Miller, James E. v. Jones, Arthur L.Miller, James E. v. Jones, Arthur L.
I. BACKGROUND
The facts of this case are not in dispute, and due to the limited nature of the appeal we focus on the events surrounding the plaintiff‘s speech. James Miller is a former officer with the Milwaukee Police Department (MPD) who was transferred from the Community Services Division (CSD) to patrol duty on May 27, 2003. Miller was assigned to the Community Services Division in 1992 and spent eleven years working with the Police Athletic League (PAL). PAL provides educational and recreational activities for young people between the ages of five and eighteen. These activities are staffed by Milwaukee police officers, such as Miller, who provide their services free of charge. Other than this in-kind labor, PAL receives no funding from the Police Department and is organized as a non-profit corporation under Wisconsin state law. The MPD benefits from the opportunity to interact with community youths in an indirect law enforcement capacity. PAL‘s Board of Directors is staffed by both private citizens and members of the MPD, including the Chief of Police.
While working with PAL, Miller served in a number of different roles. Following a formal selection process in 1992, he was chosen by the Board to serve as the Executive Director. The Executive Director is the chief operating officer of the organization and, subject to the control of the Board, is responsible for supervising, controlling, and directing the programming, workforce, and finances. By 1997, Miller also assumed the duties of Treasurer. In both positions, he was responsible for reporting to the Board on areas under his control.
In early March 2002, the future use of the facility came into question. Through his chain of command, Miller received instructions from Chief Jones to give a tour of the PAL facility to the executive board of the Milwaukee area Boys and Girls Club. While giving the tour, Miller learned that Chief Jones had been discussing a possible facilities merger between PAL and the Boys and Girls Club. When Miller responded that this was the first he had heard of the issue, he was told that “. . . if the Chief wants it, he gets it.” Tr. Rec. R.50, Dep. Ex. 24, p.3. Within days of the tour, Miller learned that a local Boys and Girls Club was closing, and that it was considering the PAL facility as its new home. On March 21, Jeff Snell of the Boys and Girls Club of Greater Milwaukee wrote to Chief Jones outlining the next steps to be taken in the merger.
On March 22, 2002, PAL Chairman Harris informed the Board of the proposed merger. He also informed them that the Boys and Girls Club was willing to pay for the costs of the facility‘s staffing and operation, but had not addressed the outstanding expense of the building itself. At that meeting, Captain Haynes, Miller‘s commanding officer in the CSD, and Miller provided Chairman Harris with a copy of the letter from Snell.
Miller worked with Chairman Harris and other members of the Board to review and respond to the proposed merger. After reviewing PAL‘s national bylaws, Miller and Captain Haynes concluded that the proposal was contrary to the organization‘s mission. Miller openly opposed the merger, reasoning that if the Boys and Girls Club operated
Chairman Harris wrote to Chief Jones, informing him that no single member of the Board could unilaterally bind the organization, and that the proposed merger likely violated PAL national bylaws. Chief Jones was not pleased with Harris‘s letter. Shortly after they traded correspondence, Chairman Harris and Director Zigman met with Chief Jones in person and told him that they and Miller opposed the merger.
On March 25 and 26, 2002, Chief Jones confronted his staff regarding the PAL Board opposition to the merger. He yelled at Captain Haynes for passing Snell‘s letter on to Chairman Harris and told both of them that he put them on the PAL Board and could transfer them off just as easily. Chief Jones then called a meeting with every officer on the PAL Board to discuss the matter. During the meeting he publicly reprimanded Haynes and Miller. Two days later, Haynes was transferred to a position in the Criminal Investigation Bureau; she had no prior experience with the group.
Chief Jones attended the next three straight PAL Board meetings, a first in his tenure with the organization. At the April 9, meeting, Jones was described as being angry with Chairman Harris‘s letter and publicly doubted that PAL had the capacity to manage the new facility. On April 19, Jones informed the Board that he would not allocate MPD officers to staff the new facility and instructed them to write the Boys and Girls Club to request a plan for merger. He also told the Board that Miller would be demoted from
By May 24, it was clear that the Boys and Girls Club merger would not satisfy the entire PAL Board. Financially, the Club‘s proposal did not contribute to the costs of the building debt. Furthermore, other members of the Board greatly valued Miller‘s opinion, given his involvement with the project, and agreed that the merger would effectively end PAL. That day, Miller and Director Zigman voted against any continued dialogue with the Club. During subsequent meetings in the summer of 2002, the Board turned to Miller for advice, and he continued to oppose the merger.
