Appellant Tommy Smith, formerly the chief of police for the City of Elkins, sued the City’s mayor, Appellee Wallace Brt, alleging a violation of the Arkansas Civil Rights Act of 1993 for retaliatory discharge in violation of his right to freedom of speech under the Arkansas Constitutiоn. Smith now appeals from the circuit court’s grant of summary judgment in favor of Mayor Brt. The crux of Smith’s argument on appeal is that the circuit court misapplied the applicable law in determining that “there is no genuine issue of material fact in dispute.” We аffirm the circuit court’s dismissal of this case.
Smith attended a meeting of the Elkins City Council on April 10, 2003. At that time, he was Chief of Police for the City of Elkins. During the meeting, Smith decided to inquire about the proposed enforcement of a building moratorium previously imposed by the city council. His questions at the meeting specifically related to potential litigation costs the City might incur if Leonard Gabbard, the developer of a local subdivision, decided to sue the City upon its enforcement of the building moratorium.
When Smith took the floor tо speak, not only as the police chief but also as a private citizen, he prefaced his comments regarding the building moratorium by acknowledging that it might be against his self-interest to speak: “I work for the city, and I may be shooting myself in the foot.” According to Smith, one of the council members, Lacy Randall, responded by stating, “[W]ell, Barney [Fife], if you keep your bullet in your pocket, you wouldn’t be shooting yourself through the foot.” Smith became so upset as a result of this remark that he left the meeting and went outside. Shortly before the meeting adjourned, Smith went back into the building
Kevin Caler, a City employee respоnsible for the maintenance of the City’s parks, streets, and water and sewer systems, was also at the council meeting. After the meeting, he reported to the mayor that he smelled the odor of alcohol on Smith’s breath that night. 1 Four days later, on April 14, 2003, Mayor Brt issued a written reprimand in which he reprimanded Smith for drinking at a public meeting and for his unprofessional comments during and after the meeting. A few days later, the mayor discovered that police reports on several vehicle break-ins and thefts in a local nеighborhood had not been placed in the police department’s files. Upon learning about the missing or incomplete reports, Mayor Brt notified Smith by a letter dated April 25, 2003, that he was discharged as Chief of Police for the City of Elkins, effective April 28, 2003. That lеtter, however, did not set forth the reasons for Smith’s termination as police chief.
In deposition testimony, Smith disputed Mayor Brt’s version of the circumstances surrounding the local neighborhood break-ins and the missing reports. He stated that the task of completing thе reports had been assigned to a subordinate officer. Moreover, Smith claimed that he was unaware of any problems with his department’s case files until Mayor Brt testified at his deposition about the missing or incomplete reports.
On July 23, 2003, Smith sued Mayor Brt in his officiаl capacity and his individual capacity. In the complaint, Smith contended that Mayor Brt fired him in direct retaliation for the comments Smith made about the City’s building moratorium at the council meeting on April 10, 2003. He further asserted that the mayor’s termination of his employment as police chief had “no other lawful purpose.” Finally, he alleged that the mayor made public statements that Smith was terminated for drinking on the job, which Smith denounced as being “a ridiculous lie.” In sum, Smith submitted that Mayor Brt’s actions were in violation of the Arkansas Civil Rights Act of 1993, codified at Ark. Code Ann. §§ 16-123-101 though 108 (Supp. 2003), and the freedom of speech provision contained in the Arkansas Constitution, Ark. Const, art. 2, § 6. As a result of being deprived of his constitutional rights, Smith alleged that he suffered loss of employment, mental anguish, and embarrassment. He sought both compensatory and punitive damages, court costs and attorney’s fees. Mayor Brt responded by filing an answer that denied Smith’s claims and asserted, among other things, that he was entitled to all immunities available under the law, including but not limited to absolute аnd qualified immunity.
Approximately one year later, Mayor Brt filed a motion for summary judgment, arguing that there were no genuine issues of material fact. His brief in support of the motion set out three reasons why the circuit court should grant summary judgment: (1) Smith’s statements did not constitutе a matter of public concern, (2) Smith would have been terminated in the absence of his statement, and (3) Mayor Brt is entitled to qualified immunity.
Smith now appeals from the circuit court’s summary-judgment order. On appeal, Smith contends that (1) the trial court erred in granting summary judgment on the ground that Smith failed to demonstrate a violation of his right to frеedom of expression under the Arkansas Constitution and (2) that he has alleged sufficient facts to show that the mayor impermissibly infringed on his liberty interest when Mayor Brt publicly stated that he was fired for drinking.
We assumed this case as it involves the interpretation of the Arkansas Constitution. Ark. Sup. Ct. R. 1-2(a)(1) (2005). The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Dodson v. Taylor,
Before we reach the substance of Smith’s constitutional claims, we must first determine whether Mayor Brt is entitled to qualified immunity. Rainey v. Hartness,
(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions,agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.
(b) No tоrt action shall lie against any such political subdivision because of the acts of its agents and employees.
Ark. Code Ann. § 21-9-301 (Repl. 2004). The determination of whether an official is entitled to claim immunity from suit is purely a question of law. Helena-West Helena Sch. Dist. v. Monday,
As stated earlier, Smith sued Mayor Brt in his official capacity and his individual capacity. A suit against the city’s official in his or her official capacity is not a suit against that person, but rather a suit against that official’s office. See Fegans v. Norris,
Our interpretation of section 21-9-301 must begin with the analysis this court has used in interpreting the cоunterpart qualified-immunity statute that applies to state employees, codified at Ark. Code Ann. § 19-10-305. Section 19-10-305 provides state employees with qualified immunity from civil liability for non-malicious acts occurring within the course of their employment. See Beaulieu v. Gray,
The inquiry outlined above is a restatement of the standard used by this court to evaluate motions for summary judgment on the ground of qualified immunity. See Baldridge v. Cordes, supra (citing Pace v. City of Des Moines,
In applying the analysis adopted by this court in Fegans v. Norris, supra, to this case, we have no doubt that Smith has alleged a violation of a clearly established constitutional right — the right to freedom of speech under the Arkansas Constitution, Ark. Const, art. 2, § 6. Smith has failed, however, to raise a genuine issue of fact as to whether the mayor would have known that his termination of Smith’s employment as police chief violated that clearly established right. The pleadings, depositions, and exhibits reflect that the mayor terminated Smith’s employment upon discovering that reports regarding several vehicular break-ins and thefts in a local neighborhood had not been documented. Moreover, the incident upon which Smith’s constitutional claim is based occurred fifteen days prior to the termination. Under these circumstances, Mayor Brt could not have reasonably known that his termination of Smith’s employment as police chief would violate Smith’s constitutional right to free speech. Accordingly, because Smith has not raised a genuine issue of fact as to whether Mayor Brt would have known that the dismissal violated Smith’s clearly established constitutional right, we hold that Mayor Brt is entitled to qualified immunity under Ark. Code Ann. § 21-9-301.
Because we affirm the circuit court’s grant of summary judgment on the basis of qualified immunity, we need not reach the other issues raised on appeal.
Affirmed.
Notes
Smith denied drinking any alcohol that day.