of the between the interests “balance [em- persuaded evidence are not that substantial citizen, commenting as a ployee], supports the actual creation in the record the interest public concern and matters disharmony by Mekss.” promoting State, employer, in of the as an Appeals ad- Tenth Court of Circuit per- services it efficiency public of the disruption of the work- dresses issue through employees.” Pickering, forms its F.2d at ing Conaway, 853 environment 568, at at 1734-35. Bal- 391 U.S. 797-98: competing em- ancing interests of the relationship Disruptions working in the requires employer consider- ployee and “ Conaway supervisors, his between impairs ‘whether the statement ation office, general disharmony in the harmony among by superiors or discipline an em consequences when foreseeable impact coworkers, on has a detrimental of co ployee reports improper activities per- relationships for which working close supervisors. recognize, or We workers necessary, loyalty sonal and confidence are concurring in his as did Justice Powell speak- impedes performance of or Rankin, opinion public employ “that a regular duties or interferes with er’s maintain the authority to er must have ” enterprise.’ Wulf, 883 operation of the integrity of his efficiency well as the Rankin, (quoting 483 U.S. at F.2d at 861 *. Rankin, 2899 n. S.Ct. at office.” 107 2899). 388, Picker- 107 S.Ct. at See also however, the vital recognize, We also 570-73, 88 S.Ct. at 1735- ing, integrity public has interest 37. govern their who administrate those Norton, justice 732 F.2d determining that the scales Brockell ment. tip case, cational, favor vocational and rehabilitative majority relied public institution upon the edu- for this na- ^[664] employee’s whistle anomalous to at 668. [ (8th hold that because blowing Cir.1984) might jeop ] It would or tar harmony the office ardize provided to the trou- of the services ture integrity department, nish girls combined with its bled adolescent out on his speak not him to will allow law important interest in maintain- “valid and or potential improprieties perception of corps.” The discipline esprit de ing Porter v. corruption. department See the chain of command majority concludes 770, (5th F.2d 773 Cir. 592 Califano, protect interest adopted rule was 1979). violating of com- the chain and that mand, to dismiss just had cause Pickering the School under Another consideration grounds of in- employment with the speech from interfered whether However, “[pjhrases job responsibili- like daily performance subordination. of her It should F.2d at ‘esprit corps’ Conaway, de or ‘insubordination’ 853 ties. em- a valued Mekss was deference judges lull into uncritical uncontested discharge Massaro, time of her up to the ployee su- public employers’ decisions.” consistently eval- performance was job at 68. pra, 61 S.Cal.L.Rev. Furthermore, good uated as excellent. held that enforcement chain-of- “[t]he [a to an Pickering, danger agency’s against under rule employee an seek command] employee’s successful function due to very superior to criticize the empow speech the employee is minimal where ered to employees’ complaints] review [the confidential, policy making serves no impermissibly would chill first amendment Rankin, role. contact U.S. rights. Siebenmann, Atcherson v. 107 S.Ct. 2891. Mekss worked as a fiscal (8th Cir.1979).” F.2d 1063 n. 5 Broc control officer and served in no confiden- Norton, (8th kell v. 732 F.2d Cir. tial, policy making contact role 1984). Whitaker, also Knapp See posed a minimal threat therefore (7th Cir.), F.2d 827 cert. denied 474 U.S. smooth function of the Her re- School. (1985) S.Ct. L.Ed.2d 29 perform- marks did not interfere with the Anderson v. Central Point School Disk ance ability of her duties nor the of her (9th Cir.1984), No. 746 F.2d 505 uphold perform co-workers to their duties. ing the injunction barring lower court’s en any policy prohibits forcement which of the was dismissed for content of direct communication teachers on mat speech. “Vigilance necessary her is to en- public ters of concern with members of the public employers sure that do not use au- school board. thority employees discourse, over to silence hampers public not it because functions but In a employee case where an was disci- simply superiors disagree because with the plined for government depart- violation of a employees’ Rankin, speech.” content of ment’s policy by “chain-of-command” (emphasis U.S. at S.Ct. at 2897 public speaking meeting at a of the coun- added). She would not have been dis- ty’s government board about deficiencies in circumventing missed for the lines of au- department, the the Third Circuit Court of thority had she contacted the Board with in Appeals Albanese, said Czurlanis v. praise investigation for their or to com- (3d Cir.1983): F.2d mend operation. the School’s policy compel A public which would em- ployees route complaints poor to about majority has determined that the departmental practices the very to offi- manner of Mekss’ communication violated responsible practices cials those of major- School’schain command. The impermissibly speech. would chill such ity, upholding dismissal, in places * * * It deter blowing” would “whistle emphasis undue on again, Once issue. by public employees public on matters of majority fails to recognize that her deprive concern. It would speech juncture at this not did address the general its partic- elected officials in se, operation per of School but rather important ular of information about the the Board and the they manner which functioning government departments. of investigation conducted their into matters “efficiency We do not read the of concerning Therefore, the School. it would services” factor to in referred wholly Pickering inappropriate have been for Mekss to to extend a chain-of-command policy any to citizen address concerns about interpreted applied by the defen- the investigation through the established dants. authority lines of at the School. She had a