On July 8, Chief Jones implicitly threatened Miller. At Jones‘s direction, Deputy Chief Schunk reminded Miller that the Chief was responsible for setting MPD policy and how MPD officers interacted with PAL. Jones also reassigned numerous MPD officers that worked with PAL to the Police Training Academy, effectively cutting them off from serving or communicating with the program. On August 30, Miller was notified by the MPD Internal Affairs Division that he was being investigated for “[f]ailing to treat as confidential the business of the department[; s]peaking on behalf of the department without authorization from the Chief . . . [i]n reference to a conversation you allegedly had with Bob Harris concerning the PAL program.” Tr. Rec. 50, Dep. Ex. 7.
On September 27, 2002, Chief Jones informed the Board that Miller was to be removed as Executive Director, and
On November 4, the Board and Chief Jones were able to agree on a job description for Miller‘s new position. Following this agreement, Jones wrote to Chairman Harris on November 15 and informed him that while Miller would fulfill his new duties, he would be unable to do anything beyond these requirements. This secondary limitation meant that Miller could no longer serve as a voting member of the Board.
On January 6, 2003, Miller filed a citizen complaint against Chief Jones with the City of Milwaukee Fire and Police Commission, a civilian oversight body. In the complaint, Miller alleged that Chief Jones, inter alia, coerced the PAL Board, engaged in retaliatory acts, and unlawfully interfered with the private business of another. Miller‘s complaint included the relevant Milwaukee Police Department Rule and Regulation for each alleged violation. Tr. Rec. 50, Dep. Ex. 24. Shortly thereafter, Miller also raised questions about certain financial transactions implicating PAL‘s attorney, their construction contractor, and State Senator George. Miller brought these matters to the attention of Chairman Harris, who then raised them with the Board.
In May 2003, Miller received conflicting instructions regarding his CSD reporting duties from his supervisor, Captain Debra Davidoski. (Davidoski had replaced Haynes in April 2002, when Haynes was transferred to Criminal Investigations.) On May 16, Davidoski complained to Deputy Chief Schunk about Miller‘s performance, and
After Miller‘s transfer, Sergeant Banks assumed the Program Director‘s role and did everything Miller had previously done as Executive Director. This included hiring and firing civilian employees, directing officers, handling PAL finances, and attending and voting at Board meetings. The curtailment of Miller‘s involvement in PAL also affected community interaction with the organization. As Miller‘s role was reduced, community and officer involvement dropped off, and when he was transferred, key financial backers stopped donating.
At the close of discovery, Chief Jones moved for summary judgment. He argued there were no material facts in dispute and that he was entitled to qualified immunity as a matter of law. Judge Curran denied summary judgment on the question of law and Jones now appeals pursuant to
II. DISCUSSION
Summary judgment is appropriate only where the moving party demonstrates “there is no genuine issue as to any material fact and that [they are] entitled to a judgment as a matter of law.”
Government officials enjoy qualified immunity, and are thus shielded from civil liability, ” ‘as long as their actions could reasonably have been thought consistent with the rights they are alleged to have violated.’ ” Schad v. Jones, 415 F.3d 671, 673 (7th Cir. 2005) (citing Andersen v. Creighton, 483 U.S. 635, 638 (1987)). To determine whether an official is entitled to qualified immunity we look to two issues. First, taken in a light most favorable to the party asserting the injury, the facts must show the official violated a constitutional right. Finsel v. Cruppenink, 326 F.3d 903, 906 (7th Cir. 2003) (citing Saucier v. Katz, 533 U.S. 194, 201-02 (2001)). Second, we look to see if the right was “clearly established at the time of the alleged violation.” Id. (citing Doyle v. Camelot Care Centers, Inc., 305 F.3d 603 (7th Cir. 2002)). To be “clearly established,” the right in question must be
sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.
Anderson, 483 U.S. at 640 (citation omitted). For a right to be clearly established, however, we need not have a prior case that is founded on materially similar facts; officials may still be on notice in “novel factual circumstances.” Finsel at 906 (citing Hope v. Pelzer, 536 U.S. 730, 741 (2002)).
The district court‘s denial of defendant‘s motion for summary judgment on qualified immunity is immediately appealable under
A. Protected Speech.
Regarding the first prong of our qualified immunity analysis, Miller claims that Jones transferred him from the Community Services Division to patrol duty in retaliation for speech that was protected by the First Amendment pursuant to
To be protected, employee speech must relate to a matter of “political, social, or other concern to the community. . . .” Connick v. Myers, 461 U.S. 138, 146 (1983). Connick held that when an “employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest . . . a federal court is not the appropriate forum in which to review the wisdom of the personnel decision taken by a public agency. . . .” Id. at 147. To determine whether the employee‘s speech was that of a
Taking the facts in a light most favorable to the plaintiffs, as we must, the content of the speech at issue covers more
In this case, Miller opposed the proposed merger because it left the MPD officers without a facility to host PAL activities, thus reducing the quality of community interaction and opportunity to interact with city youth in an indirect law enforcement capacity. Further, the Boys and Girls Club offered only enough funding to cover their own operating costs, but nothing to offset the debt incurred in construction. This outcome likely violated PAL‘s national bylaws, cutting them off from receiving national funding, and implicated the integrity of the fund-raising and construction process that Miller had overseen in PAL‘s name. Chief Jones argues that there was nothing wrong in his proposal of this merger. While this may be true, the proposal is not the sole issue under discussion. There is also the matter of the pressure Chief Jones brought to bear on the PAL Board to ensure that the proposal was accepted.
Miller also raised questions about the quality of work being done on the new facility and certain financial transactions that implicated PAL‘s attorney and Wisconsin State Senator George. These statements touch on the propriety of fiscal management by government officials of a financially independent community organization, and were not limited, like Schad, to ordinary matters of purely internal operation. These were no mere hypothetical concerns; Senator George was later indicted on numerous counts, including charges on this matter, and pleaded guilty to receiving kickbacks (
We find it hard to imagine that the Milwaukee public would not be concerned with the Chief of Police using his official position to coerce a financially independent organization into a potentially ruinous merger. This concern seems particularly acute when the Chief served on the Board of Directors of both organizations. Or that the public would not take an interest in their elected representatives’ misappropriation of monies intended for their benefit. Indeed, the Milwaukee Journal Sentinel eventually covered portions of the scheme. Tr. Rec. 50, Ex. E.
The form of Miller‘s speech also indicates that the matter was one of public concern. After raising his concerns with the PAL Board and MPD, he filed a citizen‘s complaint with
Finally, we consider the context of the speech at issue, evaluating Miller‘s motive and circumstances. See Schad, 415 F.3d at 676 (citation omitted). While a statement born of pure personal interest does not constitute a public concern, a mere personal aspect of the speaker‘s motivation will not defeat the entire speech. See Kokkinis v. Ivkovich, 185 F.3d 840, 844 (7th Cir. 1999). Jones argues that the plaintiff was motivated purely by personal concern in that he was only interested in preserving his autonomy and job at PAL. While the scope of Miller‘s authority at PAL had been curtailed at Jones‘s demand during the months leading up to his complaint, Miller continued to work with the organization as the Program Director and maintained his job with the MPD Community Services Division. Jones has failed to offer any evidence indicating that Miller‘s status with the former was directly linked to his assignment with the latter. Moreover, Miller‘s repeated statements to the Board addressed the negative impact of the merger on the opportunity for MPD officers to interact with the community and that the Boys and Girls Club offered no
Regarding the circumstances of his speech, Jones claims that Miller‘s statements were not protected because they were within the scope of his regular job duties. As initially noted in Gonzalez, and clarified in Delgado, statements made in the course of the “routine discharge of assigned functions, where there is no suggestion of public motivation” do not indicate that the employee set out to speak as a citizen on matters of public concern. See Spiegla, 371 F.3d at 939 (emphasis added); Gonzalez, 239 F.3d at 941; Delgado, 282 F.3d at 519. Where, as is the case here, the statement at issue arose from a discretionary act involving independent judgment and action, the speech is more likely to suggest the employee spoke as a citizen on a matter of public concern. See Delgado, 282 F.3d at 519. Miller‘s opposition to the proposed merger may hardly be said to be a routine discharge of his duties as an officer with the MPD Community Services Division. His judgment on the matter followed noted consideration of PAL‘s national bylaws and was informed by his understanding and experience of the organization‘s structure, operation, and financial obligations. While he may have been required to undertake this review, he was not required to recommend a particular outcome. This stands in marked contrast to our finding in Gonzalez where the plaintiff could have been punished for not making the statements at issue there. 239 F.3d at 941-42. Nothing before us indicates that Miller may have been punished for not opposing the merger. In fact, Miller was investigated by the MPD Internal Affairs Division for discussing the matter with Chairman Harris and the PAL board, an action which was part of his duties as the MPD liaison to the organization.