criticism of Board directly and went to post-Connick See also the case of Jurgen Further, directly Board. she went to Va., County, sen v. 745 F.2d 868 Fairfax Secretary upon Executive recom- (4th Cir.1984), Butzner, J., dissenting. State, the Secretary Kathy mendation of of Finally, Mekss has the burden of show- Karpan. speech that her was a substantial or Eighth Appeals, Circuit motivating Court factor her dismissal upholding right police department of a prima School to establish a facie case. dispatcher anonymously report, Doyle, 576; outside 97 S.Ct. at chain-of-command, the department's Conaway, F.2d at pri- 795. Once her perceived police officer, established, misconduct of a ma facie case the burden 1990) emphatically it motivated School to show was not shifts then dismissal, employment manage if motivating in the that it same concern for factor right employment unprincipled ment has an to attack terminated her would have 857; Koch, non-conforming performance, Wulf, 883 883 F.2d at anyway. Wulf, “disloyal the F.2d as “insubordination” or F.2d at 1440 n. 11. Because both ty.” History singu no doubt that a and the Personnel Review Board leaves empires lar employee’s protected conduct as cause of destruction cite the specific governments national has one of the acts insubordination followed dismissal, necessary “three blind mice” causing syndrome with dis regard message analyze party carried their and execution of the whether either messenger. Equally apparent from this proof. burden decision, government we retell state em Perhaps motivating factor another ployees: “Ignore agency problems or the affect her Mekss’ dismissal was “insub- management only misconduct since the one ego as illus- ordination” had Geisler’s probably you.” will be fired Com involving by the incident the “letter trated however, pare, the current Tenth Circuit apology.” In order to resolve their dis- Appeals Court decision Considine attempt impose pute and as an disci- County County Com’rs presented pline, Geisler Mekss with three Colo., Adams, (10th 910 F.2d 695 State of dismissal, writing resignation, options: Cir.1990). apology. Responsively, opted she letter of Attacking whistleblowers where a sin- However, apology. the letter to draft purpose improve government cere is the unacceptable promptly deemed it Geisler goal by subterfuge of claimed dishar- because, although apologized, she she did inevitably re- mony or insubordination will not recant her earlier criticisms.- irresponsible government and sult bad spoke public aon matter of con- Leonard, management. Like 788 P.2d interests, as cern. Her First Amendment State, Doidge and Bd. Charities citizen, outweighed any slight impairment Reform, (Wyo.1990), 789 P.2d 880 Ur- operation in the efficient and harmonious J., dissenting, separate em- bigkit, we state Pickering, School. ployees process due and their consti- from public employee A should S.Ct. 1731. have Schalk, 491, since, F.2d rights, tutional right speak on matters of rights, exercise of those we then being discharged. fear of concern without justify employment termination. 1684; Connick, 461 U.S. again This case demonstrates use Schalk, good 906 F.2d 491. She was a disharmony the dual foot soldiers employee and the state has an interest non-conformity prison become who then Competent retaining employees. such against con- guard bothersome wardens management have able to ad- should been by denying the troubling criticism duct any insubor- dress her concerns and control right to employee his or her constitutional (almost summarily) dinate behavior without speak opera- its government out about dismissing her. Under the circumstances tion. case, neither fair of this termination was avail- nor the least restrictive alternative Accordingly, I dissent. government’s vio-

able to School. DENYING PETITION employee clearly dissent is ORDER lent reaction to FOR REHEARING justified in this case. came on before the court oppressive more mes This case There is an even Rehearing for and Brief public employee the Petition sage danger for the Appellant’s Petition for Rehear- Support of about the services which who concerned ing filed on June behalf being provided by or her herein his court, re- having Appellant, and the part and dis agency. concurrence record, file, opinion of viewed the part in Leonard v. Coun sent in Converse court, Rehearing and (Wyo. the Petition for No. P.2d ty School Disk Support Appellant’s the Brief Petition Rehearing, having carefully con- therein, presented

sidered matters Rehearing

finds that the Petition for therefore, denied, it,

should for Rehear-

ORDERED that the Petition be, is, hereby denied. the same GOLDEN, J.,

URBIGKIT, C.J., and grant Rehearing.

would the Petition for

ALLIED-SIGNAL, INC., a Delaware

Corporation, (Petitioner), Appellant

The WYOMING STATE OF BOARD

EQUALIZATION, Appellee

(Respondent).

No. 90-97.

Supreme Wyoming. Court of

June

Case Details

Case Name: Mekss v. Wyoming Girls' School

Court Name: Wyoming Supreme Court

Date Published: Jun 12, 1991

Citation: 813 P.2d 185

Docket Number: 89-235

Court Abbreviation: Wyo.