Additionally, Miller‘s January 2003 statements on the financial irregularities and contractor performance put both the MPD and the PAL Board on notice regarding missing funds and possible breach of contract. While monitoring these issues was part of his prior duties as Executive Director and Treasurer, he had been demoted to Program Director and restricted from holding “any other positions” per Chief Jones‘s November 15, 2002, letter to the Board. Tr. Rec. 50, Dep. Ex. 17. Managing construction and auditing PAL‘s finances are not listed in the Program Director‘s job description. Id. At most, Miller was responsible for preparing and monitoring the budget with the Managing Director and reporting to the Board Finance Committee. Given this precise and newly limited job description, we cannot find that Miller‘s subsequent and consistent reporting on these issues was wholly within the scope of his duties. The present scenario is similar to that of Spiegla, where the plaintiff was responsible for implementing prison security policies, but took it upon herself to question her superiors’ policy change that may have decreased security. See Spiegla, 371 F.3d at 939. We held this questioning was not part of her core functions and was akin to a citizen raising a matter of public concern. Id. Similarly, where Miller was instructed to act through the Managing Director and “[m]aintain confidentiality of all information” he chose instead to bring his concerns to his supervisors in both PAL and the MPD. Tr. Rec. 50, Dep. Ex. 17, p.2. To claim this speech was entirely within the scope of his job duties and not a matter of public concern “sweeps much too broadly.” Spiegla, 371 F.3d at 939.
B. Prior Decisions on Matters of Public Concern.
While we find that Miller‘s speech rises to the level of public concern, Chief Jones‘s actions would still be protected were this constitutional violation not “clearly established” at the time of the alleged conduct. Finsel, 326 F.3d at 906 (citation omitted). It is well established by the Supreme
Defendant argues that rights in this area are not clearly established, and that the Supreme Court‘s decision in City of San Diego v. Roe proclaims as much. In San Diego, the Supreme Court wrote that “[a]lthough the boundaries of the public concern test are not well-defined, Connick provides some guidance . . . [i]t directs courts to examine the ‘content, form, and context of a given statement, as revealed by the whole record. . . .’ ” 125 S.Ct. at 525. It is this three-part examination that our cases have applied since Connick was handed down. See, e.g., Yoggerst v. Hedges, 739 F.2d 293 (7th Cir. 1984). To leap from the simple observation that the boundaries of what constitutes public concern require some searching, to the argument that after San Diego “no reasonable law enforcement official” may be expected to determine what is appropriate behavior in this realm, is a step too far. Nothing in San Diego reformed the core of our jurisprudence on the matter.
Nor did San Diego strike down Delgado, where we held that employee speech on a matter of public concern was protected under the First Amendment, and therefore protected against retaliatory transfers, when it grew out of some discretionary act. See 282 F.3d at 516-21. For examples of similar factual scenarios, Chief Jones may have turned to our holding in Campbell v. Towse, where we held that a police officer‘s speech criticizing the management of a community-oriented policing program was a matter of public concern. See 99 F.3d 820 (7th Cir. 1996). Additionally, Jones may have turned to Knapp v. Whitaker, wherein we held a public school teacher had spoken on a matter of public concern when protesting an inequitable reimburse-
III. CONCLUSION
For the foregoing reasons we AFFIRM the judgment of the district court.
Teste:
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—4-17-06